Cotilla, R. v

Where a sentencing court wrongly imposed an extended sentence when a mandatory indeterminate sentence was required, section 11(3) of the Criminal Appeal Act 1968 prevents the Court of Appeal from substituting the more severe mandatory sentence on the offender’s appeal. The erroneous sentence remains valid and effective unless varied or quashed.

The court should respect a properly made finding of dangerousness and should not alter the sentence solely to correct that error. It may nevertheless adjust an excessive component of the extended sentence on ordinary sentencing grounds. A comprehensive sexual offences prevention order does not, without more, make a substantial licence period disproportionate, because licence conditions provide supervision, support and recall powers.

The applicant pleaded guilty at Guildford Crown Court to attempting to meet a child following sexual grooming. HHJ Crocker imposed an extended sentence of 10 years, comprising three and a half years’ custody and a six-and-a-half-year extension, under the dangerousness provisions of the Criminal Justice Act 2003.

The offence was a serious specified offence and the judge found that the applicant was dangerous. The statutory consequence should therefore have been imprisonment for public protection, rather than an extended sentence. On an out-of-time appeal against sentence, the court considered whether it could substitute the mandatory sentence, whether the custodial term was excessive, and whether the licence period remained justified despite a lifelong sexual offences prevention order.

1. Permission to appeal out of time was granted and the appeal was allowed in part. The custodial term was quashed and replaced by 18 months’ imprisonment. The six-and-a-half-year extended licence period remained in force.

2. The applicant’s offence was a serious specified offence and the finding of dangerousness meant that Criminal Justice Act 2003, section 225 required imprisonment for public protection. Section 227 did not permit an extended sentence for a serious offence which was also a specified offence. The Crown Court had therefore sentenced under the wrong regime.

3. Following R v Reynolds and others [2007] EWCA Crim 538, section 11(3) of the Criminal Appeal Act 1968 prevented the Court of Appeal from replacing the extended sentence with imprisonment for public protection. That substitution would deal with the appellant more severely on his own appeal. The extended sentence was not a nullity: it was within the Crown Court’s powers and remained effective unless varied or quashed.

4. The error did not prevent the court from considering distinct complaints about the sentence actually imposed. The three-and-a-half-year custodial term was excessive. The offence was an attempt, the applicant had pleaded guilty and had previous good character. The comparable sentencing approach in Barnett [2008] 1 Cr App R (S) 61 supported an 18-month term. Time on remand was to count, with the consequence that the applicant was to be released immediately.

5. The licence extension was not excessive. A sexual offences prevention order and licence serve different protective functions. Licence conditions permit continuing contact, support and risk management, and breach may result in recall rather than prosecution. The risk of future offending justified a substantial period of licence supervision.

• Court of Appeal (Criminal Division) — Permission to appeal out of time was granted. The appeal against sentence was allowed to the extent of reducing the custodial term, while retaining the extended licence period: [2009] EWCA Crim 216.
• Crown Court at Guildford (HHJ Crocker) — On 22 March 2007, imposed an extended sentence of 10 years, comprising three and a half years’ custody and a six-and-a-half-year licence extension.