Brown, R. v

LORD JUSTICE GAGE: As far as Butterworth is concerned, we make it clear that this was an important matter and we grant the extension and leave.

The court has before it an appeal against sentence and an application for leave to appeal against sentence, which raise important issues concerning extended sentences passed pursuant to section 227 of the Criminal Justice Act 2003 (the 2003 Act). We have heard both matters together and in this judgment we set out our decision in both cases. We start with the appeal of Craig William Robert Brown. Brown is aged 22. On 8 November 2005, at Preston Crown Court he pleaded guilty to 4 counts on an indictment containing five counts. On 29 November 2005, in respect of the counts to which he pleaded he was sentenced as follows: count 1, affray, an extended sentence of 36 months pursuant to section 227 comprising a custodial term of 22 months' imprisonment and an extension period of 14 months; count 3, breach of an ASBO, no separate penalty; count 4, intimidation of a witness, 18 months' imprisonment consecutive; count 5, breach on an ASBO, no separate penalty. The total sentence was therefore an extended sentence of 3 years, pursuant to section 227, comprising a custodial term of 22 months' imprisonment and an extension period of 14 months, with 18 months' imprisonment consecutive.

On 7 December 2005, the sentencing judge varied the sentence of 18 months' consecutive on count 4 to a sentence of four-and-a-half years' imprisonment concurrent to the sentence on count 1. The appellant appeals against sentence by leave of the single judge.

The facts can be shortly stated. On Friday 15 July 2005, Anne Kelly was at her home in Raikes Road when she heard an argument taking place outside the appellant's address across the road. She heard the appellant shout: "I'm going to smash your face in" and a man reply: "I'll ring up and get my lads down here". The appellant went into his house and came out with a sword two-and-a-half feet long and started to swing it towards another man. As the other man backed off the appellant followed him still swinging the sword. The man left the area.

The police were called. When the police officers arrived the appellant told them: "It's not me but the sword is in there". The police took possession of the sword and arrested the appellant. When he was interviewed the appellant said that it was a case of mistaken identity. He said there was another Craig Brown who looked just like him but was not him. He was released on bail.

On 5 August 2005, Miss Kelly picked out the appellant at an identity parade. Over the next two days she heard the appellant outside her home shouting "grass". Other people were with Miss Kelly when these incidents took place. At 12.40pm on 7 August 2005 the appellant shouted across the road to Miss Kelly that her house was going to be petrol bombed. In respect of these matters the appellant was arrested and interviewed on 8 August 2005. He denied that he had called Miss Kelly a grass and denied that he had threatened to petrol bomb her home. However, as we have said, he pleaded guilty to these offences.

The appellant has a large number of previous convictions. They consist of 33 convictions for 56 offences. They include four offences of possessing an offensive weapon; one offence of having a bladed article in public; one of threatening behaviour and one of assault occasioning actual bodily harm. There was before the court a pre-sentence report, which indicated that the appellant's offending started at the age of 16. The author of the report stated that since the age of 17 alcohol abuse by the appellant had become a problem. His offending had been persistent for a number of years and he had shown a capacity for violence. The author of the report was of the opinion that until there was a fundamental change in his attitude there was a high risk of the appellant re-offending.

In sentencing the appellant on 29 November 2005 the judge referred to the seriousness of the offences. He said that the history of involvement with weapons and violence meant that there was a substantial risk in the appellant's case that he would cause serious harm to others by the commission of further specified offences. He concluded that the court was bound to pass an extended sentence. The sentence had to reflect the fact that brandishing swords in public was unacceptable and that those who sought to intimidate witnesses would receive severe punishment.

On 7 December 2005, the judge reviewed the sentence which he had passed on 29 November. He said that taking into account observations of the court in R v Lang and Others [2005] EWCA Crim 2864 it was undesirable to impose a sentence consecutive to an extended sentence. Accordingly he varied the sentence in the terms to which we have referred.

Two issues of some importance arise in this appeal. They are, firstly, whether the judge in this case was right to follow guidance given in R v Lang that a determinate custodial sentence should not normally be made consecutive to an extended sentence. Secondly, whether it was appropriate to direct that a determinate sentence in length longer than the custodial element of an extended sentence should be served concurrently.

We turn to the case of James Butterworth now aged 23. His application for leave to appeal was referred to this court by the registrar. On 6 July 2005, he fell to be sentenced at the Preston Crown Court for offences to which he had pleaded guilty in the Hyndburn Magistrates' Court (the Magistrates' Court offences) and been committed for sentence; and sentences on indictment (the indictment offences), to which he had previously pleaded guilty in Preston Crown Court. In respect of the indictment offences he was sentenced to 20 months' imprisonment for a count of attempted robbery and six months' imprisonment concurrent for a count of theft. For the magistrates' court offences he was sentenced to eight months' imprisonment for assault occasioning actual bodily harm and eight months' imprisonment for an offence of affray. Those two sentences were consecutive to each other and consecutive to the sentence on indictment. The total custodial sentence was therefore three years. In addition the judge in his sentencing remarks said that applying section 227 of the 2003 Act the applicant would be subject to an extension period of two years in respect of the assault and a concurrent period of two years in respect of the affray.

The facts are as follows. First, the indictment offences: on 20 February 2005 the complainant, Graham Hughes, was on a bus travelling from Clayton le Moors to Blackburn. The appellant and a co-accused, Clough, got into the bus. They sat in the rear of the bus near to Hughes. Clough took Hughes' baseball cap and put it on his head. Hughes had a mobile telephone in his hand and Clough demanded that Hughes gave it to him. Hughes refused whereupon the appellant said: "Give me the phone or we'll leather you". Hughes again refused. Clough then hit Hughes with the back of his hand and tried unsuccessfully to take the telephone from his pocket. Clough slapped Hughes again and the appellant again threatened him with being leathered. Hughes managed to attract the attention of the driver who stopped the bus and ejected the appellant and Clough. Before being ejected the appellant took a bag of sweets valued at £8 from Hughes and said: "Watch your back". Clough left with the baseball cap, which he had taken from Hughes. CCTV footage from a bus led to the appellant and Clough being identified and arrested. At interview the appellant admitted being present but denied stealing anything from Hughes.

So far as the offences of assault and affray are concerned, they were committed when the appellant was on bail for the indictment offences. At about 9.15pm on 31 May 2005 the appellant was at a friend's house. Whilst heavily under the influence of alcohol he became involved in an argument with the residents of that house. This resulted in him head-butting Abigail Garrity-Phillips. The police were called. On arrival police officers found the appellant screaming, shouting, growling like an animal and waving his arms in the air. He ran away from the police officers but was found after a short chase. The appellant continued to be aggressive. He picked up a triangular red sign, held it above his head and threatened the police officers with it. The appellant then walked off with the road sign and took it into a public house. When the police officers entered the public house they found that the appellant had discarded the road sign and was holding a wooden stool above his head. He was threatening people with the stool. The appellant threw the stool at the police officers and had to be incapacitated by the use of CS gas spray. He was restrained and arrested. When interviewed he admitted making threats to the police and members of the public. He denied head-butting Miss Garrity-Phillips. He said he had been arguing with people at the house but did not assault anyone.

The appellant has a substantial criminal record consisting of 18 previous convictions for 23 offences. They include three offences of battery, one of affray, one of section 20 wounding, one of assault occasioning actual bodily harm, one of assault with intent to resist arrest and one of theft from the person. Before the sentencing judge there was a pre-sentence report which referred to the appellant's lengthy and unenviable record of previous offences. It was said that most of his offences occurred whilst he was under the influence of alcohol. He was impulsive and responded aggressively to confrontational situations and the author of the report was of the opinion that there was a high risk of him re-offending.

In his sentencing remarks the judge referred to the appellant's bad record and the fact that the offences of affray and assault had been committed when he was on bail. He concluded that the appellant presented a significant risk to the public as demonstrated by the facts of the offences of assault and his previous convictions for violence for specified offences. Accordingly, he passed the sentences to which we have referred.

The Registrar referred this case to the court because it appeared to him that the extended sentence was an unlawful sentence. It is common ground between counsel for the appellant and counsel for the respondent that, for reasons which we will explain, the extended sentence is unlawful. Accordingly, as we have said, we extended time and granted leave to appeal.

This case also raises difficulties in relation to the application of section 227 of the 2003 Act particularly in relation to offences committed before the provisions of the Act came into force. We should say at once that we have great sympathy with judges of the crown court who have to wrestle with the labyrinth of the sentencing provisions of the 2003 Act which are further complicated by the transitional provisions related to offences still subject to the Powers of Criminal Courts (Sentencing) Act 2000.

Before approaching the specific issues in each of these appeals we start by setting out the relevant statutory provisions. Chapter 5 of the 2003 Act is headed "Dangerous Offenders". Section 227 is headed "Extended Sentence for certain violent or sexual offences: persons 18 or over". We set it out in full:

Section 229 deals with the assessment of dangerousness. It provides that where a person has been convicted of a "specified offence" and the court must assess whether there is a significant risk to members of the public of serious harm from an offender over 18, it is subject to the assumption provided by section 229(3), which reads:

It follows that, as is now well recognised, a defendant convicted of a specified offence, who has previous convictions for relevant offences, must be assumed to be a significant risk to members of the public of serious harm, unless the court considers that it would be unreasonable to conclude there is such a risk. The first task of the sentencing judge is, therefore, to assess the risk of dangerousness according to the provisions of section 229.

The section 247 deals with the release on licence of prisoners serving extended sentences and provides in the material parts:

Finally sections 263 and 264 deal with concurrent and consecutive sections and further explain early release provisions. Section 264 has some relevance to the appeal in Butterworth.

It will be apparent from the above that 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.

In our judgment these difficulties do not arise if an extended sentence is made consecutive to a determinate sentence. Mr Close, on behalf of Brown, argued that section 264(2) may be interpreted as permitting the Secretary of State to refrain from releasing an offender where a consecutive extended sentence is passed until such time as the aggregate length of the determinate sentence, and the custodial term of the extended sentence, has expired. We do not believe that this is so. It seems to us that this would be inconsistent with the clear terms of section 247(2).

In these appeals we have received considerable assistance from all counsel and particularly from Mr Bassano who represents the respondent in each appeal. Mr Bassano has helped highlight some of the difficulties which sentencing judges face when passing extended sentences where the defendant falls to be sentenced for other non-specified offences.

At the outset we feel it may be helpful to make some short points of general application. Firstly we conclude that the court has power to pass consecutive extended sentences. We have no doubt that the court has power to pass an extended sentence consecutive to a determinate custodial sentence. It may very well be that the court has power to pass a determinate sentence consecutive to an extended sentence. As Mr Bassano points out, nothing in the statutory provisions seems to forbid any of these combinations of sentence and section 264 would appear to contemplate such sentences.

However, when the release provisions of section 247 are factored in difficulties may very well arise in respect of the calculation of dates for release and the start of the periods on licence. In those circumstances in our judgment 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.

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. However in the latter case a concurrent determinate sentence, longer than the custodial element of an extended sentence, may well have the effect of the extension being subsumed in the longer determinate sentence. It is therefore sensible where possible to avoid such a combination of sentences since it will defeat the purpose of the mandatory extended sentence.

Finally nothing that we have said is in any way intended to dilute the guidance given by the court in Lang and R v S [2005] EWCA Crim 3616. We observe that as these two appeals demonstrate extended sentences in combination with other offences can pose difficult sentencing problems and advocates should be alert to assist judges navigate their way through the complex statutory provisions.

We return to the instant appeals starting with Brown. The first ground of appeal challenges the judge's assessment of dangerousness. It is conceded that the statutory assumption in section 229(3) applies, but the appellant relies on a number of factors that, it is submitted, militate against a finding of dangerousness. They are firstly, the offences themselves did not result in any injury to any person, let alone any serious physical injury or psychological harm. Secondly, the man threatened with the sword goaded the appellant throughout the incident and made no complaint to the police. Although violence was threatened none was used. Thirdly, the appellant's records contains offences of violence towards the bottom end, it is submitted, of the scale of violent offences, and do not demonstrate that the appellant poses a risk of causing serious harm. Fourthly, no details of the fact of the offences were placed before the court without which it is difficult to assess the seriousness of them. As to this the court has now details of the offences. Fifthly, the pre-sentence report refers to the high risk of offending but not of causing serious harm. In support of this submission counsel relies on the guidance given by this court in R v Lang.

In sentencing this appellant the judge said:

It is in our judgment quite clear that the judge properly directed himself on the test applicable to assessing dangerousness. In our judgment the factors to which he referred were such as to enable him properly to conclude that the statutory assumption was not displaced. Accordingly that ground of appeal fails.

The next ground of appeal challenges the length of sentence. It is submitted that the four-and-a-half years' custodial sentence was too long. Counsel relies on a number of decisions of this court, to which we have been referred in his skeleton argument. He refers to the fact that the appellant was entitled to a discount of one third for his guilty pleas entered at the earliest opportunity, and to the general pattern of sentencing for offences of affray. Next he relies on the guidance given in Lang in which the court said that when the court imposes an extended sentence, generally it should impose a shorter concurrent sentence for other offences: see paragraph 20 of the judgment. Finally, Mr Close points to the fact that the appellant must spend at least 27 months, half of four-and-a-half years, in custody whereas under the sentence passed initially by the judge, before it was varied, the time spent in custody might have been less.

Mr Close submitted that if this court were to adopt the course of passing a determinate sentence and a consecutive extended sentence, the custodial term of the extended sentence should be less than 22 months. He submitted that the court should have in mind that extended sentences place an offender at risk of serving a much longer custodial sentence if the licence is breached. He referred to the fact that there may be an element of double counting as to seriousness, which should be avoided. That is correct, but it is an inherent part of the extended sentence regime. However, these are factors to be given some, albeit not considerable, weight.

In our judgment there was nothing unlawful in the judge sentencing the appellant to an extended sentence concurrent with the determinate sentence, which is longer than the custodial term of the extended sentence. However, the sentence of four-and-a-half years for intimidation is much longer than the extended sentence and offends against the guidance by the court given in Lang, to which we have referred. As we have already said, the general guidance in Lang should, where possible, be adhered to.

We think that in this case the judge could properly have achieved the desired structuring of the offence by passing the extended sentence for the affray consecutive to the sentence for intimidation. As we have said in our general comments, we see no reason to suggest that a sentence would be wrong in law or in principle on that basis. We accept that it is unusual and generally should be avoided where possible, but there will be cases where a non-specified offence will require consecutive sentences. In our judgment this is just such a case.

We conclude that the way that the judge first approached the sentence was correct, save that he ought to have made the extended sentence consecutive to the determinate sentence. We see nothing wrong or excessive in either of the custodial terms. Accordingly we propose to quash the sentences which he passed as varied and, for the avoidance of doubt, we substitute 18 months in respect of count 4 and the 36 months extended sentence consecutive in respect of count 1. The latter comprised of 22 months custodial and 14 months extension. To that extent and for these reasons this appeal is allowed.

We turn to the appeal in Butterworth. In an amended notice of appeal and skeleton argument submitted yesterday counsel seeks to challenge the judge's finding of dangerousness. This has been done no doubt prompted by the skeleton argument of the respondent. The submissions made on this further ground are that the sentencing judge did not have the material before him upon which properly to assess dangerousness. Further reliance is placed on the fact that the judge concluded only that the appellant presented a significant risk to the public. He did not state that he concluded that the appellant posed a risk of serious harm to the public.

We have the information before us in respect of the appellant's previous convictions. They are set out helpfully in Mr Bassano's skeleton argument. As we have said, the appellant has convictions for affray, unlawful wounding, assault occasioning actual bodily harm and an assault with intent to resist arrest. He also has three convictions for battery.

Mr Bassano makes reference to the pre-sentence report in which the author of the report records the appellant's impulsive behaviour in drink. The author of the report expressed the opinion that the risk of re-offending was high. As is pointed out by both counsel, the report does not consider the risk of serious harm if the appellant re-offends.

With commendable fairness Mr Bassano in his skeleton argument set out the factors which might favour the appellant on this issue and those which favour a finding of dangerousness. We have carefully considered these factors. The ones that impress us are those in paragraph 14 of Mr Bassano's skeleton argument. We do not set them all out. He refers to the instant offences, which did not cause serious harm; the fact that there is no evidence that any of the previous offences of violence involved serious harm; and the fact that the previous specified violent offences were committed some time ago when the appellant was aged 16 to 18.

The judge in his sentencing remarks does, as we have said, appeared not properly to have directed himself on the crucial test as whether or not the offender represented a significant risk to members of the public of serious harm occasioned by the commission by him of further offences. He said this at page 3E:

Taking into account all the factors, we are quite satisfied that the appellant represented a significant risk of committing further offences. But bearing in mind what was said in Lang by the vice-president at paragraph 11, in our view his past offending and these offences do not give rise to a risk of serious harm. In our judgment the material before the judge, the risk of serious harm, was not demonstrated and may account for the judge's failure to mention such a risk in his sentencing remarks. It follows that we allow the appeal in respect of the ground that challenges the judge's finding of dangerousness. It follows also that the extended sentences must therefore be quashed. However, we see nothing wrong with the custodial elements of these sentences and we propose to leave them unaltered. For the avoidance of doubt these will be sentences on each of the magistrates' courts offences of eight months' imprisonment consecutive to each other and consecutive to the indictment offences.

Having reached this conclusion, it may however help others if we say what our conclusions would have been if we had concluded that the test of dangerousness had been established. There can be no doubt that the extended sentences passed by the judge were unlawful. This is so for two reasons. First the sentences, which made up the custodial element, were in each case for periods of less than 12 months. Section 227(3) makes it clear that an extended sentence can only be passed in respect of a custodial term of not less than 12 months. The judge subsequently recognised this but by the time it was drawn to his attention it was too late for him to vary the sentence. Secondly, an extended sentence is a two-part sentence comprising a custodial element and an extended licence period, the extension.

In our judgment Mr Bassano's submission that the extension cannot be tacked on to two separate custodial terms is correct. The problem, however, is that the judge assessed the appellant as dangerous and in accordance with section 229(3) he therefore was obliged to pass an extended sentence. In our view the way in which he could have achieved that which he intended, provided he was right to pass an extended sentence, is the way in which Mr Bassano suggests in his skeleton argument. It is that the judge should have passed an extended sentence in respect of the first of the magistrates' courts' offences of three years and four months with a custodial term of 16 months and an extension of two years, that for the assault occasioning actual bodily harm.

For the offence of affray the sentence should have been 12 months with an extension of two years. The custodial element so far as the affray sentence cannot be longer than 12 months, because it would then be longer than the maximum sentence for the offence, namely three years once the extension period of two years is passed. In the circumstances the sentences would then have been lawful and would have achieved the purpose which the judge required. Nevertheless, in accordance with our finding in relation to dangerousness, that matter does not arise.

For the reasons which we have endeavoured to explain, the appeal in Butterworth is allowed to the extent set out.