Successful out of time appeal against unlawful extended sentence

26 October 2015

Garden Court North Chambers’ Nina Grahame appeared in the Court of Appeal last week for the Appellant in R v Bennett (22.10.15 Court of Appeal, Criminal Division), instructed by the Registrar, in a successful appeal against sentence out of time. The Court of Appeal quashed an unlawful extended sentence and reduced custodial terms.

This is a case which illustrates the need for the particular care required when dealing with extended sentences, when considering multiple factors relevant to sentencing in sexual offence cases and where there are dangers of double counting aggravating features.

This application for leave to appeal sentences imposed for offences of Child Sexual Assault (SOA 2003 section 7) and Child Abduction was referred to the Full Court who granted leave to appeal. The Appellant, represented by different counsel at the Crown Court, had been convicted in his absence of the abduction of two 11 year old girls. He had allegedly watched them shoplift and then, posing as a security guard, promised them that he would destroy photographic evidence of their actions if they accompanied him to an isolated location. There he fondled and spoke lewdly to them before they ran away. The Appellant was sentenced to concurrent extended sentences for sexual assault and child abduction counts relating to each of the two girls. In each case the custodial period imposed was 5 years with an extended licence of 4 years.

No issue was taken with the assessment of dangerousness in this case.

The Court of Appeal accepted:

• That an extended sentence could not be imposed for the child abduction counts, which are not “specified  offences”. Further, the overall term of the sentences unlawfully exceeded the maximum sentence for the offence (7 years).
• That the Sentencing Council Guidelines feature “abduction” as a potential aggravating feature  in more than one calculation. In addition to the danger of double counting, the Court accepted Counsel’s submissions that the fact of an abduction cannot, of itself,  elevate the “harm” assessment into a Category 1 offence. In this case, the circumstances of the abduction were in no way similar to the degree of harm reflected in the other 3 features characteristic of Category 1. The sexual assaults did not represent Category 1 harm.
• In all the circumstances, the custodial periods of the lawful extended sentences for the sexual assault counts were reduced to 4 years and the replacement determinate sentences for the child abduction counts similarly fixed at this lower figure.