Kallakis, R v

A defendant seeking, out of time, to appeal a sentence previously dealt with on an Attorney General’s reference must show a good reason for an extension and ordinarily a risk of significant injustice. The court will normally refuse leave where the proposed arguments could and should have been advanced at the reference, particularly where they seek to re-litigate issues already decided.

Sentencing comparisons with other cases are generally unhelpful unless they are guideline decisions. The seriousness of fraud depends on both culpability and harm, assessed on the facts of the individual case.

The applicant was convicted at Southwark Crown Court of two conspiracies to defraud and received concurrent sentences of seven years’ imprisonment. Following an Attorney General’s reference, the Court of Appeal replaced the concurrent sentence for the second conspiracy with four years’ imprisonment to run consecutively, producing a total of 11 years: [2013] EWCA Crim 709.

More than three years later, the applicant sought an extension of time and leave to appeal that increased sentence as manifestly excessive. He relied on the trial judge’s assessment, alleged disproportionate consecutive sentencing, double jeopardy, comparator cases and an asserted lack of clarity in the earlier court’s totality reasoning. The central issue was whether the late challenge disclosed an arguable ground and significant injustice.

Applications refused. The court refused both an extension of time and leave to appeal against sentence.

1. Applying R v Hughes [2009] EWCA Crim 841, a defendant may in principle appeal a sentence imposed after an Attorney General’s reference. However, the required extension of time is not formal. It requires good reason and ordinarily significant injustice if it is refused. Leave will generally be refused where the argument could and should have been made at the reference.

2. The delay of just over three years was substantial. The applicant had been represented at the reference, and the proposed grounds either could have been raised there or had in substance been raised and rejected. The application was therefore an impermissible attempt to re-litigate the sentencing decision, rather than an exceptional case warranting a further appeal.

3. The earlier court’s reasoning gave no arguable basis for challenge. It had concluded that the second fraud involved a separately targeted bank which suffered substantial loss. A consecutive sentence was therefore required, subject to totality. It identified a six-year starting point for that offence if sentenced alone and reduced it to four years to produce a just and proportionate overall sentence.

4. The court also rejected reliance on comparator sentences. Such decisions are fact-sensitive and, unless they are guideline cases, usually assist little. The absence of a double-jeopardy adjustment did not disclose an arguable error in light of the changed practice concerning jeopardy.

No significant injustice was established. In the circumstances explained by counsel, the court made no loss of time order.

• Court of Appeal (Criminal Division) — the present court refused the late application for an extension of time and for leave to appeal: [2017] EWCA Crim 2461.
• Court of Appeal (Criminal Division) — on an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court increased the overall sentence from seven to 11 years by imposing a four-year consecutive sentence for the second conspiracy: [2013] EWCA Crim 709.
• Southwark Crown Court — the applicant was convicted of two conspiracies to defraud and sentenced to concurrent terms of seven years’ imprisonment.