ES v R

When replacing an unlawful special custodial sentence with a determinate sentence, the court must apply the whole-case safeguard in section 11(3) of the Criminal Appeal Act 1968. It must assess automatic release, parole eligibility, licence and recall consequences. The date of unconditional release is particularly important. The replacement term need not secure automatic release on the earlier date when release under the special custodial sentence might have been directed by the Parole Board. The court should not predict the Parole Board’s decision. A special custodial sentence under section 278 of the Sentencing Act 2020 may be imposed only for an offence within Schedule 13.

The appellant was convicted at the Crown Court at Minshull Street, Manchester, of rape and assault by penetration of his 15-year-old step-granddaughter. He received consecutive special custodial sentences of 11 years and three years, comprising custodial elements of 10 years and two years respectively, with an additional one-year licence period for each count.

After the probation service identified a possible sentencing error, the appellant sought an extension of time and permission to appeal. The parties accepted that section 278 of the Sentencing Act 2020 did not apply to the offences of conviction. The central issue was whether substituting determinate terms equal to the custodial elements would deal with the appellant more severely because their automatic-release provisions differed.

1. The court granted an extension of time and leave to appeal. It allowed the appeal because the special custodial sentences were unlawful.

2. Section 278 of the Sentencing Act 2020 applies only to offences listed in Schedule 13. Rape contrary to section 1, and assault by penetration contrary to section 2, of the Sexual Offences Act 2003 were not listed offences. The sentencing court therefore had no basis to impose special custodial sentences.

3. Under section 11(3) of the Criminal Appeal Act 1968, a substituted sentence must be assessed by taking the case as a whole. Although early-release provisions ordinarily do not determine the length of a determinate sentence, they are relevant when the Court of Appeal substitutes a different type of sentence. Following R v Thompson (Christopher) [2018] EWCA Crim 639, the assessment requires detailed consideration of automatic release, parole eligibility and licence consequences. The date on which release becomes unconditional has particular importance.

4. The court rejected the argument that the substituted determinate sentences had to permit automatic release when the appellant might have been released if the Parole Board directed it. The possibility of parole after six years under the unlawful sentences was contingent. It was neither necessary nor appropriate to predict whether the Parole Board would direct release. A determinate total of 12 years instead provided automatic release after seven years and eight months, followed by four years and four months on licence. Taking the case as a whole, that did not deal with the appellant more severely.

5. The court quashed both special custodial sentences. It substituted 10 years’ imprisonment for rape and two years’ imprisonment for assault by penetration, consecutive, making a total of 12 years’ imprisonment.

• Court of Appeal (Criminal Division) — Granted an extension of time and leave to appeal, allowed the sentence appeal, and substituted determinate terms totalling 12 years’ imprisonment.

• Crown Court at Minshull Street, Manchester — On 16 November 2021, imposed consecutive special custodial sentences of 11 years and three years for rape and assault by penetration.