John Andrew Durkin, R v

A sentence under s.236 A of the Criminal Justice Act 2003 is indivisible. It must be imposed for each qualifying offence and comprises custody and an extension period. Consecutive sentences make both elements consecutive. Non-qualifying determinate terms must remain separate, and the statutory maximum must be respected.

When restructuring an unlawful sentence, the Court of Appeal must ensure that the replacement is lawful, just and proportionate and does not make the appellant worse under s.11(3) of the Criminal Appeal Act 1978. The punitive element is principally the custodial term. The sentence should be assessed as a whole without a rigid mathematical formula.

John Andrew Durkin sought to renew his application for permission to appeal against convictions for historic sexual offences and to extend time for bringing that application. He also appealed against sentence, initially on the limited issue of the victim surcharge, but the court granted leave on a wider technical issue.

The Crown Court at Liverpool had convicted him on 18 counts of indecent assault and imposed 16 years’ imprisonment with a one-year extended licence, together with a victim surcharge. The Court of Appeal considered alleged fresh evidence, disclosure, trial participation, representation and the legality of the extended sentence. The central issues were whether any conviction ground had real merit and how the unlawful sentence should properly be restructured.

Disposition. The application for an extension of time to appeal against conviction was refused. The sentence appeal succeeded on the technical issue. The sentence was restructured and the victim surcharge was quashed.

1. The court considered the proposed conviction grounds on their merits despite the substantial delay. None was arguable. The proposed fresh evidence was irrelevant, lacked probative value or was unsupported by evidence showing what a proposed witness could say, and failed the test under s.28 of the Criminal Appeal Act 1968. The disclosure complaint had no evidential basis. The complaint about bereavement arose despite counsel’s advice to seek an adjournment, which the appellant had rejected. The decision in Orr [2016] EWCA Crim 889 was irrelevant to his position. An inadequate-representation complaint required very clear evidence of substantial failures, which was absent.
2. The sentencing judge had correctly used the modern equivalent offences and the applicable sentencing guidance for historic offending. However, the sentence under s.236 A of the Criminal Justice Act 2003 unlawfully included determinate sentences for two non-qualifying offences and added a single extension period to sentences imposed for two separate sets of qualifying offences. The court noted the apparent pleading issue under the principles in Canavan [1998] 1 WLR 604, but it did not need to resolve it because the sentences remained justifiable on the proper approach.
3. A sentence under s.236 A is a single indivisible sentence comprising custody and an extension period. It must be imposed for each qualifying offence. If such sentences run consecutively, both the custodial terms and extension periods run consecutively. The approach in LF [2016] 2 Crim App R (S) 30 was applied.
4. The correct structure was two consecutive two-year determinate sentences on Counts 1 and 18, followed consecutively by a 14-year s.236 A sentence comprising 12 years’ custody and a two-year extension. The judge was entitled to find that the conduct involving rubbing the penis against the victim’s vagina amounted to sexual activity rather than attempted penetration.
5. The restructuring did not breach s.11(3) of the Criminal Appeal Act 1978. The release consideration point remained eight years, and the maximum custodial period under the lawful structure was lower. The court treated the custodial term as the critical punitive element and followed the guidance in A [2020] EWCA Crim 948 against a rigid mathematical approach.

• Court of Appeal (Criminal Division), [2021] EWCA Crim 1866: refused an extension of time for the conviction appeal, restructured the unlawful sentence and quashed the victim surcharge.
• Crown Court at Liverpool: convicted the appellant on 18 counts of indecent assault on 19 April 2016 and sentenced him three days later to 16 years’ imprisonment with a one-year extended licence and a victim surcharge.