Neutral Citation Number: [2007] EWCA Crim 2486
Case No: 200704790 A2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM  MAIDSTONE CROWN COURT
S20060142
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 30/10/2007
Before :
LORD JUSTICE PILL
and
THE HONOURABLE MR JUSTICE HEDLEY
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Between :

	William John MACKIE	Appellant	
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	The Crown	Respondent	

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Mr Alistair J. Keith (instructed by Registrar of Criminal Appeals) for the Respondent
Ms Jane Scotchmer (instructed by Crown Prosecution Service) for the Respondent

Hearing dates : 5th October 2007
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Judgment
The Hon. Mr. Justice Hedley:
1.	This application for permission to appeal against sentence has been referred to the Full Court by the Registrar who has granted the necessary extension of time.  We grant leave to appeal and now give our judgment on the appeal having received submissions both oral and written from the Defence and the Prosecution, for which we are grateful.
2.	On 12th April 2006 the appellant pleaded guilty at the Medway Magistrates Court to an offence of assault occasioning actual bodily harm contrary to Section 47 of the Offences Against the Persons Act 1861.  On 16th May at the Crown Court at Maidstone he was sentenced by HH Judge Patience, Q.C. to Imprisonment for Public Protection with a specified term of 18 months (less 60 days spent on remand), pursuant to Section 225 Criminal Justice Act 2003.
3.	The appellant had for some time had a partner called Mrs Bennett and their relationship was somewhat volatile.  On 16th March 2006 Mrs Bennett was at home when late in the evening the appellant burst in shouting and swearing.  He punched her, seized her hair and pulled her to the floor.  The appellant left the room but soon returned when, having pulled her to the ground, he punched and kicked and damaged the skin to her ear.  Finally he desisted, the police were called and he was arrested.
4.	The appellant had previous convictions including seven for violence, with Mrs Bennett amongst those victims.  Unsurprisingly perhaps the judge was satisfied that the dangerousness provisions under Sections 224-229 of the 2003 Act were amply fulfilled nor is that finding challenged.  It was in those circumstances that he purported to pass the sentence that he did.
5.	That sentence was unlawful since by Section 224(2)(b) this did not qualify as a serious offence since the maximum penalty is five years imprisonment.  Accordingly this case did not qualify under Section 225(1)(a) and no sentence under that Section could lawfully be passed.
6.	However, the judge could and should have used his powers under Section 227 to pass an extended sentence as this offence is a specified violent offence as defined by Section 224(3) and Part 1 of Schedule 15 to the Act and the dangerousness condition was fulfilled.  The judge clearly had in mind a determinate sentence of three years imprisonment.  That would have been both proper and lawful although that sentence the judge should under Section 227(2) have extended (in respect of licence) and could have done so by up to two years taking the case to the permitted maximum under Section 227(5).  Had he done that no complaint could or would have been made of the sentence.
7.	Can this Court now substitute this sentence for the one in fact passed by the judge?  The question is whether in any sense a sentence of a different quality under a different statutory provision is, taking the case as a whole, more serious than the one actually passed (assuming it to have been lawful) since, if so, that would contravene Section 11(3) of the Criminal Appeal Act 1968.  Alternatively must the court simply quash the indeterminate element of the sentence leaving the three year sentence to stand alone?  That in itself would not be a lawful sentence given that, the criteria under Section 227 having been made out, an extended sentence becomes mandatory under Section 227(2).
8.	A person sentenced to imprisonment for public protection may not have his case considered by the Parole Board until he has served the minimum term.  Thereafter he may not be released until it is considered safe to do.  That may, of course, be a time considerably in excess of the minimum term.  Section 225(4) of the 2003 Act imports into this sentence the provisions of Chapter 2 of Part 2 of the Crime (Sentences) Act 1997 in respect of licences.  That is further effected under Section 230 and Paragraph 2 of Schedule 18 of the 2003 Act by inserting a new Section 31A in the 1997 Act.  The result is that after release he remains subject to licence indefinitely unless the Parole Board direct that the licence shall cease to have effect.  However, no such direction can be given until at least 10 years have expired since the date of actual release.
9.	An extended sentence entitles a prisoner to be released at the half way point of the custodial term specified (here after eighteen months), the custodial term being assessed in accordance with Section 153(2) of the 2003 Act.  He then remains on licence (and, of course, at risk of recall) until the expiration of the whole term (here five years) whereafter he is wholly discharged from the sentence.
10.	It follows that in this case, taking the case as a whole, that the proposed sentence would not be more onerous that the one in fact passed.  Moreover this proposal would comply with the Court’s statutory obligations under Section 227.  In those circumstances we propose to allow this appeal by quashing the sentence passed in the Crown Court and substituting therefor a 5 year extended sentence comprising a custodial term of 3 years and an extension period of 2 years with the time spent on remand counting towards the custodial term.