No. 2006/04101/A6

Neutral Citation Number: [2006] EWCA Crim 2924
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Tuesday  7  November  2006

B e f o r e:

LORD  JUSTICE  HUGHES

MR  JUSTICE  HENRIQUES

and

MR  JUSTICE  FIELD
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R E G I N A

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ANDREW  LAY
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MR M NEWBY appeared on behalf of THE APPELLANT

MISS J CUTTS appeared on behalf of THE CROWN
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J U D G M E N T
Tuesday  7  November  2006

LORD JUSTICE HUGHES:  
1.  This is the appellant's second visit to this court in relation to a single sentence.  On the last occasion this court, differently constituted, dealt with the merits of the length and principle of an extended sentence.  The appellant appears before us today on a reference by the Criminal Cases Review Commission.  The reference raises a significant point of general interest in relation to the passing of extended sentences consecutively with another sentence or sentences.

2.  It must be remembered that there are available to trial judges, depending on the date of the offences, three different kinds of sentence, all of which are called "extended sentences", but which differ significantly.  That they have the same name is unfortunate because it is apt to confuse.  In historical order the first form of sentence is that provided for by section 86 of the Powers of Criminal Courts (Sentencing) Act 2000 in relation to sexual offences committed before 30 September 1998.  Whilst that is quite a long time ago, offences of that kind frequently still come to trial.  That section enables the sentencer to direct that the licence which follows release shall run not to the three-quarter mark in the overall sentence, but to the end of the sentence.  

3.  The second type of extended sentence is that provided for by section 85 of the Powers of Criminal Courts (Sentencing) Act 2000.  That relates to offences which are committed between 30 September 1998 and 4 April 2005.  That section enables the court in the case of a violent or sexual offence to pass a sentence which is made up of a custodial term and an extended licence period.  

4.  Lastly, in relation to offences committed after 4 April 2005, there is now a new form of extended sentence created by section 227 of the Criminal Justice Act 2003.  That applies where the offender comes within the dangerousness provisions of Chapter 5 of that statute.  It also enables the court (although in different circumstances) to pass a sentence which is made up of a custodial term and a further extension period.

5.  The present case concerns an extended sentence of the second type.  It is a sentence governed by section 85 of the Powers of Criminal Courts (Sentencing) Act.  The appellant had pleaded guilty to two sets of sexual offences.  The first amounted to seeking out through an internet chat room a very young girl.  She was 12 and he knew it.  He progressively corrupted her by a mixture of sexual excitement, flattery and money.  He encouraged her to take indecent photographs of herself, to truant from school, to meet him clandestinely, and in due course to masturbate him and later to have sexual intercourse with him.  By the time of the sexual intercourse she was just 13.  That course of conduct gave rise to a series of offences of indecent assault, unlawful sexual intercourse, gross indecency and the making of indecent photographs.

6.  In addition to that, the appellant was found to have on his computer 3,000 indecent images of children.  They were mostly in the lower Oliver categories, but there were a significant number in categories 3, 4 and 5.  The possession of those images gave rise to a second indictment containing 21 sample counts of making indecent images.  The appellant had no previous convictions, but the probation report upon him was discouraging.  It indicated that he minimised the offences, blamed the girl for leading him on, and described his interest in child pornography as "mere curiosity".  Accordingly, he plainly represented a significant risk in the future.  That was the conclusion to which the author of the report as well as the trial judge very properly came.

7.  On the first indictment various concurrent sentences were imposed.  The longest was four years' imprisonment.  On the second indictment sentences of two years concurrent with one another were imposed, but they were made consecutive to the first indictment.  Accordingly, the total was thus far six years' imprisonment.  It was a paradigm case for an extended sentence.  The judge, recognising that, simply said that he extended the licence period by five years.  He did not identify the offences for which an extended sentence was imposed.

8.  When this court heard the appeal on its merits, it upheld both the overall length of the custodial term and the five year extension of licence.  It corrected the omission of the trial judge by providing that the extended sentence was imposed for two offences of indecent assault.  They were sentences for which the judge's term had been four years.  Accordingly, they now became extended sentences of nine years: a custodial element of four plus a five year extension period.  That made the necessary technical correction without altering the substance of what the judge had, rightly, wanted to achieve.  

9.  At that stage no one took any point upon the existence of the sentences on the second indictment or upon the fact that those two year sentences were consecutive to the sentences on the first indictment, and thus consecutive to the extended sentence on the first indictment.  That is the narrow but significant point upon which the Criminal Cases Review Commission now re-refers this case to this court.

10.  This court has expressed concern in a number of cases that the practice of passing consecutive sentences, where either one or both of them is an extended sentence under section 85, whilst it is not unlawful, may give rise to practical administrative problems.  For that reason this court has suggested that where possible the practice should be avoided.  Specifically, concern has been expressed that a prisoner might at the same time be both on licence and serving a consecutive determinate custodial term: see (among many others) R v Nelson [2002] 1 Cr App R(S) 565 at paragraph 23, R v Pepper [2005] EWCA Crim 1181, and R v Phillips [2006] EWCA Crim 2145.  

11.  The submission on behalf of the appellant is that the approach of those cases should be adopted.  It is accepted that it would be perfectly proper for a judge who has good grounds to impose an extended sentence under section 85, to aggregate what would otherwise be consecutive custodial terms and pass a single sentence, together with the extended licence, for one offence or for that matter for several concurrently.  In the present case that would mean an extended sentence of eleven years, that is a custodial term of six years (representing four, plus two, as passed by the judge), together with an extension period of five years.  That aggregation course was expressly approved by this court in R v KG [2004] EWCA Crim 2697 at paragraph 8.  The Commission correctly points out that if that course were to be taken here, an eleven year extended sentence would not be possible for offences of indecent assault.  That is because an extended sentence, taking its custodial and extension periods together, cannot by statute exceed the statutory maximum for the offence.  In the case of indecent assault the statutory maximum is ten years.  Accordingly it is submitted that in this case, although the sentence be varied by the aggregation route, it should be limited to a six year custodial term and a four (rather than five) year extension period, thus keeping the total within the available statutory maximum.  It was the possibility of this happening that led the Commission to conclude that there was a real possibility that upon reference there might be a small but significant benefit to the appellant.

12.  As it turns out, the reference has afforded us the opportunity to consider material which has not been available to previous courts.  First and foremost is the recent decision of this court in R v Brown and Butterworth [2006] EWCA Crim 1996.  That case concerned the new-style extended sentence of the kind which we have described as the third type, that is to say a sentence under section 227 of the Criminal Justice Act 2003, rather than, as in this case, one under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000.  However, in that case this court said:

		"23.  .... whereas an offender, the subject of an extended sentence, may not be released after serving half of the custodial term until the Parole Board is satisfied it is no longer necessary for the protection of the public to confine him, an offender serving a fixed term or determinate custodial sentence of 12 months or more will be released after serving half of his sentence (see section 244(3)(a)).  It follows that if a consecutive determinate sentence is passed to an extended sentence it may be difficult to determine when the custodial element of the extended term ends and the determinate sentence begins.

		24.  In our judgment these difficulties do not arise if an extended sentence is made consecutive to a determinate sentence....

		....

		27.  .... the following points should be observed.  First, consecutive extended sentences appear to provide considerable problems in determining the application of the appropriate licence period once the custodial element has been served.  Secondly, similar problems will arise if a determinate sentence is made consecutive to an extended sentence.  Accordingly we take the view that consecutive extended sentences and a determinate sentence consecutive to an extended sentence are, in general terms, not appropriate and should be avoided.  However, we see no reason to suggest that such problems will arise if the extended sentence is made consecutive to the determinate sentence.

		28.  There is no reason to suppose that concurrent extended sentences raise any of the above problems, nor that an extended sentence concurrent with a determinate sentence will cause insuperable difficulties. ...."

13.  We have also been provided with extracts from the Prison Service Calculation Manual.  From that document it is clear that where a section 85 extended sentence is passed consecutively to a determinate sentence the practice of the prison authorities is simply to add together the two custodial terms, treat them as a single custodial term, apply the then current release provisions to that, and then add the extension period to the licence that there would otherwise be.  

14.  Given the decision in Brown and Butterworth and the practice of the prison authorities, the position seems to us to be this.  We can see that one section 85 extended sentence consecutive to another section 85 sentence might cause difficulties because there might be doubt about which governs the release date.  We suggest that consecutive extended sentences are unnecessary and should be avoided.  There is no difficulty with concurrent extended sentences under section 85, although once again unless there is a particular reason to do it we suggest that there is usually no need.  We recognise that there might be a need to do it, particularly after trial, if there were a real possibility that a defendant's conviction for one offence might be vulnerable when another is not.  We are unable to see any reason why the reasoning in Brown and Butterworth should not apply equally to a section 85 extended sentence, just as it does to a Criminal Justice Act 2003 extended sentence.  Therefore, to make a determinate sentence consecutive to a section 85 extended sentence, with the determinate sentence to be served afterwards, ought to be avoided.  But there is no difficulty with a determinate sentence to be followed by a consecutive section 85 extended sentence.  We can envisage a number of situations in which it may be necessary for there to be a consecutive extended sentence.  So long as regard is had to totality, a sentence consisting of a determinate sentence first, followed by a section 85 extended sentence afterwards, and to run consecutively to it, is perfectly proper.

15.  In this case this court has already considered totality and has held that the judge's overall sentence was right.  Accordingly, we adopt the Brown and Butterworth approach and we vary the sentence in this way.  The various sentences of two years, all concurrent to one another, on the second indictment (T20027184) are to be served first.  The sentences, all concurrent to one another, on the first indictment (T20030062) will be served consecutively to those on the second indictment, that is to say after them.  The sentences on the first indictment (062) remain as ordered by this court on 4 September 2003, that is to say they include on counts 1 and 4 extended sentences under section 85 of nine years, consisting of a custodial term of four years and an extension period of five.  On all other counts the sentences upon that indictment remain as passed by the trial judge.  All sentences on that indictment (062) are concurrent to one another, but are to be served consecutively to, and after, those on indictment 7184.

16.  In summary, for the assistance of those who have to grapple with these complex provisions, the position appears to us to be as follows:

	1.  Section 85
		(a)  Do not pass one extended sentence consecutive to another;

		(b)  Concurrent extended sentences are possible, though usually unnecessary;

		(c)  Do not pass an extended sentence followed by a consecutive determinate sentence; but

		(d)  a determinate sentence followed by a consecutive extended sentence is proper, providing the totality is justified by the facts of the case;

		(e)  if passing a sentence in form (d), make it absolutely clear that the court record specifies that the extended sentence is to be served second.

	(2)  For Criminal Justice Act 2003 extended sentences, see Brown and Butterworth.

	(3)  We have not addressed section 86 Powers of Criminal Courts (Sentencing) Act 2000 sentences, but there appears to be no reason not to apply the same principles as those which apply to section 85.

17.  For those reasons this appeal is allowed to the extent of the variation which we have explained.