Thompson v R

On an appeal against sentence, Criminal Appeal Act 1968, section 11(3), requires the court to compare the practical severity of the substituted sentence with the original sentence. Although early release provisions are generally ignored when fixing a sentence at first instance, the appellate comparison must take account of automatic release, parole eligibility, recall exposure, licence and the date of unconditional release.

A reduction in the custodial term does not itself ensure compliance. The court may restructure an unlawful sentence only if, taking the case as a whole, the appellant is not more severely dealt with. Consecutive extended sentences may exceptionally be imposed, with consecutive extension periods exceeding the maximum for one offence, but not to create an oppressive equivalent of a life licence.

Four unconnected sentence appeals were heard together because they raised questions about the restriction in section 11(3) of the Criminal Appeal Act 1968 and the correction or substitution of determinate, special custodial, extended and mental-health disposals.

• Thompson received a total of 27 years and 8 months for serious sexual offending. Some purported special custodial sentences were unlawful because the offences were not listed in Schedule 18A. He challenged the total as excessive.
• Cummings, aged 17, received 12 years’ detention for causing grievous bodily harm with intent. The judge had wrongly thought that an extended sentence was unavailable to a person under 18.
• Fitzgerald received eight years’ imprisonment for three rapes of a child under 13. A later purported variation to a special custodial sentence was made outside the statutory period.
• Ford received consecutive determinate terms totalling 45 years for threats to kill. His dangerousness and the inadequacy of a single extended licence period were central to the appeal.

The central issues were the comparative severity of substituted sentences and whether consecutive extended sentences may carry consecutive extension periods.

1. The appeals were allowed in part. Thompson’s and Ford’s sentences were quashed and replaced. Cummings’s and Fitzgerald’s appeals were dismissed.

2. When a sentencing court fixes the appropriate custodial term, it generally leaves early release, parole and licence consequences out of account. On an appeal, however, section 11(3) of the Criminal Appeal Act 1968 requires a practical comparison between the original and proposed sentences. The court must consider automatic release, parole eligibility, the risk of serving the whole custodial term, licence and recall, and the date of unconditional release. A reduction of at least one year in the custodial term does not automatically make a substituted special custodial sentence lawful under section 11(3).

3. An extended sentence is indivisible: its custodial and extension components must run together, whether concurrently or consecutively. Consecutive extended sentences are permissible in an appropriate but exceptional case. The limit in section 226A(8) of the Criminal Justice Act 2003 applies to the extension period for each extended sentence, not to the aggregate of consecutive extended sentences. The power must not be used to create a life-equivalent or otherwise oppressive licence.

4. In Thompson’s case, none of the offences qualified for a special custodial sentence under section 236A. Once dangerousness had been found, the judge should first have considered a life sentence or an extended sentence. The total was manifestly excessive. A substituted extended sentence of 21½ years, comprising 17 years’ custody and 4½ years’ extension, consecutive to two years’ imprisonment, produced earlier parole eligibility and an earlier entitlement to release than the original sentence. It therefore complied with section 11(3).

5. In Cummings’s case, an extended sentence was available under section 226B despite his age and should have been imposed. The determinate sentence of 12 years was nevertheless justified. An extended sentence could not be substituted because it would have treated him more severely on his own appeal.

6. In Fitzgerald’s case, the purported variation under section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 was outside 56 days and invalid. The original unlawful determinate sentences remained valid rather than being a nullity. They were not manifestly excessive, and a section 236A sentence could not be substituted without breaching section 11(3).

7. In Ford’s case, the 45-year determinate sentence was disproportionate. His grave risk to the public made consecutive extended sentences exceptional but justified. Two consecutive extended sentences of 10 years, each comprising six years’ custody and four years’ extension, produced a 20-year sentence and did not make him more severely dealt with than the original 45-year determinate sentence.

• Court of Appeal (Criminal Division): In Thompson v R, [2018] EWCA Crim 639, the court determined four conjoined appeals against sentence. It substituted sentences for Thompson and Ford, and dismissed the appeals of Cummings and Fitzgerald.
• Crown Court at Teeside: Thompson was sentenced on 3 February 2017 for multiple sexual offences.
• Crown Court at Canterbury: Cummings was convicted after trial and sentenced on 12 April 2017.
• Crown Court at Norwich: Fitzgerald was sentenced on 5 February 2016; a purported variation was made on 5 April 2016.
• Crown Court at Lincoln: Ford was sentenced on 12 December 2016.