Lowe, R. v

An extended sentence under Powers of Criminal Courts (Sentencing) Act 2000, section 85, may be imposed only for offences committed on or after 30 September 1998. An extended sentence imposed for earlier offending is unlawful, however compelling the need for public protection. On allowing a sentence appeal, the appellate court must not substitute a sentence which, taken as a whole, is more severe than the original sentence. Where available, the court may nevertheless use a separate statutory power to direct supervision until the sentence expires.

The appellant was convicted at Bolton Crown Court of 20 counts of indecent assault upon two young children. The offences were committed between 1990 and July 1993. On 6 February 2007, the sentencing judge imposed concurrent extended sentences under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 on two counts, comprising five years’ imprisonment and five years’ extended licence.

The appellant sought permission to appeal out of time on the ground that section 85 was unavailable for offences committed before its commencement date. The central issue was whether the extended sentences were lawful and, if not, what replacement orders the court could make.

Decision

1. The court granted leave and allowed the appeal. The extended sentences on counts 10 and 20 were unlawful because section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 applied only to offences committed on or after 30 September 1998. All of the appellant’s offences had been completed by 12 July 1993.
2. The sentencing judge’s assessment of the appellant’s dangerousness, and the objective of protecting the public, were justified. Those considerations could not confer a sentencing power which Parliament had not provided.
3. The court was therefore required to interfere. Its appellate powers were constrained by the statutory requirement that a substituted sentence must not, taken as a whole, be more severe than that imposed below.
4. The extended sentences were quashed and concurrent sentences of five years’ imprisonment were substituted on counts 10 and 20, concurrent with the sentences on the remaining counts.
5. The court also made a direction under section 44 of the Criminal Justice Act 1991 (as amended) that the appellant be supervised until his sentence expired. Time spent on remand was to count towards the sentence.

• Court of Appeal (Criminal Division): Granted leave to appeal out of time and allowed the sentence appeal. It quashed the unlawful extended sentences and substituted concurrent five-year sentences.
• Bolton Crown Court: On 21 December 2006 the appellant was convicted of 20 counts of indecent assault. On 6 February 2007 the judge imposed extended sentences on two counts under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000.