*R v Fruenregina v S (D)
| Jurisdiction | England & Wales |
| Neutral Citation | [2016] EWCA Crim 561 |
| Year | 2016 |
| Court | Court of Appeal (Criminal Division) |
Crime - Sentence - Sexual offences - Offences involving penetration - Application of requirement for addition to custodial term of imprisonment of one-year period of licence - Scope for correction on appeal where sentencing court failing to add licence period - Guidance -
The defendant in the first case pleaded guilty to two counts of indecent assault contrary to section 14(1) of the Sexual Offences Act 1956, the first of which engaged section 236A of the Criminal Justice Act 2003F1, as inserted, because it had involved digital penetration of a child complainant and was therefore a specified offence for the purposes of Schedule 18A to that Act, as inserted. He was sentenced to an aggregate of six years’ imprisonment, the judge failing to give consideration to section 236A. The defendant in the second case pleaded guilty to 19 sexual offences, six of which were specified offences for the purposes of Schedule 18A, being two offences contrary to section 6 of the Sexual Offences Act 2003 and four offences of indecent assault contrary to section 14(1) of the 1956 Act which had involved digital penetration of a child complainant. He was sentenced to an aggregate of 14 years’ imprisonment, to which was added a further period of one year subject to a licence in accordance with section 236A of the Criminal Justice Act 2003. The court record ascribed that additional year to the two offences contrary to section 6 of the Sexual Offences Act 2003 but not to the four offences of indecent assault which had involved penetration. Each defendant sought permission to appeal against sentence.
On the applications, and on the question of the extent of the powers of the Court of Appeal (Criminal Division) under section 11(3) of the Criminal Appeal Act 1968F2 where the sentencing court had failed to consider section 236A of the Criminal Justice Act 2003—
Held, refusing the applications, that, where the need had been overlooked to add to a determinate sentence of imprisonment a period of one year subject to a licence in accordance with section 236A of the Criminal Justice Act 2003, as inserted, section 11(3) of the Criminal Appeal Act 1968 precluded interpretation of the sentence as the expression of an appropriate custodial term with an unexpressed further licence period of one year because the sentence would then be greater than that imposed in the Crown Court, nor could the determinate sentence passed be treated as if it incorporated a one-year licence period because it would be wrong to re-engineer what the Crown Court had concluded was an appropriate custodial term; but that, if the Court of Appeal were to conclude that the custodial term imposed was too long and were to reduce it by a period of at least a year, that would enable the court, without infringing section 11(3) of the 1968 Act, properly to substitute the reduced custodial term and to add to it the further one-year period of licence which should have been imposed in the first place; and that the determinate sentences were not manifestly excessive and could not be made more severe by the ordering of the addition of a licence period, or further licence periods, which ought to have been imposed (post, paras 29–30, 39–41, 53, 57–59).
Per curiam. Where consecutive section 236A sentences are imposed, consecutive further periods of licence must follow. The consequence for judges is that they will need to give careful consideration to the structuring of their sentences as decisions as to whether to make sentences concurrent or consecutive will impact upon the length of the further licence period (post, para 24).
General guidance on the application of section 236A of the Criminal Justice Act 2003, as inserted (post, paras 6–30).
The following cases are referred to in the judgment of the court:
R v Bright
R v Francis
R v H (J) (Practice Note)
R v Harries
R v Pinnell
R v Reynolds
The following additional cases were cited in argument:
R v B
R v Bell (Martin)
R v Bradbury
R v Dunn
R (Uttley) v Secretary of State for the Home Department
No additional cases were referred to in the skeleton arguments.
On 8 December 2015 in the Crown Court at Luton before Judge Kay QC, the defendant, Lionel Rae Fruen, pleaded guilty to two counts of indecent assault contrary to section 14(1) of the Sexual Offences Act 1956. On 29 January 2016 in the same court before Judge Bridge he was sentenced to a term of three years four months’ imprisonment on the first count and to a consecutive term of two years eight months’ imprisonment on the second count.
The defendant applied for permission to appeal against sentence on the grounds that the aggregate sentence was manifestly excessive.
On 18 December 2015 in the Crown Court at Liverpool before Judge Morrow QC the defendant, SD, pleaded guilty to 13 counts of indecent assault contrary to section 14(1) of the Sexual Offences Act 1956, two counts of sexual assault of a child under 13 contrary to section 7 of the Sexual Offences Act 2003, two counts of assault of a child under 13 by penetration contrary to section 6 of the Sexual Offences Act 2003, and two counts of causing or inciting a child under 13 to engage in sexual activity contrary to section 8 of the Sexual Offences Act 2003. On 18 January 2016 he was sentenced to a total term of 14 years’ imprisonment, comprising five years’ imprisonment by reference to four concurrent sentences of three years’ imprisonment on three of the offences of indecent assault and one offence of sexual assault of a child under 13 and to three concurrent sentences of five years’ imprisonment on two of the offences of indecent assault and the other offence of sexual assault of a child under 13, and to a consecutive term of nine years’ imprisonment by reference to three concurrent sentences of nine years’ imprisonment on two of the offences of indecent assault and one offence of assault of a child under 13 by penetration, six concurrent sentences of seven years’ imprisonment on four of the offences of indecent assault, the other offence of assault of a child under 13 by penetration and one offence of causing or inciting a child under 13 to engage in sexual activity and three concurrent sentences of six years’ imprisonment on two of the offences of indecent assault and on the other offence of causing or inciting a child under 13 to engage in sexual activity, together with one year on licence in accordance with section 236A of the Criminal Justice Act 2003, as inserted. The court record showed that additional year as applying to each of the two counts of assault of a child under 13 by penetration contrary to section 6 of the Sexual Offences Act 2003.
The defendant applied for permission to appeal against sentence on the grounds that the aggregate sentence was manifestly excessive and offended the principle of totality.
Stefan Weidmann (assigned by the
David Watson (assigned by the
Simon Heptonstall (instructed by
The court took time for consideration.
17 May 2016. TREACY LJ handed down the following judgment of the court.
Introduction1 These cases involve a consideration of section 236A of the Criminal Justice Act 2003 (“CJA 2003”). This section was introduced into the CJA 2003 by section 6 and Schedule 1 of the Criminal Justice and Courts Act 2015 which also inserted section 244A which governs release on licence of prisoners serving a sentence under section 236A. Section 236A introduces a new form of custodial sentence described in the heading as “Special custodial sentence for certain offenders of particular concern”. The section came into force on 13 April 2015. It applies to sentences imposed on or after that date, irrespective of whether the offence was committed before or after the section came into force. The section applies to someone convicted of an offence listed in Schedule 18A to the Act, who was (a) aged 18 or over when the offence was committed and (b) is not sentenced to life imprisonment or an extended sentence under section 226A (as inserted by section 124 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012).
2 Schedule 18A contains four types of offence: (i) Certain terrorism offences; (ii) sexual offences, namely offences under section 5 (rape of a child under 13) or section 6 (assault of child under 13 by penetration) of the Sexual Offences Act 2003 (“SOA 2003”); (iii) inchoate offences; and (iv) abolished offences.
3 Abolished offences are relevant in these appeals and are defined at paragraph 23 of Schedule 18A as:
“An offence that— (a) was abolished before the coming into force of section 236A, and (b) if committed on the day on which the offender was convicted of the offence, would have constituted an offence specified in the preceding paragraphs of this Schedule.”
4 It is common ground that “abolished” means the same thing as repealed. Accordingly, historic sexual offences under the Sexual Offences Act 1956 which are the equivalent of an offence pursuant to section 5 or 6...
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