R v LN

Where determinate sentences are imposed alongside sentences under section 278 of the Sentencing Code, the section 278 sentence is a single and indivisible sentence comprising custody and an extension period. It must be pronounced separately, after the determinate sentences, and consecutively to them.

The statutory rules governing release and parole eligibility are irrelevant when fixing the length of a sentence or reviewing whether it is manifestly excessive. They must nevertheless be correctly applied when identifying the point at which the offender becomes eligible for Parole Board consideration.

The applicant pleaded guilty at the Crown Court at Woolwich to numerous historic sexual offences against two child members of his extended family. On 10 August 2022, he received an aggregate sentence of 15 years and six months’ imprisonment, with two further years on licence under section 278 of the Sentencing Code.

Having been refused leave by a single judge, he renewed his application to appeal his sentence. He contended that the overall term was manifestly excessive, relying on the guideline categorisation, his age and ill-health, the effect on his wife, compensation, delay and previous good character. The court also considered whether the sentence had been structured and pronounced lawfully.

1. Appeal allowed to a limited extent. The total custodial term of 15 years and six months was not manifestly excessive. The judge made no error in assessing culpability as category A, given the grave abuse of trust, and was entitled to place harm in category 1 or at the top of category 2. The applicant’s age, ill-health, previous good character, delay and the effect on his wife did not make the total sentence excessive.
2. The sentence was nevertheless incorrectly pronounced. A sentence under section 278 of the Sentencing Code is a single, indivisible sentence comprising custody and an extension period: R v LF [2016] EWCA Crim 561. Where it is imposed with standard determinate sentences, the determinate sentences must be pronounced first and the section 278 sentences must then be imposed consecutively: R v Ulhaqdad [2017] EWCA Crim 1216.
3. The court substituted a properly structured sentence. The determinate sentences totalled eight years and six months. The consecutive section 278 sentences on counts 12 and 14 totalled seven years’ custody and two years’ further licence periods. The other sentences remained concurrent as specified by the court.
4. The sentencing judge had been mistaken about the point at which the applicant would be considered for release. That error arose after sentence and did not affect the overall term. Release provisions are irrelevant to sentencing and to the appellate assessment of excessiveness: R v Patel [2021] EWCA Crim 231. Under section 244 A of the Criminal Justice Act 2003, the applicant would be eligible for Parole Board consideration after eight years and 11 months.

• Court of Appeal (Criminal Division) — in [2023] EWCA Crim 371, granted renewed leave and allowed the appeal only to substitute a correctly structured sentence.
• Single judge — refused leave to appeal against sentence.
• Crown Court at Woolwich — on 10 August 2022, imposed 15 years and six months’ imprisonment with two additional years on licence under section 278 of the Sentencing Code.