R v Luke Smith

An extended sentence must be attached to specified offence or offences and stated terms. It cannot be imposed globally on a custodial total comprising a mixture of consecutive and concurrent sentences. The error may be corrected by restructuring the sentences so that the extended sentence applies to an identified count, while preserving the intended overall custodial term and licence period.

A victim surcharge must be imposed by the sentencing judge. A surcharge added administratively by the Crown Court is unlawful and must be removed.

The appellant pleaded guilty in the Crown Court at Portsmouth to offences of intentionally encouraging or assisting grave sexual offences against children, together with causing or inciting a child to engage in sexual activity and making indecent photographs of children. He received an extended sentence comprising 20 years’ custody and a five-year extended licence period.

He sought leave, out of time, to appeal on grounds that the sentence was manifestly excessive and that insufficient weight had been given to mitigation, his guilty pleas, and evidence of progress. The Single Judge granted limited leave concerning technical sentencing errors. The central issues were whether the substantive challenge was arguable and whether the sentence and victim surcharge had been lawfully imposed.

1. Outcome. Time was extended and the appeal was allowed to the limited extent required to correct two technical errors. Permission to appeal against the substantive sentence was refused.
2. The judge had been entitled to find the appellant dangerous. The pre-sentence material, psychiatric and psychological reports, and the seriousness of the offending supported the conclusion that he continued to present a significant risk of causing serious harm. The complaints of excessive sentence, inadequate mitigation, insufficient credit for guilty pleas, and reliance on the pre-sentence material were unarguable.
3. The extended sentence had been incorrectly applied to the overall custodial total, which included both consecutive and concurrent sentences. Consistently with R v Francis [2014] EWCA Crim 631 and R v DJ [2015] EWCA Crim 563, the court restructured the sentence. Count 3 became a 14-year extended sentence, comprising nine years’ custody and five years’ extended licence; the sentences on counts 6 and 12 remained consecutive. The other sentences remained concurrent. The resulting total remained 20 years’ custody and five years’ extended licence.
4. No victim surcharge had been ordered by the judge. Its administrative addition by the Crown Court was unlawful under the principle applied in R v Jones [2018] EWCA Crim 2094. The Crown Court record was directed to be corrected by removing it.

• Court of Appeal (Criminal Division) — in [2025] EWCA Crim 584, refused permission to challenge the substantive sentence but allowed the appeal to correct the extended-sentence structure and remove the unlawfully added victim surcharge.
• Crown Court at Portsmouth — on 31 August 2022, imposed an extended sentence comprising 20 years’ custody and a five-year extended licence period.