A v R.

When correcting a sentence that omitted a mandatory special custodial sentence under Criminal Justice Act 2003, section 236A, the Court of Appeal must ensure that the offender is not dealt with more severely on appeal contrary to section 11(3) of the Criminal Appeal Act 1968.

The exercise is multifactorial and case-specific. The court should first determine the appropriate sentence without regard to release provisions. It should then compare the practical effect of the proposed and original sentences, including automatic release, parole eligibility and licence. No rigid calculation or formula determines comparative severity.

The appellant was convicted after a retrial of sexual offences against two boys, including two counts of assault by penetration of a child under 13. At the Crown Court at Snaresbrook, the judge imposed concurrent sentences totalling 10 years' imprisonment and made a sexual harm prevention order.

The sentencing judge had been required to impose special custodial sentences under section 236A of the Criminal Justice Act 2003 for the two assault-by-penetration counts, but imposed ordinary determinate sentences instead. The Full Court refused the appellant's applications concerning conviction and granted leave to appeal against sentence on that issue. Leave was also granted to challenge the terms of the sexual harm prevention order.

The central issue was whether, and on what terms, the omission of the mandatory sentence could be corrected without making the appellant's sentence more severe on appeal.

1. Appeal against sentence allowed. The court quashed the 10-year determinate sentences on counts 2 and 4. It substituted, on each count, a special custodial sentence for an offender of particular concern under section 236A of the Criminal Justice Act 2003, comprising an eight-year custodial term and a 12-month licence period. All sentences remained concurrent.

2. Section 236A was mandatory because the relevant offences were listed in Schedule 18A and the statutory conditions were met. However, section 11(3) of the Criminal Appeal Act 1968 prevented the court from correcting the error if, taking the case as a whole, the appellant would be dealt with more severely.

3. The court followed the essential approach in R v Reynolds and Others [2007] EWCA Crim 538, while explaining the relationship between R v Fruen; R v S (D) [2016] EWCA Crim 561, R v Thompson and Others [2018] EWCA Crim 639 and R v KPR [2018] EWCA Crim 2537. A court must first determine the appropriate sentence in the ordinary way, without considering the likely time in custody. It must then compare the practical severity of the proposed sentence with the original sentence.

4. That comparison is not a mathematical exercise. It requires consideration of automatic release, parole eligibility and licence. The date of unconditional release may be important, but it is not determinative. The court rejected the proposed rigid reduction of the custodial term to five years simply to preserve the original automatic-release date.

5. The original overall term of 10 years was too long for this previous offender of good character. The substituted sentence reduced the custodial term by two years. Although the appellant could remain in custody beyond the original automatic-release date if the Parole Board did not consider release safe, he became eligible for release after four years. The new sentence was therefore not more severe overall and was just.

6. The sexual harm prevention order was varied, without opposition, principally by reducing its age-based restrictions from under 18 to under 16 and by revising the exceptions and residence prohibition.

• Court of Appeal (Criminal Division): In A v R [2020] EWCA Crim 948, the court allowed the appeal against sentence to the extent of substituting mandatory special custodial sentences and varying the sexual harm prevention order.
• Crown Court at Snaresbrook: Following a retrial, the appellant was convicted on 16 April 2018. On 11 May 2018 the judge imposed concurrent sentences totalling 10 years' imprisonment and made a sexual harm prevention order.