R v Lucas Ndhlovu

A sentence is the sentence pronounced in open court. An administratively recorded sentence is not valid. Where more than one count is involved, the sentence on each count should be pronounced in court, even where the terms are concurrent. The Court of Appeal may confirm the individual sentences where the intended sentence is clear. A lawful sentence that is not manifestly excessive will not otherwise be disturbed. An extension of time and renewed leave to appeal against conviction will be refused where no arguable ground is shown.

The appellant was convicted at the Crown Court at Leeds of two counts of rape contrary to section 1(1) of the Sexual Offences Act 2003. He was acquitted of other sexual offences and sentenced to five years’ imprisonment.

He renewed applications for an extension of time and leave to appeal against conviction, relying on various grounds and fresh evidence from a former girlfriend. He also appealed against sentence. The sentencing issues were that individual sentences had not been pronounced for each count and that a victim surcharge had been recorded administratively rather than imposed in open court.

The Court refused the extension of time and renewed application for leave to appeal against conviction. The complaints concerning translation, the consent video and fresh evidence did not disclose any arguable ground, and the court endorsed the single judge’s conclusions.

1. Individual sentences. The court addressed the failure to pronounce the sentence on each count. It referred to R v Whitwell [2018] EWCA Crim 2301, [2019] 1 Cr.App.R (S) 19, where the same problem had been remedied by the Court of Appeal announcing the sentence for each count. The court confirmed that the sentence for each rape count was five years’ imprisonment, concurrent with the other, producing an overall term of five years.
2. Administrative recording. A sentence or order recorded administratively, rather than pronounced during sentencing remarks in open court, is not valid. The victim surcharge of £170 had not been pronounced and was therefore quashed.
3. Remaining sentence grounds. The court reviewed the materials for other errors, unlawfulness or manifest excess. It found none and identified no further basis for interference.

The conviction appeal was refused, the five-year concurrent custodial sentence was confirmed, and the victim surcharge order was quashed.

• Court of Appeal (Criminal Division) — In [2024] EWCA Crim 231, the extension of time and renewed leave to appeal against conviction were refused. The sentence of five years’ imprisonment on each count, concurrent, was confirmed, and the victim surcharge was quashed.
• Crown Court at Leeds — The appellant was convicted on 10 December 2021 and sentenced on 11 February 2022 to five years’ imprisonment.