Dix, R. v

An appellate court may, under section 11(3) of the Criminal Appeal Act 1968, quash an unlawful sentence and substitute any sentence that the sentencing court had power to impose. It must ensure, taking the case as a whole, that the appellant is not dealt with more severely on appeal.

Where an extended sentence was unlawfully attached to an offence with a lower statutory maximum, the court may correct the error by attaching the extended sentence to another offence on the indictment for which that sentence was available. It may do so where this preserves the sentencing judge’s lawful assessment of dangerousness and intended overall sentence.

The applicant pleaded guilty in the Crown Court at Newport to four offences of putting a person in fear of violence by harassment and to arson. He received an eight-year extended sentence on one harassment count, comprising four years’ custody and a four-year extended licence period. Concurrent sentences were imposed on the other counts, including 21 months’ imprisonment for arson.

After his former representatives withdrew, he sought an adjournment and permission to vacate his guilty pleas. The trial judge refused both applications. The applicant renewed his application for leave to appeal against conviction after refusal by the single judge. The single judge also referred the sentence to the Full Court because the extended sentence exceeded the five-year maximum for the harassment offence.

The issues were whether the convictions were unsafe and whether the sentencing error could be corrected without increasing the overall penalty.

1. The court refused the renewed applications for leave to appeal against conviction. The applicant had been represented by experienced counsel and conscientious solicitors. He had received proper advice about the evidence, understood the charges when re-arraigned, and independently chose to plead guilty. There was no arguable basis for treating any conviction as unsafe.

2. The eight-year extended sentence imposed for harassment was unlawful because the maximum sentence for that offence was five years. The sentencing judge had nevertheless lawfully assessed the applicant as dangerous under the Criminal Justice Act 2003, and the intended overall sentence was appropriate.

3. Under section 11(3) of the Criminal Appeal Act 1968, the court could quash a sentence under appeal and substitute a sentence which the Crown Court had power to impose, provided that the appellant was not more severely dealt with overall. It therefore substituted 21 months’ imprisonment for the extended sentence on count 1. It quashed the 21-month sentence for arson on count 10 and substituted the eight-year extended sentence, comprising four years’ custody and four years’ extended licence.

4. The court could not add the omitted £120 victim surcharge. Adding it would increase the total penalties, contrary to the statutory limitation on its power.

• Court of Appeal (Criminal Division): Renewed applications for leave to appeal conviction were refused. The court varied the sentences by moving the eight-year extended sentence from the harassment count to the arson count.
• Crown Court at Newport: The applicant pleaded guilty on 30 September 2013 and was sentenced on 23 October 2013. The court imposed an eight-year extended sentence on a harassment count and concurrent sentences on the remaining counts.