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An extended licence period under Powers of Criminal Courts (Sentencing) Act 2000 section 85 is a protective measure. Its length is directed to preventing further offending and securing rehabilitation, rather than reflecting the gravity of the offence.

Strict proportionality is not the primary consideration. However, the court must take account of the overall sentence, including the custodial term and the ordinary licence period which will follow release. A sentence is not reduced merely because it is marginally too long; appellate intervention requires it to be manifestly excessive. There is no inherent sentencing distinction between anal and vaginal rape, although the circumstances of the particular offence may aggravate sentence.

The appellant was convicted at Bradford Crown Court of five indecent assaults on his two young nieces and one count of anal rape of one niece. The offences involved persistent sexual abuse within a family setting and a serious abuse of trust.

The sentencing judge imposed consecutive custodial sentences totalling 13 years and, for the rape count, a six-year extension period of supervision under Powers of Criminal Courts (Sentencing) Act 2000 section 85. The resulting extended sentence was expressed as 19 years.

On his appeal against sentence, the appellant challenged the length of the rape sentence and total custodial term, and principally the justification and length of the extended licence period. The central issue was whether six additional years of supervision were appropriate despite the substantial custodial term and the ordinary licence period which would follow it.

1. Appeal allowed in part. The court upheld the nine-year sentence for anal rape and the total custodial term of 13 years. It set aside the six-year extension period of supervision.

2. There is no inherent distinction, for sentencing purposes, between anal and vaginal rape: see Millberry [2002] EWCA 2891 and Persico [2004] 1 Cr App R(S) 142. The judge’s observation that anal rape was worse for this child did not produce an excessive sentence. The eight-year starting point was proper because of the abuse of trust, and the appellant’s earlier sexual assaults on the same child aggravated the rape offence.

3. A sentence is not reduced because it is only marginally too long. The appellate test is whether it is manifestly excessive. The custodial period therefore stood.

4. The principles in Nelson [2002] 1 Cr App R(S) 134 governed the extension. An extended licence period protects the public and assists rehabilitation; it does not measure offence seriousness. Strict proportionality is not its primary determinant, but proportionality retains some relevance and the implications of the total sentence must be considered.

5. The appellant posed a risk principally to children within his family, not to the general public. He would serve a lengthy custodial term and would in any event be subject to about four years’ ordinary licence on release. In those circumstances, a further six years’ supervision was inappropriate. The sentence on the rape count became nine years’ imprisonment, consecutive to four years for another count, leaving 13 years’ imprisonment in total.

• Court of Appeal (Criminal Division): In [2005] EWCA Crim 76, allowed the appeal against sentence in part by setting aside the six-year extension period of supervision, while leaving the 13-year custodial term undisturbed.
• Crown Court at Bradford: On 1 April 2004, convicted the appellant of five indecent assaults and anal rape. On 19 July 2004, imposed consecutive custodial sentences totalling 13 years and an extended sentence under Powers of Criminal Courts (Sentencing) Act 2000 section 85.