Substitution of Determinate Sentences Under Section 11(3) Criminal Appeal Act 1968: Analysis of R v ES [2024] EWCA Crim 753

Introduction

The case of R v ES [2024] EWCA Crim 753 presents a pivotal examination of the interplay between special custodial sentences and determinate sentences under the framework of section 11(3) of the Criminal Appeal Act 1968. This appeal centers on whether substituting determinate sentences for improperly imposed special custodial sentences results in the appellant being dealt with more severely, considering the differing provisions for early release.

The appellant, ES, was convicted of two serious sexual offences against his step-granddaughter, leading to the imposition of special custodial sentences. The appeal challenges the imposition of these special sentences, arguing that they were not warranted under the relevant statutory provisions. The Court of Appeal's judgment delves into the nuances of sentencing law, particularly focusing on the statutory requirements and the implications of different early release mechanisms.

Summary of the Judgment

The Court of Appeal quashed the special custodial sentences originally imposed on ES for two counts: rape under section 1 and assault by penetration under section 2 of the Sexual Offences Act 2003. These sentences were deemed improperly applied as the offences committed did not fall under the specified categories in Schedule 13 of the Sentencing Act 2020 that necessitate special custodial sentences.

In substituting the sentences, the Court imposed determinate sentences of 10 years for the rape offence and 2 years for the assault offence, to be served consecutively, totaling 12 years of imprisonment. The Court concluded that this substitution does not result in ES being dealt with more severely, despite the differing early release provisions between special custodial and determinate sentences.

Analysis

Precedents Cited

The judgment references several key cases that shape the Court's reasoning:

R v Thompson (Christopher) [2018] EWCA Crim 639: Emphasized a detailed consideration of the impact of substituted sentences, including factors like entitlement to automatic release and parole eligibility.
R v KPR [2018] EWCA Crim 2537: Highlighted that substituting special custodial sentences for determinate sentences does not inherently result in more severe treatment.
R v A [2020] EWCA Crim 948: Reinforced the multifactorial assessment approach, considering various aspects such as parole eligibility and licence periods.
R v AB [2021] EWCA Crim 692: Provided clarity on the operation of section 244ZA regarding early release provisions.

These precedents collectively support the Court's stance that substituting sentences must consider the overall treatment of the appellant, ensuring that they are not subjected to more severe consequences than initially imposed.

Legal Reasoning

The Court's legal reasoning centers on interpreting section 11(3) of the Criminal Appeal Act 1968, which mandates that on appeal against sentence, the Court must ensure that the appellant is not dealt with more severely overall than by the original sentencing court.

A critical aspect of this interpretation involves the differing early release provisions between special custodial sentences and determinate sentences. Special custodial sentences allow for the possibility of parole after serving half the custodial period, subject to the Parole Board's discretion. Conversely, determinate sentences have fixed early release points based on statutory provisions.

The appellant argued that substituting determinate sentences with equivalent custodial elements could potentially extend his time in custody due to these differing release mechanisms. However, the Court reasoned that when evaluating the totality of the case, the substitution does not result in a more severe treatment. This is because the overall conditions, including licence periods and the possibility of recall, balance the sentences.

The Court also differentiated the present case from previous cases like KPR and A, where the substitution of sentences functioned differently regarding automatic release and parole eligibility. In this case, substituting the sentences did not lead to an increased severity as per the overarching framework established by section 11(3).

Impact

The judgment in R v ES has significant implications for future sentencing appeals, particularly in cases involving the substitution of special custodial sentences with determinate sentences. It clarifies that such substitutions, even with varying early release provisions, do not inherently contravene section 11(3) as long as the overall treatment of the appellant is not more severe.

This decision reinforces the necessity for courts to undertake a holistic assessment of the appellant's treatment when substituting sentences. It ensures that sentencing remains fair and consistent, preventing inadvertent increases in severity through technical adjustments in sentence types.

Additionally, this judgment provides jurisprudential clarity on the application of early release provisions, guiding lower courts and appellate courts in their sentencing decisions and appeals. It underscores the balance between statutory sentence lengths and the practicalities of early release mechanisms.

Complex Concepts Simplified

Section 11(3) of the Criminal Appeal Act 1968

This legal provision ensures that when an appellate court modifies a sentence, it must do so in a way that the offender is not treated more harshly than in the original sentencing. It mandates a comprehensive review of the case to maintain consistency and fairness in sentencing.

Special Custodial Sentences vs. Determinate Sentences

Special Custodial Sentences: These are longer sentences with specific provisions for parole, allowing the offender to be considered for early release after serving half of the custodial period. However, release is not automatic and depends on the Parole Board's decision.

Determinate Sentences: These have fixed terms with clearly defined early release points based on statutory guidelines. For instance, an offender may be automatically released after serving two-thirds of a sentence of seven years or more.

Early Release Provisions

Early release provisions dictate whether and when an offender can be released from custody before completing their full sentence. These provisions vary between sentence types, impacting the actual time an offender serves.

Licence Period

After release, an offender may be subject to a licence period, during which they must comply with certain conditions. Breaching these conditions can result in recall to prison. The length and conditions of the licence period differ based on the type of sentence imposed.

Conclusion

The Court of Appeal's decision in R v ES [2024] EWCA Crim 753 reaffirms the principles governing sentence substitution under section 11(3) of the Criminal Appeal Act 1968. By meticulously assessing the overall treatment of the appellant, the Court demonstrated that substituting determinate sentences for improper special custodial sentences does not constitute a more severe dealing, even amidst differing early release frameworks.

This judgment serves as a critical reference point for future sentencing appeals, ensuring that legal practitioners and courts maintain a balanced and fair approach when addressing sentence modifications. It underscores the importance of holistic case evaluations in upholding justice and mitigating inadvertent sentencing disparities.