Fisher, R. v

An extended sentence under section 227(2) of the Criminal Justice Act 2003 may be imposed only if either the offender has the required previous conviction in Schedule 15A or the appropriate custodial term would be at least four years. Where neither condition is met, the extension period is unlawful and must be removed.

In assessing seriousness, relevant previous convictions must be treated as aggravating where it is reasonable to do so, having regard to their nature, relevance and age. Substantial weight may properly be given to a pattern of similar violence when deciding whether a custodial sentence is manifestly excessive.

The appellant pleaded guilty at Ipswich Crown Court to assault occasioning actual bodily harm after punching his former partner, causing facial and dental injuries. He had a record including previous violence, some of it in domestic circumstances.

On 12 March 2009, the sentencing judge imposed an extended sentence of four years, comprising two years’ custody and a two-year extension period. The appellant appealed against sentence. The single judge granted leave on the legality of the extended sentence; counsel also renewed an application to challenge the length of the custodial term.

The central issues were whether the statutory conditions for an extended sentence were met and whether the two-year custodial term gave excessive weight to the appellant’s previous convictions.

1. Appeal allowed in part. The extended sentence was unlawful. Under section 227(2) of the Criminal Justice Act 2003, an extended sentence could be imposed only if either the appellant had a previous conviction for an offence specified in Schedule 15A, or the appropriate custodial term would have been at least four years.

2. Neither condition was met. The appellant had no Schedule 15A conviction and the sentencing judge plainly did not regard four years’ custody as appropriate. The court therefore had no option but to allow the appeal so far as the two-year extension period was concerned. A standard determinate sentence was the only available custodial sentence.

3. The court rejected the renewed challenge to the two-year custodial term. Section 143(2) required relevant previous convictions reasonably to be treated as aggravating, with particular regard to the nature and relevance of the earlier offending and the time elapsed. The appellant’s record showed a pattern of violence, including violence against a previous partner in similar circumstances. The sentencing judge was entitled to give that record considerable weight.

4. The attack was serious, and the appellant was prone to violence. The two-year custodial term was neither wrong in principle nor manifestly excessive. It remained in force.

• Court of Appeal (Criminal Division) — Allowed the sentence appeal only insofar as the two-year extension period was unlawful: [2009] EWCA Crim 1852.
• Crown Court at Ipswich — On 12 March 2009, imposed an extended sentence of four years for assault occasioning actual bodily harm, comprising two years’ custody and a two-year extension period.