Correct Application of Section 236A in Sentencing: Precedent Established in Durkin v EWCA Crim 1866

Introduction

The case of Durkin v ([2021] EWCA Crim 1866) before the England and Wales Court of Appeal (Criminal Division) addresses significant issues regarding the proper application of sentencing guidelines under Section 236A of the Criminal Justice Act 2003. Mr. John Andrew Durkin, convicted of multiple counts of indecent assault under the Sexual Offences Act 1956, appealed against his conviction and, more pertinently, against his sentence. This commentary explores the Court of Appeal's comprehensive analysis of both procedural and substantive aspects of sentencing, ultimately establishing crucial precedents for future cases involving complex sentencing structures.

Summary of the Judgment

Mr. Durkin was convicted of 18 counts of indecent assault involving historical offences from the late 1980s to the early 1990s. He was sentenced to 16 years' imprisonment, designated as an offender of particular concern, alongside a year's extended licence and a victim surcharge. The primary issue on appeal was the improper structuring of his sentence under Section 236A, which deals with sentencing for multiple offences of sexual nature. The Court of Appeal identified errors in the consecutive sentencing of offences qualifying under Section 236A and rectified the sentence to ensure compliance with legal standards, thereby reducing the total custodial term from 16 to 14 years.

Analysis

Precedents Cited

The judgment extensively references several key precedents that influenced the Court's decision:

Canavan [1998] 1 WLR 604: This case outlines the principles for handling multiple offences in a single count, emphasizing that counts should reflect distinct incidents unless multiple incidents are permissible under specific rules.
LF [2016] 2 Crim App R (S) 30: Established that sentences under Section 236A must be indivisible, meaning each qualifying offence should have its own sentence structure. Concurrent sentences must not collectively exceed statutory maximums.
Orr [2016] EWCA Crim 889: While referenced, the Court clarified that Orr's context was not directly applicable to Mr. Durkin's situation, reinforcing the need for case-specific analysis.

These precedents collectively inform the Court's approach to ensuring sentences are both lawful and proportionate, particularly when dealing with complex offence structures.

Legal Reasoning

The Court identified that the trial judge erred in structuring Mr. Durkin's sentence under Section 236A by:

Imposing sentences for separate sets of offences that qualified under Section 236A consecutively, thereby aggregating the custodial term beyond the maximum permissible limit.
Applying a single extended licence period to multiple Section 236A sentences instead of allocating individual licences per qualifying offence.

According to Section 236A(4) of the Criminal Justice Act 2003, the total custodial term and extension period must not exceed the maximum sentence for the offence. The Court rectified this by restructuring the sentence to assign appropriate determinate sentences for offences not qualifying under Section 236A and applying individual Section 236A sentences correctly. This ensured that the cumulative sentence adhered to legislative limits and upheld the principles of just and proportionate sentencing.

Impact

The Court of Appeal's decision in Durkin v EWCA Crim 1866 has significant implications for future sentencing practice, particularly concerning:

Application of Section 236A: Clarifies the necessity for indivisible sentencing under Section 236A, preventing the aggregation of sentences that could exceed statutory maximums.
Consecutive vs. Concurrent Sentencing: Sets a clear precedent that while consecutive sentences may be applied, they must align with legal boundaries to avoid unlawfully prolonged custodial terms.
Extended Licence Periods: Reinforces that extended licence periods should be individually assigned per qualifying offence, ensuring that they do not collectively extend beyond permissible limits.

This judgment serves as a critical reference point for judges and legal practitioners in structuring sentences for offenders with multiple qualifying offences, ensuring legal compliance and fairness.

Complex Concepts Simplified

Understanding the nuances of this judgment requires clarification of several legal concepts:

Section 236A: Part of the Criminal Justice Act 2003, Section 236A pertains to sentencing for multiple sexual offences, particularly those involving children. It mandates specific structures for custodial sentences and extended licence periods to ensure that the cumulative penalty adheres to legal limits.
Indivisible Sentences: Under Section 236A, sentences for qualifying offences must be indivisible, meaning each offence is treated separately within the overall sentence structure to maintain proportionality and legality.
Victim Surcharge: A financial penalty imposed on offenders to provide funds for victims of crime. In this case, the appellant's offence predates the implementation of the victim surcharge, leading to its quashing.
Custodial Term vs. Extended Licence: The custodial term refers to the actual time served in prison, while the extended licence is a period post-release where the offender must comply with certain conditions. Proper allocation of these terms is crucial to lawful sentencing.

Conclusion

The judgment in Durkin v EWCA Crim 1866 underscores the judiciary's commitment to precise and lawful sentencing practices, especially in complex cases involving multiple offences under Section 236A. By rectifying the initial sentencing errors, the Court of Appeal not only ensured justice for Mr. Durkin but also reinforced essential legal principles that safeguard against unlawful sentencing extremes. This case serves as a pivotal reference for future cases, promoting consistency, proportionality, and adherence to legislative frameworks in the British criminal justice system.