Butler, R. v

Where a sentencing court has omitted credit for time spent on a qualifying curfew, the Court of Appeal may extend time and allow an appeal against sentence where this is in the interests of justice. Material considerations include whether the offender was responsible for the omission and whether they acted promptly after discovering it. The court may then order the correct statutory credit to count towards the sentence under Criminal Justice Act 2003, section 240A.

The applicant was convicted at Bristol Crown Court on 22 December 2015 of three rapes and one sexual assault. He received concurrent sentences of 11 years’ imprisonment for the rapes and two years’ imprisonment for the sexual assault.

More than 1,300 days later, he sought an extension of time and leave to appeal against sentence. The sole issue was the sentencing court’s failure to give credit under section 240A of the Criminal Justice Act 2003 for qualifying curfew time. The agreed qualifying period was 489 days, producing statutory credit of 245 days.

1. The application to extend time and for leave to appeal was granted, and the appeal against sentence was allowed. The court held that it was in the interests of justice to correct the omitted statutory credit.

2. The sentencing court had made no order for credit because the issue had not been raised at the sentencing hearing. There was no suggestion that the applicant was responsible for that omission. He had also acted promptly by notifying his solicitors once he discovered the error.

3. The court treated R v Thorsby and others [2015] EWCA Crim 1 as addressing when a substantial extension of time may be granted where credit for qualifying curfew has been omitted. The circumstances of this case justified that course.

4. Under section 240A of the Criminal Justice Act 2003, 245 days were ordered to count towards the appellant’s sentence. That represented one half of the agreed 489 days spent on qualifying curfew before sentence.

• Court of Appeal (Criminal Division): Granted a substantial extension of time and leave to appeal against sentence. Allowed the appeal and ordered 245 days’ credit under section 240A of the Criminal Justice Act 2003.
• Crown Court at Bristol: On 22 December 2015, convicted the applicant of three offences of rape and one sexual assault, imposing concurrent sentences. No order was made for qualifying-curfew credit.