R v Frank Ronald Agate

A renewed application for permission to appeal sentence will be refused where the sentencing judge considered the offender’s medical condition and no reasonably arguable basis shows that the sentence was excessive. Unsupported assertions that health has subsequently worsened do not establish such a basis. Where an appeal is wholly without merit, the Court of Appeal may order under section 29(1) of the Criminal Appeal Act 1968 that a specified period in custody pending its determination does not count towards the sentence.

The applicant was convicted by a jury of attempted rape and three offences of false imprisonment with intent to commit a sexual offence. He had posed as a minicab driver to lure intoxicated young women into his car on three occasions.

At Kingston-upon-Thames Crown Court, HHJ Barklem imposed an extended sentence of 13 years for attempted rape, comprising ten years’ custody and a three-year extended licence period. Concurrent extended sentences were imposed for the other offences. The applicant renewed his application for permission to appeal sentence, relying principally on his ill health and the suggestion in the pre-sentence report that a suspended sentence might be available.

The court had previously dismissed his renewed application for permission to appeal against conviction: [2022] EWCA Crim 995. The issue on this application was whether either proposed ground gave an arguable basis for challenging the sentences.

1. Permission to appeal was refused. The proposed challenge to sentence was wholly without merit. A suspended sentence was plainly inappropriate for these serious offences, committed against three women on separate occasions.

2. The sentencing judge had correctly treated the attempted rape as falling within category 2A of the offence-specific guideline. Although the offence was an attempt, the reduction from the completed-offence sentence was properly modest because of the advanced nature of the attempt and the steps the victim had to take to escape. The ten-year custodial term was arguably lenient even after allowing for mitigation, given the multiple offences and the applicant’s prior sexual offending.

3. The applicant’s Parkinson’s disease, diabetes and back pain had been fully placed before, and considered by, the sentencing judge. His asserted deterioration after sentence was unsupported by medical evidence and did not create an arguable ground of appeal. If a prisoner is near the end of life, release to die in the community is a matter to raise with the Secretary of State, rather than a basis for this appellate challenge.

4. Because the renewed application was wholly without merit, the court made an order under section 29(1) of the Criminal Appeal Act 1968. Twenty-eight days spent in custody pending determination of the appeal would not count towards the sentences.

• Court of Appeal (Criminal Division): Renewed application for permission to appeal sentence refused: [2023] EWCA Crim 1081.
• Court of Appeal (Criminal Division): Renewed application for permission to appeal against conviction dismissed: [2022] EWCA Crim 995.
• Crown Court at Kingston-upon-Thames: On 27 May 2021, HHJ Barklem imposed an extended sentence for attempted rape and concurrent extended sentences for the false-imprisonment offences.