When should a second sentence start? Public Prosecutor v MHN

A young man was sentenced for drug and other offences and given a month’s deferment before reporting to prison. Less than two weeks later he was arrested for possessing and consuming methamphetamine. The question for the court was whether the new sentence should start straight away or only when the first one ended.

The facts

On 6 April 2023 the accused received an initial sentence of three years, six months and seven weeks’ imprisonment and a fine, with deferment until 5 May 2023. On 18 April 2023 he was arrested. He later pleaded guilty to possessing not less than 8.34g of methamphetamine and to consumption as a first-tier long-term offender, which carries a mandatory minimum of five years (at [1]–[3]). The Prosecution argued the new sentence should start when the initial sentence expired; the Defence argued it should start immediately (at [2]).

A six-step approach

Finding neither side’s approach satisfactory, the court drew a series of steps from the case law for cases where fresh offences follow an initial sentence (at [55]):

1. Starting point. The later sentence should start when the initial sentence ends, because the offences arise from different transactions (at [56]).
2. Same legally protected interest? If the later offences invade the same interest as the earlier ones, the court asks whether the offender is being punished twice for essentially similar conduct (at [57]–[58]).
3. Benefit of the initial sentence. An offender who had not yet served any of the earlier sentence had none of its rehabilitative or deterrent value.
4. Seriousness and deterrence. Whether there is a compelling reason, such as absconding or a heavy record, to insist on the full aggregate term.
5. Reducing the later sentence. Whether the later sentence can be shortened instead, which a mandatory minimum may prevent.
6. Adjusting for justice. Calibrating the later sentence so the overall term reflects the aggravating act of reoffending (at [73]–[74]).

Applying the steps

The fresh offences were of the same kind as the earlier consumption offence, and the accused had not served any of the earlier sentence. Unlike offenders in other cases, he had not absconded, was younger and less heavily traced. The mandatory minimum meant the later sentence could not be reduced (at [76]–[80]). The court therefore ordered the new sentence of five years and eight months’ imprisonment and three strokes of the cane to start immediately. It ran the eight-month possession sentence consecutively, which it would not ordinarily have done, so the overall term would be about six years and five months rather than a bare extension (at [81]–[83]).

Our role

Akesh Abhilash acted for the accused. The Defence submitted that the new sentence should start immediately, not at the end of the earlier sentence as the Prosecution argued (at [2]). The court agreed: given the similarity of the offences, that the accused had served none of the earlier sentence, his youth, his lighter record and the fact that he had not absconded, the full aggregate term would have been disproportionate (at [77]–[80]). The court did not adopt the Defence’s proposed five-year term and calibrated the later sentence upwards (at [81]–[83]).

Why it matters

For anyone who reoffends between sentencing and surrender, when the new sentence starts can matter as much as its length. The structured approach gives defence counsel a clear way to argue that a full consecutive term would be disproportionate.

Common questions