Sim v R.

Guidance on sentencing practice, including the appropriate length of an extended licence period, does not ordinarily have retrospective effect. It differs from an appellate decision which authoritatively construes statutory language and thereby determines or restricts a sentencing court’s powers.

An offender sentenced lawfully under the sentencing policy then prevailing cannot obtain a late reconsideration solely because subsequent guidelines suggest a different approach. The risk of similar reoffending, and a continued denial of the offences, may remain relevant to the assessment of an appropriate extension period.

The applicant was convicted at Snaresbrook Crown Court of two indecent assaults and one offence of gross indecency with a child. He received concurrent custodial terms of 30 months and a five-year extended licence period under Crime and Disorder Act 1998, section 58.

More than three years later, he sought an extension of time to apply for leave to appeal against sentence. He relied on later guidance in Nelson [2002] 1 Cr. App.R. (S.) 565 concerning the length of extended sentences. His application raised whether that guidance declared the law, so as to require retrospective application, or was instead non-retrospective sentencing policy and practice.

1. The court, in a judgment delivered by Pill LJ, refused the application for an extension of time. The merits of a challenge to the five-year extension period therefore did not arise for decision.

2. Offen [2001] 2 Cr.App.R.(S.) 44, and its application in Kelly (No. 2) [2002] 1 Cr.App.R.(S.) 360, concerned the construction of statutory language. That construction addressed Parliament’s purpose, the effect of the Human Rights Act 1998, and the sentencing court’s power to impose a life sentence. It was therefore capable of affecting an earlier sentence.

3. By contrast, Nelson gave advice on the approach and factors relevant to fixing the length of an extension period. It did not construe the statutory expressions “extended sentence” or “extension period”, alter the law, or impose a restriction on sentencing powers. It was guidance on current sentencing policy and practice.

4. Following Graham [1999] 2 Cr.App.R.(S.) 312 and Royal [2003] EWCA Crim.1152, subsequent guideline decisions do not retrospectively reopen a sentence which was lawful under the prevailing tariff and practice. The distinction remained so even though the guidance in Royal was more specific than that in the present case.

5. The court added that a five-year extension period would be unlikely in the current sentencing climate, but was not clearly manifestly excessive. The sentencing judge had been entitled to regard the assessed high risk of similar reoffending and the applicant’s continuing denial as significant.

• Court of Appeal (Criminal Division) Refused the applicant an extension of time, exceeding three years, within which to seek leave to appeal against sentence.
• Crown Court at Snaresbrook The applicant was convicted of two indecent assaults and gross indecency with a child. He received concurrent 30-month custodial terms and a five-year extended licence period under section 58 of the Crime and Disorder Act 1998.