Barron, R. v

Where a sentencing judge has wrongly imposed determinate sentences despite the mandatory dangerous-offender regime, the Court of Appeal cannot substitute mandatory indeterminate sentences if that would deal with the offender more severely and would contravene section 11(3) of the Criminal Appeal Act 1968. The court may instead exercise its discretion to leave the sentences unaltered.

When offences span the commencement of a new sentencing regime, the sentencing judge should identify the most serious offences and the regime governing them. A minimum term should identify the offences to which it applies, explain its calculation, and be accompanied by a separate disposal for each relevant offence.

The applicant pleaded guilty to 84 sexual offences against young girls and was convicted after trial of attempted rape and rape in respect of a 12-year-old complainant. At Oxford Crown Court, he received life sentences and an overall minimum term of nine years, less time spent on remand.

He applied out of time for leave to appeal sentence, but did not pursue challenges to two determinate sentences and did not challenge the overall life sentence or minimum term. The Registrar raised a separate concern that, after the judge found him dangerous, certain serious offences committed after 4 April 2005 should have received mandatory indeterminate sentences under the Criminal Justice Act 2003.

The central issue was whether the Court of Appeal could, or should, correct that sentencing error.

1. The application was dismissed. The court followed R v Reynolds and others [2007] EWCA Crim 538. Section 11(3) of the Criminal Appeal Act 1968 prevented it from replacing wrongly imposed determinate sentences with mandatory indeterminate sentences where that would deal with the applicant more severely. The Crown's submission that existing life sentences removed that obstacle was rejected. The court therefore made no order in respect of the post-4 April 2005 serious offences.

2. The court construed the original sentencing remarks as imposing the nine-year minimum term for counts 60A and 73 on the first indictment, the two attempted rapes committed in 2006. It treated the implied six-year minimum term for the earlier rape and attempted-rape counts, and count 31 on the first indictment, as concurrent with that term. All determinate sentences were concurrent with the life sentences.

3. Although unnecessary to the formal disposal, the court gave sentencing guidance. Where offending straddles 4 April 2005, the judge should first identify the most serious offences and the applicable sentencing regime. Ordinarily the later offences should be sentenced under the new regime, without a separate penalty for earlier offences, unless the earlier offending is more serious.

4. When fixing a minimum term for a life sentence under section 225 of the Criminal Justice Act 2003, the judge may take account of associated offences and the totality of the offending. The judge should nevertheless state the minimum term for each relevant offence, explain its calculation, identify the offences to which a total term applies, and make a separate disposal for each offence.

• Court of Appeal (Criminal Division): The application for leave to appeal sentence out of time was dismissed; the court made no alteration to the post-4 April 2005 sentences. [2009] EWCA Crim 837
• Oxford Crown Court: HHJ Hall sentenced the applicant on 30 August 2007 for 86 sexual offences, imposing life imprisonment with an overall minimum term of nine years less 229 days on remand.