Cunliffe, R. v

An extended sentence may be imposed only for an offence included in the statutory list of specified offences. A sentence imposed for an offence outside that list is unlawful and must be quashed.

Where an offender is below 21, the lawful custodial sentence is detention in a young offender institution rather than imprisonment. In sentencing a dangerous sexual offender for several offences, the court should assess the totality of the offending and generally impose concurrent sentences. A minimum term under an indeterminate sentence for public protection does not create a determinate sentence; release remains conditional upon it being safe for the public.

The appellant pleaded guilty at Preston Crown Court to a series of sexual offences, including attempted rape and sexual assault by penetration, and to taking a child without lawful authority and attempted child abduction. The judge imposed sentences of imprisonment for public protection for the sexual offences and extended sentences for the two abduction offences.

The Registrar referred the case to the full court under Criminal Appeal Act 1968 section 11 because the sentences required restructuring to make them lawful. The appellant also challenged the starting point selected for attempted rape. The central issues were whether the extended sentences were authorised, whether the custodial terminology was lawful for an offender under 21, and what minimum terms were appropriate after totality and credit for guilty pleas.

1. Appeal allowed in part. The court granted leave and corrected the unlawful sentencing structure under Criminal Appeal Act 1968 section 11.

2. The offences under the Child Abduction Act, including the attempt charged under the Criminal Attempts Act, were not specified offences in Schedule 15 of the 2003 Act. The judge therefore had no power to impose extended sentences for them. Those sentences were quashed and replaced with concurrent sentences of three years’ detention in a young offender institution.

3. As the appellant was under 21, sentences described as imprisonment were unlawful in form. The appropriate custodial disposal was detention in a young offender institution. The court nevertheless upheld the conclusion that indeterminate sentences for public protection were necessary. The serious specified sexual offences, the pattern of offending and the professional assessments established a grave continuing risk to females.

4. A substantial custodial sentence was required for the attempted rape, consistently with R v Billam. The court applied the totality approach stated in R v Lang and Others [2005] EWCA Crim 2864: where several offences are sentenced together, concurrent sentences are generally appropriate when an indeterminate sentence is imposed for the specified offences. Having assessed the aggravation in the attempted rape and the other offences as a whole, the court selected 18 years before credit. Timely guilty pleas reduced that figure by one third to 12 years, and the minimum term was then fixed at six years under Powers of Criminal Courts (Sentencing) Act 2000 section 82A.

5. The court set corresponding minimum terms for the remaining public-protection sentences, subject to deduction of 254 days already served. The sentence remained indeterminate. The appellant would remain detained until the statutory release body was satisfied that release was safe; the ancillary notification and child-work disqualification orders remained in force.

• Court of Appeal (Criminal Division): Granted leave to appeal and allowed the appeal to the extent necessary to correct unlawful sentences, replace the extended sentences, and set revised minimum terms.

• Preston Crown Court: On 30 August 2005, following guilty pleas, imposed sentences of imprisonment for public protection for the sexual offences and extended sentences for the abduction offences.