Pinnell & Anor, R. v

For an extended sentence under section 227(2B) of the Criminal Justice Act 2003, the appropriate custodial term may reflect the totality of associated offending. The court may aggregate the shortest terms commensurate with each associated offence and attach the resulting four-year custodial term to the lead specified offence.

Separate consecutive extended sentences, each with a custodial term below four years, cannot collectively meet the statutory threshold. Consecutive extended sentences are nevertheless lawful where each extended sentence independently satisfies the statutory conditions. The aggregate of the custodial term and extension period attached to an offence must not exceed that offence’s statutory maximum.

Two applications for leave to appeal against sentence were referred together because both raised the proper structure of extended sentences.

Pinnell received two consecutive extended sentences for grievous bodily harm. Each comprised two years’ custody and 18 months’ extension. Joyce received a five-year extended sentence, comprising four years’ custody and 12 months’ extension, for an assault occasioning actual bodily harm and associated offences.

In each case the finding that the offender was dangerous was unchallenged. The central issue was whether the four-year threshold in section 227(2B) of the Criminal Justice Act 2003 could be met by aggregating associated offending, and whether extended sentences could be imposed consecutively.

1. Both applications were allowed and the sentences were amended. An extended sentence was justified in each case because the relevant offender was dangerous and had committed a specified offence. The issue was the four-year appropriate custodial term required by section 227(2B) of the Criminal Justice Act 2003.

2. Section 153 permits the custodial term for a specified offence to reflect the seriousness of associated offences. Accordingly, where no single offence warrants four years’ custody, the court must consider the aggregate seriousness of the associated offending. If that produces a four-year term, it may be imposed for the lead specified offence, or concurrently for more than one specified offence. The sentence remains subject to totality and to the statutory maximum for the offence carrying the extended sentence.

3. Separate consecutive sentences of less than four years cannot be combined merely to satisfy section 227(2B). Each offence for which an extended sentence is imposed must independently justify, on ordinary sentencing principles including permitted aggregation, an appropriate custodial term of at least four years.

4. In Pinnell, the two-year custodial terms did not meet that condition. The court substituted concurrent extended sentences of four years’ custody for the section 20 counts. Because the maximum sentence for each count was five years, the extension period was reduced to one year.

5. In Joyce, four years’ custody was justified by the aggregate seriousness of the assault, weapon possession and theft. The court imposed the extended sentence for the section 47 assault and concurrent determinate sentences for the associated offences. The overall custodial and extension periods remained four years and 12 months.

6. Consecutive extended sentences are not barred. Following the 2008 amendments, release occurs at the halfway point of the aggregate custodial terms, so the former practical objections concerning release and licence calculation no longer apply. They should nevertheless be used only where there is a particular reason.

• Court of Appeal (Criminal Division): Leave was granted and both sentencing appeals were allowed. The extended sentences imposed by the Crown Courts were amended.
• Crown Court at Cardiff: HHJ Hopkins QC imposed consecutive extended sentences on Pinnell.
• Crown Court at Manchester: HHJ Henshell imposed an extended sentence on Joyce.