Key Facts
- •Appellant convicted of rape and assault by penetration of his 15-year-old step-granddaughter.
- •Initially sentenced to two special custodial sentences (11 years and 3 years consecutive).
- •Appeal against sentence focused on the improper imposition of special custodial sentences.
- •The key issue was the application of section 11(3) of the Criminal Appeal Act 1968 regarding the substitution of sentences and differing early release provisions.
- •Special custodial sentences have different early release provisions than determinate sentences.
Legal Principles
Section 11(3) of the Criminal Appeal Act 1968 requires that, when substituting a sentence, the appellant is not dealt with more severely on appeal than below.
Criminal Appeal Act 1968, section 11(3)
Early release provisions are generally not relevant when deciding the length of a determinate sentence, except when substituting a sentence under section 11(3) or in retrial cases.
R v Patel [2021] EWCA Crim 231, R v Round [2009] EWCA Crim 2667, R v Burinskas [2014] EWCA Crim 334, Schedule 2 to the Criminal Appeal Act 1968
When substituting a sentence, the court must consider the potential impact on the offender, including automatic release, parole eligibility, and licence.
R v Thompson [2018] EWCA Crim 639
In substituting a determinate sentence for a special custodial sentence, the date of unconditional release is particularly important.
R v Thompson [2018] EWCA Crim 639
Outcomes
The special custodial sentences were quashed.
Section 278 of the Sentencing Act 2020, which governs special custodial sentences, did not apply to the appellant's offences.
Determinate sentences of 10 years and 2 years (consecutive) were substituted.
This substitution did not result in more severe treatment of the appellant under section 11(3) of the Criminal Appeal Act 1968, considering the differences in early release provisions and the overall impact of the sentences.