Brown, R. v

An extended sentence requires a finding of a significant risk that further specified offending will cause serious harm. A general risk of reoffending, or a risk to the public expressed without the statutory serious-harm qualification, is insufficient.

Under section 227 of the Criminal Justice Act 2003, the sentence must comprise one custodial term and one extension period. Sentence structures should also preserve the statutory release and licence scheme. Consecutive extended sentences, and a determinate sentence consecutive to an extended sentence, should generally be avoided. An extended sentence may, where necessary, be consecutive to a determinate sentence. A longer concurrent determinate sentence may undermine the purpose of the mandatory extension.

Two sentencing appeals were heard together because both concerned extended sentences under section 227 of the Criminal Justice Act 2003.

Brown had pleaded guilty at Preston Crown Court to affray, witness intimidation and breaches of an ASBO. He received an extended sentence for affray. A consecutive sentence for witness intimidation was later varied to a longer concurrent determinate sentence after reference to R v Lang and Others [2005] EWCA Crim 2864. His appeal concerned dangerousness and the proper structure of the sentences.

Butterworth had pleaded guilty to attempted robbery, theft, assault occasioning actual bodily harm and affray. The sentencing judge imposed consecutive custodial sentences and purported to attach extension periods to the assault and affray sentences. His case raised both the serious-harm limb of dangerousness and the legality of that sentence structure.

1. Both appeals were allowed. In Brown’s case, the judge had correctly applied the section 229 dangerousness test. Brown’s history of weapons and violence, together with the offences, entitled the judge to conclude that the statutory assumption of a significant risk of serious harm was not displaced.

2. The court held that the varied structure of Brown’s sentence was not unlawful, but the four-and-a-half-year concurrent sentence for witness intimidation was much longer than the custodial element of the extended sentence and conflicted with the general guidance in R v Lang and Others [2005] EWCA Crim 2864. The proper structure was an 18-month determinate sentence for intimidation followed by the 36-month extended sentence for affray, comprising 22 months’ custody and a 14-month extension.

3. The court stated that consecutive extended sentences, and determinate sentences consecutive to extended sentences, create substantial difficulties in calculating release and licence periods under sections 247 and 264 of the Criminal Justice Act 2003. They should generally be avoided. An extended sentence consecutive to a determinate sentence does not create the same problem. A concurrent determinate sentence longer than the extended sentence’s custodial term may subsume the extension and should, where possible, also be avoided.

4. Butterworth’s past and present offending established a significant risk of further offending, but not a significant risk of serious harm. The extended sentences were therefore quashed. The consecutive custodial terms were left unaltered.

5. Although unnecessary to Butterworth’s outcome, the court also held that the purported extended sentences were unlawful. An extended sentence requires a custodial term of at least 12 months and a discrete extension attached to that sentence; an extension cannot be added to two separate custodial terms.

• Court of Appeal (Criminal Division) In [2006] EWCA Crim 1996, the court allowed Brown’s appeal and restructured his sentence. It granted Butterworth an extension of time and leave to appeal, allowed his appeal, quashed the extended sentences and left the custodial terms in place.
• Preston Crown Court Brown was sentenced on 29 November 2005, with a variation on 7 December 2005. Butterworth was sentenced on 6 July 2005 for indictment offences and offences committed for sentence from the magistrates’ court.
• Hyndburn Magistrates’ Court Butterworth had pleaded guilty to assault occasioning actual bodily harm and affray, and was committed to the Crown Court for sentence.