Fruen & Anor, R v (Rev 1)

Where the conditions in section 236A of the Criminal Justice Act 2003 are met and imprisonment is imposed, the court must impose the statutory composite sentence. It must comprise the appropriate custodial term and a further one-year licence period. An ordinary determinate sentence is not available.

A repealed historic sexual offence is within the scheme where its facts would amount to the specified modern penetrative offence. Each consecutive section 236A sentence is indivisible and carries its own consecutive licence period. On an offender’s appeal, the Court of Appeal cannot add an omitted licence period if that would make an otherwise appropriate custodial sentence more severe contrary to section 11(3) of the Criminal Appeal Act 1968.

Two applicants challenged sentences for historic sexual offending. Fruen pleaded guilty at Luton Crown Court to two counts of indecent assault. One offence involved digital penetration of a child under 13. The judge imposed consecutive determinate sentences totalling six years but did not apply section 236A of the Criminal Justice Act 2003.

DS was convicted at Liverpool Crown Court of numerous offences against two young step-granddaughters. Several historic indecent-assault counts and two modern counts involved digital penetration. He received a total of 15 years, comprising 14 years’ custody and one year’s licence. The common issues concerned the operation and expression of the special custodial sentence under section 236A, and whether either sentence was excessive or otherwise unlawful.

1. The court refused Fruen’s appeal against sentence and DS’s application relating to sentence. Fruen’s six-year custodial term was not excessive. DS’s total custodial term of 14 years was not manifestly excessive. The court directed amendment of DS’s court record to identify all qualifying counts as section 236A sentences.

2. Under section 236A of the Criminal Justice Act 2003, where the statutory preconditions are met and the court imposes imprisonment rather than life imprisonment or an extended sentence, it must impose a single composite sentence. The sentence comprises the appropriate custodial term and a further one-year licence period. A historic repealed offence may qualify as an abolished offence in Schedule 18A where the facts establish the modern equivalent, including penetration. The indictment need not itself plead penetration if it is admitted or found by the sentencing judge.

3. The appropriate custodial term is fixed under the applicable sentencing guideline for the equivalent modern offence, subject to the maximum available when the historic offence was committed. A qualifying offence does not invariably require custody. In an exceptional case a community order remains available. A section 236A sentence should not be suspended because its statutory structure makes that course impracticable and undesirable.

4. A section 236A sentence is indivisible. Where qualifying sentences are concurrent, their additional one-year licence periods run concurrently. Where they are consecutive, each must carry a consecutive one-year licence period. The power to impose consecutive sentences remains unaffected by section 236A.

5. The omission of section 236A from Fruen’s sentence could not be corrected by adding an unexpressed licence year. That would increase the sentence on his own appeal, contrary to section 11(3) of the Criminal Appeal Act 1968. Nor was it proper to reduce the appropriate custodial term artificially so as to accommodate the omitted licence year. The sentence therefore remained unchanged, although it was more lenient than Parliament intended.

6. In DS’s case, the judge should have attached the licence period to each qualifying count, including the historic penetrative counts. The erroneous statement that release would occur at the halfway point did not invalidate the sentence. DS and his counsel understood the aggregate sentence, and the recording defects supplied no ground for appellate intervention.

• Court of Appeal (Criminal Division) — in R v Fruen and DS, the court refused Fruen’s appeal against sentence and refused DS’s application relating to sentence: [2016] EWCA Crim 561.
• Crown Court at Luton — on 29 January 2016, Fruen received consecutive determinate sentences totalling six years for two historic indecent assaults.
• Crown Court at Liverpool — on 18 January 2016, DS received a total of 15 years, expressed as 14 years’ custody and a further year’s licence, for multiple sexual offences.