C & Ors, R v

These cases have been listed together so that this court can consider, once again, practical difficulties presented to judges considering imposing extended sentences under both the Criminal Justice Act 2003, and its predecessor regime introduced by section 58 of the Crime & Disorder Act 1998 and ultimately set out in section 86 of the Criminal Powers of Courts (Sentencing) Act 2000. The latter provisions remain operative in relation to offences committed after the 29^th September 1998 and before the 4^th April 2005. They remain relevant because of the significant number of historic sexual offences which come before the courts. These provisions were in turn the successors to section 44 of the Criminal Justice Act 1991 which provided a very limited power to extend the licence period in sexual cases to the end of the nominal sentence.

The provisions of the 1998 and the 2000 Acts simply grafted on to the ordinary operation of release and licence provisions a power in relation to sexual and violent offences to extend the licence period beyond the end of the nominal sentence period. Sections 227 and 228 of the 2003 Act, however create a new form of extended sentence with different criteria relating, in particular, to the date of release from custody.

The particular problems which these cases exemplify relate to the power of the court to order consecutive sentences, either consecutive extended sentences, or a mix of extended and ordinary determinate sentences. This court has commented on numerous occasions in the past on the extraordinary complexity of the provisions in question. As a result it has consistently advised sentencing courts that in relation to offences committed before April 2005, it is not good practice to impose consecutive extended sentences (R –v- Nelson [200] 1 Cr App R(S) 565[2001] EWCA Crim 2264) or consecutive sentences including an extended sentence (See R –v- Cridge [2000] 2Cr App(R) 477 and R –v- Pepper [2005] EWCA Crim 1181)

In R –v- Lang [2006] 1WLR 2509, [2005] EWCA Crim 2864) at paragraph 20, the Vice President suggested that the same principle should be applied to extended sentences imposed under the 2003 Act. This has been echoed in R –v- Alam and Watson [2006] EWCA Crim 1680. And in R –v- O’Brien et al [2006] EWCA Crim 1741, Hooper LJ cited Lang as some support for the court’s conclusion in that case that consecutive indeterminate sentences should not be imposed, nor should indeterminate sentences be made consecutive to a determinate sentence, or an extended sentence.

However, in R –v- Brown and Butterworth [2006] EWCA Crim 1996, this court, presided over by Gage LJ, gave more detailed consideration to the problem. Before setting out the court’s conclusions, we should say something further about the differences between extended sentences under the 1998 and 2000 Acts, and extended sentences under the 2003 Act.

We have already given a general description of the two forms of extended sentence. But the important point is that extended sentences under the 2003 Act are clearly intended to be a new species of sentence. Sections 227 and 228 of the 2003 Act make it plain that the sentence is a single sentence of imprisonment comprising the aggregate of the custodial term, and the extension period: see section 227(2) and section 228 (2). The custodial term, pursuant to section 227(3) is the term of imprisonment appropriate for the offence determined in accordance with the provisions of section 153 of the 2003 Act, namely the shortest term that in the opinion of the court is commensurate with the seriousness of the offence or the combination of the offence and one or more offences associated with it. In other words, it is the appropriate determinate sentence if the court had not been required by sections 227 or 228 to impose an extended sentence.

The provisions for release on licence of a prisoner serving an extended sentence under sections 227 or 228 are quite different from the provisions for release of prisoners serving determinate sentences or extended sentences under the 1998 and 2000 Acts, and are contained in section 247 of the 2003 Act. By sub-sections (2) and (4), the Secretary of State must release the prisoner if he has served one half of the appropriate custodial period and the Parole Board has directed his release on the grounds under sub-section (3) that it is no longer necessary for the protection of the public that he should be confined; alternatively, the prisoner must be released if he has served the whole of the appropriate custodial period. It follows that the period which the prisoner serving an extended sentence imposed under the 2003 Act will spend in custody will depend on whether and when the Parole Board has directed his release.

In this context it is also important to bear in mind the provisions of section 264 of the 2003 Act, which deal with the treatment of consecutive sentences where such sentences are imposed on the same occasion. Sub-section (2) provides that the period before which the Secretary of State is not required to release a prisoner is the aggregate of the length of custodial periods ordered to be served consecutively; by sub-section (6)(a)(i) this means the appropriate custodial term in relation to an extended sentence under section 227 or 228 and one half, in most cases, of the term in determinate sentences. Further, by sub-section (3) the licence period is the period after release until the time at which he would have served a term equal in length to the aggregate length of the terms of imprisonment but for his release. As far as extended sentences are concerned, as we have said above, the important point is that the length of the sentence of imprisonment (as opposed to the “custodial term”) is the combined period of the custodial term and the extended licence period.

Returning to Brown & Butterworth, the court concluded as follows:

“23.

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.

24.

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 and 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 will be inconsistent with the clear terms of section 247(2)....

.......

26.

At the outset we feel it may be helpful to make some short points of general application. First we conclude that the court has the 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.

27.

However, when the release provisions of section 247 are factored in difficulties may well arise in respect of the calculation of dates for release and the start of the period 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 sentences.

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. 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 combination of sentences since it would defeat the purpose of the mandatory extended sentence.

29.

Finally nothing that we have said is in anyway intended to dilute the guidance given by the court in Lang, and R –v-S [2005] EWCA Crim 3616. We observe that as these 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.”

The cases before us provide an the opportunity to pull together the threads of the statutory provisions and these authorities, in particular Brown and Butterworth, with the considerable assistance of Mr Kovats on behalf of the Home Office, and indeed all counsel who have appeared before us. It seems to us that, in the first instance, we should not disturb the consistent advice that has been given in relation to the provisions of the 1998 and 2000 Acts, as exemplified in particular in Nelson and Pepper. Where these provisions apply a court should not, as a matter of good practice, and save in exceptional circumstances, impose consecutive extended sentences, or consecutive sentences of any other nature with an extended sentence. But there is nothing unlawful in doing so: and in some cases it may be necessary. We are satisfied by the material provided by Mr Kovats that such consecutive sentences under the 1998 and 2000 Acts do not, in themselves, impose insuperable difficulties to those seeking to administer them. Where there are consecutive extended sentences, under the 1998 and 2000 Acts, the practice is as follows:

But the advent of the 2003 Act, however, presents a number of problems. As we have pointed out, and as has been pointed out in paragraph 23 of Brown & Butterworth, the release provisions relating to prisoners serving determinate and extended sentences are different. As far as the latter are concerned, release after one half of the custodial term is not automatic, but dependent upon a direction from the Parole Board. Where there are concurrent sentences, there is no difficulty. Release will have to await the direction from the Parole Board, or the serving of the custodial term, whichever is the earliest of those events. If an extended sentence is ordered to be served consecutively to a determinate sentence, the logical solution would be that the prisoner would be released when he has served one half of the determinate term, and then such part of the custodial term of the extended sentence as is required by section 247(2) and (4). The prisoner is then on licence until the end of the custodial term (if released early) plus one half of the determinate sentence plus the extension period. As we understand it, this is the practice adopted by the Secretary of State, and would accord with the logic of the extended sentence provisions.

But, as was noted in argument in Brown and Butterworth, this sensible and logical approach would appear to be in conflict with the provisions of section 264(2) of the 2003 Act which provides:

“Nothing in this Chapter (which includes section 247(2)) requires the Secretary of State to release the offender on licence until he has served a period equal in length to the aggregate of the length of the custodial periods in relation to each of the terms of imprisonment.”

As we have already said, “custodial period” in the case of an extended sentence is the “custodial term”, not the period spent in custody. Prima facie therefore, this sub-section exempts the Secretary of State from releasing a prisoner sentenced to an extended sentence consecutive to a determinate sentence until the completion of the whole of the custodial term (i.e. one half of the determinate sentence plus the custodial term of the extended sentence)..

In paragraph 24 of Brown & Butterworth, the court considered that that would be inconsistent with the express provisions of section 247(2). But because the aggregation provisions in this sub-section are expressed so as to exempt the Secretary of State from the requirement to release earlier, we are not sure that the concern expressed by counsel in that case can be lightly dismissed. Mr Kovats, on behalf of the Secretary of State, has, however, expressly confirmed that effect will be given to section 247(2) by the Secretary of State whatever the strict wording of section 264(2). We would therefore expect that, in practice, the sensible and logical method of dealing with consecutive determinate and extended sentences will be followed. As section 264(2) is expressed in discretionary terms, the Secretary of State would have to justify any departure from that practice.

We would expect that the same principle will be adopted in the case of consecutive extended sentences. Again the logical approach would be to aggregate the two custodial terms and permit early release, on the direction of the Parole Board, after one half of the custodial term has been served. The period of licence as a result of the provisions of section 261(3) will be such period as expires at the end of the aggregate of the terms of imprisonment, that is the aggregate of the custodial terms and the aggregate of the extended terms. Once again we understand from Mr Kovats that that is the way that the provisions are operated in practice. This would appear to be wholly in accordance with the logic and policy of the statutory provisions, even though, once again, section 264(2), if strictly applied, would appear to permit the Secretary of State to debar release until after the whole of the aggregated custody period have been served..

More difficult questions, however, arise if a determinate sentence is expressed to be consecutive to an extended sentence. The custodial term of the extended sentence would again, strictly, have to be served first, before the custodial period of the determinate sentence. The consequence would be that commencement of the determinate sentence would have to await the decision of the Parole Board to direct release under section 247(2), although there will be no question of the prisoner’s release until he has served the custodial period of the determinate sentence. Mr Kovats did not shrink from suggesting that that was the position. The consequence would be to require any prisoner subject to an extended sentence who wished to obtain early release from custody to make his application at a time when he might not, instinctively, consider it appropriate i.e. during the first part of the period spent in custody. In our view the only proper approach would be to treat, in this respect, the custodial period in the same way whichever sentence is expressed to be consecutive to the other i.e. to treat the final part of the period in custody as the custodial term of the extended sentence. That would be consistent with the concept of aggregation, and can be achieved by the exercise of the Secretary of State’s discretion. There should be no difficulty. It equates the approach in both scenarios, and meets the statutory objective. If the Parole Board is asked to consider directing release after the prisoner has served one half of the determinate sentence, plus one half of the custodial term of the extended sentence he is more likely to meet the criteria for early release. The Secretary of State would, therefore, once again, have to justify any exercise of discretion which departed from that practice.

But the fact that these practical solutions are not mandated by the 2003 Act underlines why consecutive sentences under the 2003 Act should be approached with great caution. Nonetheless, as we have said, they can be valuable tools in the sentencer’s armoury. One particular example is where a defendant is charged with repeated affrays. In such a case, even though an extended sentence may be mandated, the sentencer has to work within the confines of a maximum sentence of three years imprisonment. In such circumstances, consecutive sentences may be the only way to impose an appropriate custodial punishment and provide for a realistic extended period on licence.

Having explained how the sentences can be made to work, and explained the pitfalls, we would not expect this court to interfere with consecutive sentence orders unless the appellant can establish that an insuperable difficulty exists in giving effect to such an order in his case.

In summary, our conclusions as to the practice to be adopted in dealing with consecutive and concurrent sentences in this complex area of sentencing are as follows:

We then turn to the individual cases:

On the 17^th January 2005 in the Crown Court at Bournemouth, the appellant pleaded guilty to four offences of indecent assault, three offences of indecency with a child and one offence of taking an indecent photograph of a child. On the 10^th March 2005 at the same court, he pleaded guilty to 16 counts of making an indecent photograph of a child. On the 19^th April 2005, he was sentenced to an extended sentence of eight years under the 2000 Act, comprising a four year custodial term and an extension period of four years, for all the offences to which he pleaded guilty on the 17^th January 2005. For eleven of the offences to which he pleaded guilty on the 10^th March 2005 he was sentenced to two years imprisonment concurrent with each other but to be served consecutively to the extended sentence, for four of those offences he was sentenced to 12 months to be served concurrent with the two years determinate sentence; and for the last of those offences; he was sentenced to six months imprisonment again to be served concurrently both with the sentence of 12 months imprisonment and the sentence of 2 years imprisonment.

Five hundred and ninety-six other offences of making indecent images of a child were taken into consideration.

His application for an extension of time of one year four months in which to apply for leave to appeal against sentence and the application for leave to appeal against sentence have been referred to the full court by the Registrar. We grant the extension of time and we give leave to appeal. We do so because there are a number of problems arising out of the sentences imposed in this case. But before we turn to those, we should set out, shortly, the facts.

On the 6^th August 2004 as a result of information that the appellant’s credit card had been used to access child pornography on the internet, a search warrant was executed on the appellant’s home and items including a camcorder and a tape was seized. The tape showed the appellant’s natural daughter then 7 to 8 years old wearing make-up and pair of adult sized cami knickers sitting on a sofa rubbing her genital area first over the material and then apparently under the material; the camera focused on the genital area. The child then left the room and returned wearing an adult black slip. She once again rubbed her genital area over the material, got up and approached the applicant and took hold of his erect penis and masturbated him for several second. She left the room and returned, once again rubbing her genital area. The appellant was then heard to say “Do you want to suck it for the camera. Do you want to suck it and put it in your mouth to the camera.” The child then walked towards the appellant and is seen putting her head towards his groin area and after a few seconds raising her head. The appellant then said “Sophia, Sophia do that again”. She walked back towards him took hold of his erect penis and again appeared to lean forward bringing her head close to his groin.

As a result, the appellant’s daughter was interviewed. She said that between the ages of 6 and 11 the appellant would regularly rub his penis against her stomach or vagina and ejaculate. The indictment charged one specimen count for each year. A further count related to an occasion when the appellant required her to masturbate him when she was six years old.

As far as the offences in the second indictment were concerned, one of the images was at grade 5, ten at grade 4, 4 at grade 3 and 1 at grade 1. Including the other offences to be taken into consideration there were 38 images at grades 4 and 5.

The appellant does not seek to appeal against the sentences imposed on the offences to which he pleaded guilty on the 17^th January 2005. There are, however, two substantial problems in relation to the sentences for those offences. First, although the transcript of the Judge’s sentencing remarks makes it quite plain that the sentences were as we have set them out above, the Crown Court for some reason has recorded the sentences as “an extended sentence of eight years comprising a custodial term of four years and an extension period of eight years”. Quite apart from the fact that that did not reflect the judges order, the total would appear to indicate a sentence of 12 years which exceeds the maximum of 10 years for indecent assault and indecency with a child at the time. Further, the sentence that was imposed by the judge for taking an indecent photograph of a child, that is the extended sentence of eight years, exceeds the maximum sentence for that offence at the time, which was 3 years imprisonment. There is in our view nothing wrong with the total extended sentence of eight years as stated by the judge. But the appeal must be allowed so as to amend the record to show that the sentence was an extended sentence of eight years, comprising a four year custodial term and an extension period of four years for all the offences save Court 6, taking indecent photographs of a child, for which there will be a sentence of 18 months imprisonment concurrent to the extended sentence. There is one further technicality, namely that two of the counts referred to the child’s age as under 16 years, whereas at the time the relevant age was 14 years. As the child was undoubtedly younger than fourteen years in any event, we do not propose to interfere with the sentence imposed on those counts.

However, it is submitted on behalf of the appellant, that as far as the sentences for making indecent photographs of a child to which he pleaded guilty on the 10^th March 2005 are concerned, the consecutive sentences were wrong in principle relying on Nelson and Pepper. Further, and in any event, it is submitted that the number of images at levels 4 and 5 do not justify a sentence of two years imprisonment in the light of the guidance of this court in the case of Oliver. With the latter submission we agree. The appropriate total sentence for the offences in the indictment to which he pleaded guilty on the 10^th March 2005 should be 12 months imprisonment. The sentences for the eleven counts to which he was sentenced to two years imprisonment will therefore be 12 months imprisonment. As to the four counts to which we was sentenced to 12 months imprisonment, that should be reduced to 9 months imprisonment, that again to be concurrent. We do not propose to interfere with the sentence of six months imprisonment imposed on the final count on that indictment.

As far as those sentences are concerned, for the reasons that we have given, we consider that there is no reason in principle why a consecutive sentence should not have been imposed; and we accordingly allow the appeal only to the extent we have indicated.

On the 17^th February 2006 at the Crown Court in Manchester, the applicant pleaded guilty to two counts of affray, and one count of perverting the course of justice. On the 11^th May 2006 he was sentenced as follows. As to the first offence of affray an extended sentence of 32 months pursuant to s. 227 of the 2003 Act made up of a custodial term of 20 months imprisonment and an extension period of 12 months: for perverting the course of justice he was sentenced to three months imprisonment concurrent: for the second offence of affray, he was sentenced to an extended sentence of 25 months pursuant to section 227 of the 2003 Act made up of a custodial term of 13 months and an extension period of 12 months to be served consecutively to the extended sentence imposed in relation to the first offence of for affray. The total sentence was an extended sentence of 57 months made up of a custodial term of 33 months and an extension period of two years. The judge further directed that 182 days spent on remand would account towards his sentence pursuant to section 240 of the 2003 Act.

His application to appeal against sentence was referred to the full court by the Registrar.

Both offences of affray involved disputes between him and Vicky McKenzie , with whom he was living. The first occurred in the early morning of the 30^th May 2005 when the police attended at Vicky McKenzie’s address. She was upset and one of her legs was bleeding. At first the appellant was abusive and refused to go outside to speak to the officers. He appeared then to change his mind; but as he bent down to put on one of his shoes, an officer saw that he had a kitchen knife in his pocket. The officer shouted at him to put the knife on the floor; but instead, the appellant pulled it out raised it above his head and shouted “Go on then fucking kill me I am ready”. He then ran at the officer shouting “Fucking come on then, lets go”. The officer fled from the house chased by the appellant who was brandishing the knife above his head. The appellant chased the officer to the police vehicle in which the complainant was sitting. The police officers drove off with the complainant. Other officers then arrived at the scene, but could find neither the appellant nor the knife. At the time the appellant was on bail for an earlier incident involving Vicky McKenzie in relation to which he was never charged.

Following that incident, the appellant and the complainant became reconciled the next day and arranged to stay the night together at a hotel. The police were called because there was a complaint of a disturbance in their hotel bedroom. When the police arrived, they could not gain access because the appellant had placed a chain on the bedroom door. He shouted that he had a hostage. So the police forced the door. Vicky McKenzie was sitting in a chair with the appellant behind her, holding a small black handled kitchen knife. The officer shouted to him to put the knife down. After two requests he agreed and held the knife in front of him; and it was then taken from him without difficulty.

At the time of his arrest he was found to be in possession of a bag of amphetamine. During his interview the drugs were placed on the table. The appellant grabbed the bag and swallowed some of the contents. This formed the subject matter of the count of perverting the course of justice.

As far as the affray at the hotel was concerned, the following written basis of plea was accepted by the prosecution:

The appellant now 40 years of age had 23 previous court appearances. There were seven court appearance for offences against the person including four offences of assault occasioning actual bodily harm, and ten previous court appearances for public order offences, including six offences of affray. He had five previous court appearances for threatening behaviour and four previous court appearances for criminal damage. In 1992 he received a total sentence of 11 years and 6 months imprisonment in Greece for offences of theft, kidnapping, escape, possession of offensive weapons and prison mutiny. He was extradited from the United Kingdom to Greece having escaped from custody in Greece. The sentencing judge considered that the appellant met the criteria of dangerousness in section 229 of the 2003 Act. There is no appeal against that finding. What is said, however, on his behalf is that the judge erred in principle in imposing consecutive extended sentences, and that the total sentence was in any event manifestly excessive bearing in mind the basis of plea which the prosecution had accepted.

As we have already said, we do not consider that consecutive extend sentences are wrong in principle; and for repeat offences of affray they may well be appropriate. But in the present case, the basis of plea did not, in our view, justify a consecutive extended sentence of the length imposed by the judge in this case. In our view, this offending behaviour merited in total of extended sentence of three years. Because of the restriction on the length of the custodial term which has to be imposed in an extended sentence, we think that the right way of expressing the sentence is to impose an extended sentence of 36 months pursuant to section 227 of the 2003 Act made up of a custodial term of 24 months imprisonment and an extension period of 12 months for the first affray, that is Count 3 in the indictment. As far as the sentence for perverting the course of justice is concerned the sentence will remain the same. As far as the second affray is concerned, that is Count 8 in the Indictment, the sentence will remain the same, but will be served concurrently with the extended sentence imposed in respect of Count 3. To that extent the appeal is allowed.

On the 27^th February 2006 at the Crown Court in Chelmsford the appellant pleaded guilty to an offence of inflicting grievous bodily harm. On the 16^th June 2006 at the Crown Court at Basildon he pleaded guilty to an offence of unlawful wounding. On the 8^th August at the Crown Court at Chelmsford HHJ Hayward-Smith QC sentenced him to an extended sentence of 30 months detention pursuant to section 228 of the 2003 Act made up of a custodial term of 12 months detention and an extension period of 18 months for the offence of inflicting grievous bodily harm, and an extended sentence of 36 months pursuant to the same section made up of a custodial term of 18 months detention and an extension period of 18 months detention, to be served consecutively, for the unlawful wounding. The total sentence was an extended sentence of 66 months detention made up of a custodial term of 30 months detention and a extension period of 36 months.

He appeals against sentence by leave of the single judge.

As far as the first offence was concerned, this occurred on the 16^th June 2005. The 48 year old complainant was going home by train, when he was viciously assaulted by the appellant and another young man, for no apparent reason. The appellant punched him once to the face causing a fractured cheek bone and a black eye. The victim fell to the floor where there was further scuffling. The appellant was arrested on the 28^th June 2005. When interviewed, he declined to comment. On the 27^th August 2005, the second complainant Mr Bardo was walking home when he was confronted by the appellant and two others. The appellant for no reason punched him on the face several times. Mr Bardo fell to the ground where he was further punched by the appellant. He sustained several lacerations to his face and a broken lateral incisor tooth. The police came to the scene and found the appellant hiding in a bush. Once again he declined to make any comment in interview.

At the time the appellant was 18 years of age. He had, apart from one offence of threatening behaviour, no serious history of violence. However the pre-sentence report, which dealt only with the first offence, indicated that there was a high risk of the appellant re-offending. The judge came to the conclusion that, bearing in mind the nature of the two offences, and the fact that the second offence was committed whilst he was on bail for the first offence, there was a significant risk of his causing serious harm in the future. It was in those circumstances that he imposed the extended sentences.

It is submitted on his behalf that the judge erred in principle in imposing consecutive extended sentences. For the reasons that we have give, we reject that submission. More fundamentally counsel on his behalf has urged us to take the view that the criteria of dangerousness have not been met, on the basis that these two offences do not sufficiently establish a pattern of violence which could justify such a finding. We have considered the submission with care bearing in mind the appellant’s age, but, in our view, the judge was fully entitled to come to the conclusion that he did. This appeal is dismissed,

On the 27^th June 2006 at the Crown Court in Lincoln, the appellant was convicted of five counts of sexual assault on a child under thirteen and one count of inciting a child to engage in sexual activity. On the 7^th August 2006 he pleaded guilty to failing to surrender to bail.

On the 17^th August 2006 he was sentenced to two years imprisonment concurrent in relation to the five counts of sexual assault on a child under thirteen and an extended sentence of five and a half years under the 2000 Act made up of a custodial term of two and a half years and an extension period of three years concurrent to the determinate sentence of two years imprisonment. He was then sentenced to six months imprisonment concurrent for the Bail Act offence. Consequential orders were made under the Sexual Offences Act 2003. He appeals against sentence by certificate of the trial judge in the following terms:

“Certified Point. What is the appropriate course to follow where D has committed a Bail Act offence for which the sentence ought to be consecutive but where an Extended Sentence is being imposed under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 for the main offence. And in the light of Pepper, Newton and Collins an extended sentence ought not to be imposed consecutively to a determinate sentence or vice versa?

Note A similar problem will arise if an Extended Sentence is being imposed under CJA 2003”

The only point in the present case is that the judge, in order to avoid what he considered to be the prohibition on imposing a consecutive sentence for the bail offence, expressly increased the custodial term of the extended sentence by six months to reflect what he considered to be the appropriate sentence of imprisonment for the Bail Act offence. The single point is whether, in doing so, he erred in principle. In our view he did. For the reasons we have given, he was not precluded from imposing a consecutive sentence for the Bail Act offence. Whilst, in practical terms, this may make no difference where an extended sentence is imposed under the 2000 Act, nonetheless his record will show a custodial term for the sexual offence which is six months longer than the judge thought appropriate. And under the 2003 Act, if it had applied, a defendant would be significantly disadvantaged. The custodial term of his ordinary determinate sentence would be only three months. But if added to the custodial term of the extended sentence could be longer, depending upon if and when the Parole Board directed release.

The overall sentence in this case, however, was unimpeachable. In our judgment the right order is to allow the appeal, to the extent that the extended sentence will be one of five years made up of a custodial term of two years and an extension period of three years to be served concurrently to the two years imprisonment for the earlier offences. The six months imprisonment imposed for the Bail Act offence should be served consecutively to those other sentences. For the reasons that we have given this will not result in the appellant serving any greater sentence than that which has been imposed in the Crown Court.

On the 1^st March 2006 in the Crown Court at St Albans, the applicant pleaded guilty on re-arraignment to a single count of sexual assault contrary to section 3 of the Sexual Offences Act 2003. On the 10^th March 2006 having pleaded guilty before the Magistrate’s Court, the applicant was committed for sentence in respect of two offences of driving with excess alcohol. On the 21^st April 2006 in the Crown Court at St Albans he pleaded guilty on re-arraignment to a count in a further indictment of dangerous driving, and to offences of driving with excess alcohol, no insurance, no certificate and failing to stop. He was committed to the Crown Court under section 41 of the Criminal Justice Act 1988.

The applicant was sentenced to an extended sentence of 6 years and 3 months imprisonment under the 2000 Act made up of a custodial term of 15 months and an extension period of five years. For the offences of driving with excess alcohol which were committed for sentence on the 4^th March 2006 he was sentenced in relation to the first, to two months imprisonment to be served consecutively to the extended sentence, and for the second, to three months imprisonment to be served consecutively to the extended sentence and consecutively to the first offence of driving with excess alcohol, and for the offence of dangerous driving he was sentenced to 7 months imprisonment to be served consecutively to all the previous sentences; and for the offence of driving with excess alcohol which had been committed under section 41 of the Criminal Justice Act he was sentenced to 4 months imprisonment, but that was to be served concurrently. The judge further activated a suspended sentence of 15 months imprisonment which had been imposed on the 27^th January 2005 for offences of possessing air-weapon ammunition and ordered it to be served consecutively to all the previous offences. He was further ordered to be returned to custody to serve the whole remaining period 139 days in respect of his sentence of imprisonment, the licence period for which had not expired when he committed the offences. The consequence was expressed as an extended sentence of 8 and a half years imprisonment comprising a total custodial term of 3 and a half years and an extension period of 5 years.

The applicant was not present or represented at the hearing before us. We consider that the sentences in this case require separate consideration. We accordingly give leave to appeal and grant a representation order for counsel. We further direct that the respondent be represented at the hearing of the appeal, and should be in a position to inform the court as to the way in which the prison service has interpreted the court’s order in this case.