ES, R. v

Factual and Procedural Background

On 16 November 2021, at the Crown Court in The City, the Appellant was sentenced following conviction for two sexual offences committed against his step-granddaughter, who was 15 years old at the time. The offences were rape contrary to section 1 of the Sexual Offences Act 2003 and assault by penetration contrary to section 2 of the same Act. The Appellant received two special custodial sentences: 11 years for the rape (10 years custody plus 1 year additional licence) and 3 years for assault by penetration (2 years custody plus 1 year additional licence), to be served consecutively. The Appellant sought to appeal solely against the imposition of the special custodial sentences and the additional licence periods, arguing that the statutory provisions did not require such sentences for the offences committed. This issue was identified post-sentencing by the probation service. The Appellant was granted an extension of time and leave to appeal. The Court held an oral hearing and invited further written submissions regarding the application of section 11(3) of the Criminal Appeal Act 1968 in light of differing early release provisions between special custodial sentences and determinate sentences.

Legal Issues Presented

1. Whether the special custodial sentences imposed under section 278 of the Sentencing Act 2020 were lawful given the offences committed were not listed under Schedule 13 of that Act.
2. How section 11(3) of the Criminal Appeal Act 1968 should be applied when substituting determinate sentences for special custodial sentences, particularly considering the differing early release provisions applicable to each type of sentence.
3. Whether substituting determinate sentences of equivalent custodial length to the special custodial sentences would result in the Appellant being more severely dealt with on appeal contrary to section 11(3).

Arguments of the Parties

Appellant's Arguments

• The Court must adopt a multi-factorial approach when substituting sentences, considering all features of the case to ensure the Appellant is not more severely dealt with overall.
• The Appellant would have been eligible for release on licence after serving half of the custodial element (6 years) under the special custodial sentences if the Parole Board so directed.
• Under determinate sentences of equivalent custodial length, the Appellant would be automatically released after serving 7 years and 8 months, potentially resulting in a longer period in custody.
• Substituting determinate sentences of equal custodial length would violate section 11(3) because it would be more severe due to the later automatic release date.
• The only way to comply with section 11(3) is to impose determinate sentences allowing automatic release at a time equivalent to parole eligibility under the special custodial sentences.
• Case law indicates a shift towards considering the date of eligibility for release rather than the actual release date.
• The Appellant's personal circumstances suggest a higher likelihood of parole being granted, which should be factored into the assessment.

Respondent's Arguments

• A determinate sentence substituting a special custodial sentence should reflect the seriousness of the offence, relevant guidelines, and the unlawfully imposed sentence, ensuring the Appellant is not more severely dealt with.
• Case law shows that when substituting a determinate sentence for a special custodial sentence (the converse situation), the possibility of serving longer due to parole refusal does not violate section 11(3).
• Similarly, substituting a determinate sentence equivalent to the custodial element of the special custodial sentence does not infringe section 11(3) despite differing early release provisions.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v A B [2021] EWCA Crim 692, [2022] 1 Cr. App. Rep. (S.) 13	Operation of early release provisions under section 244ZA of the Criminal Justice Act 2003 for determinate sentences.	Used to explain differing early release regimes between special custodial and determinate sentences.
R v KPR [2018] EWCA Crim 2537, [2019] 1 Cr. App. R. (S) 36	Consideration of release eligibility dates and multifactorial assessment in sentencing following retrial.	Referenced to illustrate the shift in focus towards eligibility for release and multifactorial assessment under section 11(3).
R v A [2020] EWCA Crim 948	Shift in emphasis to date of eligibility for release in sentencing substitution cases.	Supported the argument about considering release eligibility rather than actual release dates.
R v Patel [2021] EWCA Crim 231, [2021] 2 Cr. App. Rep. (S.) 383	General principle that early release provisions are not relevant to determinate sentence length decisions.	Confirmed the general rule and exceptions, including application of section 11(3).
R v Round [2009] EWCA Crim 2667, [2029] 2 Cr. App. R. (S.) 292	General sentencing principles related to early release and sentencing severity.	Supported the principle that early release provisions generally do not affect sentence length.
R v Burinskas [2014] EWCA Crim 334, [2014] 2 Cr. Ap. R. (S.) 45	Similar general principles on sentencing and early release provisions.	Used to reinforce the general rule on sentencing and early release.
R v Thompson (Christopher) [2018] EWCA Crim 639, [2018] 1 WLR 4429	Application of section 11(3) requiring that the appellant is not more severely dealt with on appeal, considering parole eligibility and licence periods.	Central authority guiding the Court's multifactorial assessment of sentence severity and release eligibility.

Court's Reasoning and Analysis

The Court began by affirming that section 278 of the Sentencing Act 2020 did not apply to the offences committed because the victim was over 13 years old, and thus special custodial sentences were improperly imposed. The appropriate remedy was to substitute determinate sentences.

Section 11(3) of the Criminal Appeal Act 1968 requires that the Court, when substituting a sentence on appeal, ensures that the appellant is not more severely dealt with, considering the case as a whole. This includes consideration of parole eligibility, licence periods, and the overall punitive effect.

The Court acknowledged the differing early release provisions: special custodial sentences allow eligibility for parole after serving half the custodial element, whereas determinate sentences provide for automatic release after two-thirds (for sentences of 7 years or more) or half (for shorter sentences) of the sentence served.

The Appellant argued that substituting determinate sentences of equivalent custodial length would result in a later automatic release date (7 years 8 months) compared to parole eligibility after 6 years under the special custodial sentences, potentially making the substituted sentence more severe.

The Court rejected this argument, emphasizing that the date of unconditional release is a key factor. Under determinate sentences, the Appellant would be released unconditionally after 7 years 8 months in custody, whereas under special custodial sentences, unconditional release would only occur after 12 years (the full custodial element). The possibility of earlier parole release under special custodial sentences does not guarantee release and is subject to the Parole Board's discretion.

The Court relied on established case law, including R v Thompson, which requires a detailed multifactorial assessment but does not mandate adjusting determinate sentences to mirror parole eligibility dates under special custodial sentences. The Court also noted that predicting the likelihood of parole release is neither necessary nor appropriate in this context.

Consequently, the Court concluded that substituting determinate sentences equivalent in custodial length to the special custodial sentences does not result in the Appellant being more severely dealt with on appeal within the meaning of section 11(3).

Holding and Implications

DISPOSED OF

The Court quashed the special custodial sentences imposed on both counts and substituted determinate sentences of 10 years' imprisonment for count one (rape) and 2 years' imprisonment for count two (assault by penetration), to be served consecutively, resulting in a total custodial sentence of 12 years. This substitution complies with section 11(3) of the Criminal Appeal Act 1968, ensuring the Appellant is not more severely dealt with on appeal.

The direct effect is the correction of the unlawfully imposed special custodial sentences to determinate sentences of appropriate length. No broader precedent was established beyond reaffirming the application of section 11(3) in cases involving substitution of sentences with differing early release regimes.