O'Meally, R v

A minimum term imposed for life imprisonment cannot be increased to incorporate an activated suspended sentence for an offence which is not a serious specified offence for the purposes of the Criminal Justice Act 2003. That element of the minimum term is unlawful.

Where an unlawful sentencing element is identified, it may be unjust to leave it undisturbed despite the lapse of time. The appropriate correction may restore the lawful minimum term and activate the suspended sentence separately. A concurrent activated term may be proper where the breach formed an integral part of the history leading to the principal convictions.

The applicant had been sentenced at Wolverhampton Crown Court to life imprisonment for nine rapes, with an initial minimum term of eight years and nine months. The judge later increased the minimum term in order to reflect activation of a 51-week suspended sentence for an earlier breach of a sexual offences prevention order.

Following a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, the appeal against conviction had been dismissed. The Commission also raised the sentencing issue. The parties agreed that the earlier breach was not a serious specified offence for the purposes of sections 224 and 225 and Schedule 15 to the Criminal Justice Act 2003.

The issue was whether the increased minimum term should stand and, if not, how the activated suspended sentence should be ordered.

1. Leave to appeal sentence was granted and the appeal was allowed. The court quashed the minimum term of nine years and three months and substituted the original minimum term of eight years and nine months.
2. The judge had no power to increase the life-sentence minimum term in order to incorporate punishment for the breach of the suspended sentence. The breach of the sexual offences prevention order was not a serious specified offence for the purposes of sections 224 and 225 and Schedule 15 to the Criminal Justice Act 2003. It could not therefore lawfully be included in the minimum period imposed under section 82A of the Powers of Criminal Courts (Sentencing) Act 2000.
3. Although the error was identified many years after sentence, it would be unjust to leave an illegal component of the sentence undisturbed. The court therefore corrected it.
4. The suspended sentence of 51 weeks was activated without alteration. It was to run concurrently, rather than consecutively, because the breach, although shortly before the indictment period, was an integral part of the overall history leading to the rape convictions and their sentences.

• Court of Appeal (Criminal Division) — the applicant's conviction appeal, following a Criminal Cases Review Commission reference, was dismissed in a judgment handed down on 20 May 2015. On the reserved sentencing issue, the court granted leave to appeal and allowed the appeal against sentence.
• Wolverhampton Crown Court — on 29 September 2009, HHJ Watson imposed life imprisonment for nine rapes and specified an eight-year-and-nine-month minimum term. The minimum term was later varied to nine years and three months after activation of an earlier suspended sentence.