REGINA v TERENCE ANTHONY DYER

A sentencing court cannot make a substantive variation to a sentence after the 56-day limit in section 155 of the Powers of Criminal Courts (Sentencing) Act 2000. Any such variation is ineffective. A substantive variation should also be made in the defendant’s presence unless the right to attend has been waived.

An extended sentence should be imposed for a specified offence, with the custodial term reflecting other offending where appropriate. A sentencing judge may rely on a probation officer’s reasoned assessment of dangerousness even where an actuarial tool produces a lower statistical risk assessment.

The applicant was convicted at Guildford Crown Court of sexual offences against three young male complainants, including attempted rape, sexual activity with a child, inciting a child to engage in sexual activity, and sexual assault.

The sentencing judge intended to impose a total sentence of 19 years, comprising 14 years’ custody and a five-year extension period. The sentence was articulated so that the extension was not attached to a particular custodial sentence. After 56 days, the judge purported to correct the order.

The applicant sought leave to appeal against sentence. He challenged the finding that he was dangerous and contended that the extension should attach only to the ten-year sentence for attempted rape.

1. Sentence varied. Leave to appeal was granted. The court rejected the challenge to the finding of dangerousness, but varied the sentence so that it lawfully gave effect to the sentencing judge’s stated intention.
2. The trial judge had no power to make the attempted post-sentence correction. The 56-day period under section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 had expired. A substantive variation after that period was ineffective. Further, a variation should ordinarily be made in the defendant’s presence unless that right has been expressly or impliedly waived. The informal communications with the defence did not satisfy those requirements.
3. The dangerousness finding was open to the judge. The probation officer had disclosed the low statistical assessment produced by the risk tool, explained why the sustained pattern of offending and the applicant’s attitudes nevertheless indicated a raised risk, and assessed him as posing a high risk of serious harm. The judge formed his own view on all the evidence and was entitled to take support from that professional assessment.
4. The court distinguished R v Pinnell & Ors [2010] EWCA Crim 2848. The sentencing remarks made clear that the judge intended a 14-year custodial term followed by a five-year extension. The law permitted the judge to reflect the other offending by increasing the term for the most serious specified offence and imposing the extended sentence for that offence.
5. The sentence for attempted rape was therefore varied to 19 years’ imprisonment, comprising a determinate custodial term of 14 years and an extension period of five years. No separate penalties were imposed for the remaining offences because their criminality was encompassed within that extended sentence.

• Court of Appeal (Criminal Division): Granted leave, dismissed the challenge to dangerousness, held that the purported post-expiry correction was ineffective, and varied the sentence to an extended sentence of 19 years for attempted rape.
• Guildford Crown Court: The applicant was convicted and sentenced. The judge intended a total sentence of 19 years, comprising 14 years’ custody and a five-year extension period, but later purported to alter the order after the statutory time limit.