Smith, R v

An extended determinate sentence must comprise a single custodial term and a single extended licence period. An extension period cannot be attached to separate custodial terms.

An extended sentence may be imposed only where the statutory qualifying conditions are met. If an unlawful structure does not reflect the sentencing judge’s stated intention, the appellate court may impose one extended sentence for the lead offence and concurrent determinate terms for associated offences, provided that structure reflects the total seriousness of the offending.

Dangerousness remains a judicial assessment. A pre-sentence report may assist the court, but does not determine the issue.

The applicant pleaded guilty at Snaresbrook Crown Court to wounding with intent, attempted wounding with intent, possession of an offensive weapon and unlawful wounding. He had attended a party armed with a knife and injured two people after violence began.

The sentencing judge found him dangerous and intended to impose eight years’ custody followed by a four-year extended licence period. The record sheet instead recorded separate extended sentences, with one consecutive term. The single judge refused leave to appeal on the applicant’s grounds but referred the case to the full court because the recorded sentences were unlawful.

The central issues were whether the dangerousness finding and total sentence were open to challenge, and how the unlawful sentences should be corrected.

1. The court refused leave to appeal against sentence on the applicant’s substantive grounds. The judge was entitled to find that he was dangerous. The applicant had initiated a confrontation while armed with a particularly vicious knife, continued to use it after seriously injuring one victim, and stabbed another who intervened. The pre-sentence report was relevant information which the judge could properly take into account, although dangerousness was ultimately a judicial decision.

2. The intended total of eight years’ custody and four years’ extended licence was not arguably manifestly excessive, even allowing full credit for guilty pleas. The offending justified that overall sentence.

3. The recorded sentences were nevertheless unlawful. An extended sentence is a two-part sentence comprising a custodial element and an extended licence period. It cannot be constructed from separate custodial terms with one extension period: R v Brown [2006] EWCA Crim 1996. In addition, the conditions for extended sentences were not met on counts 3, 4 and 5.

4. The court therefore quashed the extended sentences. To give effect to the sentencing judge’s intention and the justice of the case, it substituted a single 12-year extended sentence on count 2, comprising eight years’ custody and a four-year extension period. It imposed concurrent determinate sentences of one year on counts 3 and 4, and two years on count 5. Aggregating the custodial sentences into the lead offence and imposing concurrent terms on the remaining counts was an approved course: Pinnell and Joyce [2010] EWCA Crim 2848.

• Court of Appeal (Criminal Division): Refused leave to appeal against the substantive sentence grounds, but quashed the unlawful recorded sentences and substituted a lawful sentencing structure.
• Crown Court at Snaresbrook: The applicant pleaded guilty to counts 2 to 5, was acquitted after trial on count 1, and was sentenced as a dangerous offender.