R v Rupert Earl-Ocran

An extended sentence founded on dangerousness may be imposed only for a specified offence. A court cannot attach it to an unlisted offence merely because another concurrent offence is specified in Sentencing Act 2020, Schedule 18.

On a sentence appeal, the appellate court reviews rather than reweighs the sentencing judge’s assessment. It may quash and substitute sentences to correct a legal error, provided that the offender is not more severely dealt with under section 11(3) of the Criminal Appeal Act 1968.

The appellant fired three shots from a converted handgun from the balcony of his flat. He pleaded guilty to possessing a prohibited firearm and to possessing a firearm with intent to cause fear of violence.

At the Crown Court at Woolwich, he received an eight-year extended sentence, comprising six years’ custody and a two-year extension period, on the prohibited-firearm count. He also received a concurrent five-year sentence on the other count. He appealed against the finding of dangerousness and the custodial term.

The Registrar identified a further issue: whether the extended sentence had been imposed on an offence to which the dangerousness regime applied.

1. The appeal was allowed to a limited extent. The court rejected the appellant’s challenges to dangerousness and to the six-year custodial term, but quashed the sentences and substituted lawful sentences.

2. The sentencing judge was entitled to find the appellant dangerous. He had kept a loaded firearm for two months and had fired it in the general direction of two people. His previous offending, cannabis misuse and personality disorder supported the assessment of a significant future risk to the public.

3. The six-year custodial term was not manifestly excessive. Sentencing involves a judgment about aggravating and mitigating factors. An appellate court does not substitute its own view unless the judge identified irrelevant or omitted relevant factors, or reached a conclusion not properly open on the evidence. The previous convictions justified an increase from the starting point, while the mitigation warranted only a limited reduction.

4. The original extended sentence was nevertheless unlawful. Under the Sentencing Act 2020, the dangerousness provisions apply only to specified offences. Possession of a firearm with intent to cause fear of violence was specified in Schedule 18, but simple possession of a prohibited firearm was not. The extended sentence could therefore not be imposed on the latter count.

5. Applying section 11(3) of the Criminal Appeal Act 1968, the court could resentence without dealing with the appellant more severely. It substituted five years’ imprisonment for the prohibited-firearm count and an eight-year extended sentence, comprising six years’ custody and a two-year extension, for the specified offence. The periods to be served in custody and on licence were unchanged.

• Court of Appeal (Criminal Division) — in [2024] EWCA Crim 1031, allowed the appeal only to correct the unlawful allocation of the extended sentence and substituted lawful sentences.
• Crown Court at Woolwich — on 8 September 2023, imposed an eight-year extended sentence on the prohibited-firearm count and a concurrent five-year determinate sentence on the count of possessing a firearm with intent to cause fear of violence.