Lay, R v

Although consecutive sentences involving an extended sentence under section 85 are not unlawful, their order may create release and licence-calculation difficulties. Under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000, consecutive extended sentences and an extended sentence followed by a determinate sentence should normally be avoided. A determinate sentence may properly be served first and followed by a consecutive extended sentence, provided that the overall sentence satisfies totality. The sentencing record must make that order clear. Concurrent extended sentences are lawful but will usually be unnecessary.

The appellant pleaded guilty to sexual offences against a child and to making indecent images of children. The trial judge imposed concurrent sentences of up to four years on one indictment and concurrent sentences of two years on a second indictment, ordered consecutively, with a five-year extension of licence.

On an earlier appeal, the Court of Appeal upheld the overall custodial and extension periods and corrected the sentence by specifying two extended sentences under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000. On a reference by the Criminal Cases Review Commission, the court considered whether the order of the determinate and extended sentences should be altered.

1. Appeal allowed to the limited extent of varying the order of sentence. The court preserved the overall custodial term and the five-year licence extension, which it had already held to satisfy totality.
2. Although consecutive extended sentences under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 are not unlawful, they may cause practical difficulty in identifying release and licence periods. Consecutive extended sentences should therefore be avoided. Concurrent extended sentences are possible, but usually unnecessary.
3. The court adopted by analogy the approach in R v Brown and Butterworth [2006] EWCA Crim 1996. A determinate sentence ordered after an extended sentence should be avoided. By contrast, a determinate sentence served first and followed by a consecutive section 85 extended sentence is proper if the resulting sentence is justified by totality. The record must expressly state that the extended sentence is served second.
4. The two-year determinate sentences on the second indictment were therefore ordered to be served first. The concurrent sentences on the first indictment, including the two nine-year section 85 extended sentences comprising four years’ custody and five years’ extension, were to be served afterwards and consecutively. The court also indicated, without deciding the point, that the same ordering principles appeared apt to apply to section 86 sentences under the 2000 Act.

• Court of Appeal (Criminal Division): On a Criminal Cases Review Commission reference, the court allowed the appeal to vary the sequence of the determinate and extended sentences: [2006] EWCA Crim 2924.
• Court of Appeal (Criminal Division): On an earlier appeal on 4 September 2003, the court upheld the overall custodial and extension periods and specified the offences carrying the extended sentences. The citation was not stated in the judgment.
• Trial court: Imposed concurrent sentences on each of two indictments, ordered the second-indictment sentences consecutively, and extended the licence period by five years.