England and Wales Court of Appeal (Criminal Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Crown Court Cardiff
HHJ Hopkins QC
T20107113/T20097455
And
FROM Crown Court Manchester
HH J Henshell
S20100346

		201003959 A4 Royal Courts of Justice Strand, London, WC2A 2LL
		07/12/2010

Mr Justice Cranston :

Introduction

1. The Registrar has referred both of these applications for leave to appeal against sentence to the full court and directed that they should be listed together. The applications concern unlawful sentences. Both applications highlight the question, albeit in slightly different circumstances, as to whether extended sentences can be aggregated. It is clear from the authorities that aggregation is permitted, in fact is desirable, when imposing imprisonment for public protection for more than one offence. However, there is no express authority as to whether the same principle applies to extended sentences. The Registrar has asked us for guidance.

R v Pinnell

2. The extended sentences at issue in this case were passed after the applicant pleaded guilty to two counts of inflicting grievous bodily harm (count 2 on both indictments) and one count of assault occasioning actual bodily harm (count 4 of the second indictment) in the Crown Court at Cardiff. On 20^th May 2010 HHJ Hopkins QC sentenced him as follows:

Indictment 1

Count 2: 3 ½ years' extended sentence comprising 2 years' custody and 18 months' extension.

Indictment 2

Count 2: 3 ½ years' extended sentence comprising 2 years' custody and 18 months' extension consecutive to the sentence on indictment 1.

Count 4: 8 months' imprisonment concurrent.

Thus the total sentence was 7 years' extended sentence comprising 4 years' custody and 3 years' extension. Ninety-nine days spent on qualifying curfew were taken into account when passing these sentences pursuant to section 240A Criminal Justice Act 2003. No pleas were taken in relation to two counts of causing grievous bodily harm with intent, count 1 on both indictments, since these were alternatives to the second counts. One further count of assault occasioning actual bodily harm (count 3 of Indictment 2) was ordered to lie on file.

3. The background to the offending reflected in the counts on the first indictment was that on the evening of 6^h October 2007 the complainant, Stephen Ryan, visited The New Penn public house, Llanederyn, Cardiff. He witnessed a fight between a person and a group of males. He intervened and managed to break up the fight. The applicant was part of the group of males. He approached the complainant and said: "Don't you know who I am? I'm Paul Pinnell". A friend, Rodney Williams, approached them and tried to calm the applicant. The applicant ignored this and advanced towards the complainant. The complainant grabbed hold of him in order to defend himself. The applicant's group joined in the attack and the complainant suffered pain to his right eye. The complainant was on the floor and his jacket was pulled off him. He managed to run away from the group with Williams' help. Williams went back to retrieve the complainant's jacket only to return and tell him to run. The complainant tried to run but was kicked in his ankles. He fell over and was kicked and stamped upon. He thought he heard the applicant's voice. He was being choked and as he was drifting in and out of consciousness he said: "Are you trying to kill me?" The person replied: "What do you think I'm trying to do?". A vehicle approached and as a result the group ran off. The complainant was taken to hospital. He suffered a perforated ear drum, a swollen left eye and a broken nose. The police attended the hospital and described his head as being swollen like a watermelon.
4. The facts behind the second indictment occurred in late 2008. On Christmas Eve Simon Cummings (count 2) was in The Three Brewers public house, Cardiff. He was accompanied by his brother and another group which included Craig Greenland (count 4). Greenland suffered from cerebral palsy and used a zimmer frame to walk. At about 11.30pm Greenland was with a male named Ed Davies. The applicant deliberately hit Davies with his shoulder. An argument occurred between them. Greenland said to the applicant: "Come on mate, leave it alone." In response the applicant punched him in the face, splitting his lip. The applicant then threw a chair against the wall which sparked further violence within the public house. A considerable amount of fighting ensued. Once outside, the applicant punched Cummings to the face without any provocation. Cummings fell to the floor and in the process hit his head on a bench. He appeared to be unconscious. Cummings suffered a skull fracture and multiple areas of bleeding and bruising within the brain. These events took place when the applicant was on police bail for the 6^th October 2007 incident.
5. When the judge came to sentence the applicant he had before him someone in their late twenties with 14 appearances before the courts during the previous decade. Most of these were for driving offences. There was one previous conviction for assault occasioning actual bodily harm. There were no other previous convictions for offences of violence. The applicant had experienced a range of sentencing options from a conditional discharge to fines, community based penalties and immediate detention, the longest period being 4 months in 2000.
6. The pre-sentence report recorded that the applicant accepted full responsibility for the offences and appeared genuinely remorseful and ashamed. Alcohol appeared to be a contributing factor to his violent behaviour and he was aware that he would need to address that issue if the risk of harm and re-offending were to reduce in the future. The report writer opined that he posed a high risk of harm and a medium risk of re-offending. Of offenders of a similar age, gender and criminal history and with similar social, and personal risk factors, about four in ten were known to re-offend violently, and six in ten non-violently, within 2 years of conviction. However, if the applicant addressed his offending behaviour these risks were likely to reduce in the long-term.
7. In passing sentence the judge said that, at no time during the course of the investigation of matters on the first indictment had the applicant shown any remorse. His mindless violence was truly sickening. The incident was started by him for no reason whatsoever. His violence then encouraged others to join. The offending involved two separate attacks on the complainant. In the second he strangled the complainant close to unconsciousness. The attack involved kicking a defenceless man as he lay, in the first incident, or crawled, in the second, on the ground. As a result of the complainant's injuries the complainant was unable to work and lost about £8,000 in earnings. He was still awaiting treatment for nasal breathing difficulties and had suffered psychologically.
8. A victim of the attack represented by the second indictment, Mr Cummings, had also suffered. He had dizziness and an inability to focus, which left him unable to read, and lethargic. He was incapable of driving until June 2009. Again, there was not the slightest hint of remorse. This was totally unprovoked, gratuitous violence. There were two separate complainants. The assault occasioning actual bodily harm was upon a disabled man and the offences were committed whilst on bail. The applicant was a "mindless thug". The public needed protection from him. Each of the offences was a serious violent offence pursuant to Schedule 15 of the Criminal Justice Act 2003 and there was a significant risk of serious harm from future specified offences committed by him. He was thus dangerous within the terms of that legislation. The judge then passed the sentences indicated earlier.

R v Joyce

9. On 24 June 2010 at the Crown Court at Manchester HHJ Henshell sentenced the applicant to an extended sentence of 5 years, comprising a custodial term of 4 years' imprisonment and an extension period of 12 months. Earlier that month the applicant had pleaded guilty at the Manchester City Magistrates' Court to assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861 (offence 1), theft, contrary to sections 1(1) and 7 of the Theft Act 1968 (offence 2) and possession of an offensive weapon, contrary to section 1(1) of the Prevention of Crime Act 1953 (offence 3). The offences were committed to the Crown Court for sentencing pursuant to section 3 of the Powers of the Criminal Courts (Sentencing) Act 2000.
10. The facts behind the offending in this case were as follows. On 7 April 2010 this 24 year old applicant entered a Tesco store in Burnage, Manchester. He had with him his young daughter in a pushchair. A CCTV operator in the store, Tracey Martin, saw him in the vicinity of the baby supplies and cosmetics selecting various items. Her suspicions were aroused by a single man in the cosmetics section. She saw him take a number of items, including baby wipes and make up, and leave the store without any attempt to pay. Ms Martin and the store security guard, Mr Hassan, followed the applicant into the car park. Ms Martin shouted at the applicant to return the goods. He responded by swearing at her. She continued to follow him and eventually approached him. He produced a large claw hammer, approximately one foot long, and swung it at her from side to side. He advanced towards her and she turned her back in fear. He struck her on the back several times. Mr Hassan intervened and tried to stop the applicant.
11. The applicant attempted to escape, dragging the pushchair behind him. The pushchair toppled over with the applicant's daughter inside. The applicant continued walking away and so Ms Martin picked up the pushchair and walked toward the applicant. The applicant again advanced towards her swinging the hammer telling her: "Leave my baby alone." The applicant began pulling various items, worth a total of £116.00, from his pockets and threw them at Ms Martin. He took the pushchair and walked away. The applicant was identified from the CCTV footage and later arrested. In interview he fully admitted the theft and accepted having possession of the hammer. His account was that he had confiscated the hammer from a group of youths earlier in the day and did not have it with him with the intention of using it as a weapon. He had used it to scare the staff since he had panicked.
12. At the time of sentencing the applicant had had 10 previous court appearances resulting in convictions for 20 offences. These included robbery in 2004. The most recent conviction in 2008 was for wounding under section 20 of the Offences against that Person Act 1861 for which he was sentenced to 3 years' imprisonment. The pre sentence report said that in light of the applicant's previous convictions for violence and possessing weapons, he was assessed as posing a high risk of harm to the public
13. In passing sentence the judge said that he considered the applicant's account that he had confiscated the hammer from a group of youths to be incapable of belief. The fact that the applicant had carried and used a hammer while shoplifting was violent behaviour, out of all proportion to the offence committed. It demonstrated that the applicant was a dangerous individual who was prepared to carry and use weapons against members of the public. The applicant pleaded guilty at the earliest opportunity and the judge afforded him the maximum discount of one third. He was dangerous within the terms of the Criminal Justice Act 2003 since there was a clear and identifiable pattern of carrying weapons and using them. The judge said that an extended sentence was appropriate, consisting of a custodial term of 4 years and an extension period of 12 months. The judge said that the extended sentence was the overall term for all offences.
14. We note that the record sheet in this matter records the sentences for the non-specified offences under the Criminal Justice Act 2003, offences 2 and 3, as extended sentences, but it is clear from his comments that the judge was aware that only the assault is a specified offence under the legislation. The judge said:

"The appropriate custodial term for the offence of Section 47 assault and also the offence of possession of an offensive weapon and the theft which are associated with it, if those offences had been dealt with separately, the sentence for the offence of assault and the sentence for the possession of the offensive weapon would have been ordered to run consecutively. The theft would have been concurrent, but the total sentence in those circumstances would have been, the appropriate custodial sentence would have been, the same as the appropriate custodial term in this case, and I should say that the appropriate custodial term will be the least possible which is commensurate with the seriousness of these offences."

Legislative Framework

15. An earlier form of extended sentence was introduced in section 58 of the Crime and Disorder Act 1998, as consolidated in section 85 of the Powers of Criminal Courts (Sentences) Act 2000 ("the Sentencing Act 2000"), and applied to offenders convicted of a sexual offence or a violent offence. It provided for an extended period of licence where the court was satisfied that the normal period of licence to which the offender would be subject under the Criminal Justice Act 1991 would not be adequate to prevent the commission of further offending or rehabilitation. The extended sentence consisted of the custodial term and the extension period. The length of the custodial term was determined in the ordinary way: s. 85(2)(a). With the extension period, the offender remained on licence when released until the end of that period, and was liable to be recalled to custody at any time up to the end of that period: s. 85(2)(b). An extended sentence could not be passed for a violent offence unless the custodial term was four years or more: s. 85(3). There were limits on the extension periods. The length of the combined custodial term and extension period could not exceed the maximum sentence for the offence: s. 85(5).
16. Section 227 of the Criminal Justice Act 2003 ("the 2003 Act") contains the current provisions for extended sentences. Like extended sentences under section 85 of the Sentencing Act 2000 they comprise a custodial term and an extension period: s. 227(2C). As amended by the Criminal Justice and Immigration Act 2008 ("the 2008 Act") the conditions to the imposition of an extended sentence on an offender aged 18 or over are fourfold. First, the offender must be convicted of a specified offence as set out in Schedule 15 of the Act: ss. 224(1),(3), 227(1)(a); secondly, the court must consider that he is a dangerous offender: s. 227(1)(b); thirdly, a sentence of imprisonment for custody for life is either not available or not justified: s.227(1)(c); and fourthly, either the offender has a previous conviction for an offence in schedule 15A of the Act (s. 227(2A)) or the current offence justifies an appropriate custodial term of at least 4 years (s.227(2B)). Schedule 15A contains a list of grave offences.
17. Under section 247 of the 2003 Act, as amended by the 2008 Act, it is the duty of the Secretary of State to release a prisoner who is serving an extended sentence imposed under section 227 as soon as he has served one-half of the appropriate custodial term. Prior to the 2008 amendments, section 247 did not entitle those subject to an extended sentence to automatic release at the half way point. Rather such persons were only entitled to release after the half way point if the Parole Board directed it (s.247(2)). The board had to be satisfied that it was no longer necessary for the protection to the public that the person be detained: s.247(3). If the board did not direct release before the end of the appropriate custodial term the person had to be released when he had served the full appropriate custodial term: s.247(4).
18. The condition of a four year custodial term in section 227(2B) was introduced into section 227 of the 2003 Act by section 15 of the 2008 Act. The Explanatory Memorandum to the latter set out the Parliamentary intention to impose a "serious threshold" such that extended sentences may only be imposed where the offender would be required to serve at least two years in custody. Section 227(3) defines the term "appropriate custodial term" in section 227(2B) as meaning a sentence of imprisonment or detention not exceeding the maximum term permitted for the offence, which

"(a) is the term that would, apart from this section, be imposed in compliance with section 153(2),

(b) where the term that would be so imposed is a term of less than 12 months, is a term of 12 months."

The 12 month period arises in situations where there is a previous conviction for one of the very grave offences listed in Schedule 15A. The court exercises its discretion to impose an extended sentence because, notwithstanding that the current offence attracts a sentence of less than 12 months, there was a very grave offence in the past. The issue does not arise in this case.

19. Section 153, referred to in section 227(3), contains the general provision as to the length of discretionary custodial sentences. It applies when a court passes a custodial sentence other than one fixed by law or an indeterminate sentence under sections 225 or 226 (life sentences or imprisonment for public protection). Under it the custodial sentence must be for the shortest term, not exceeding the permitted maximum, that in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it. As a result of section 305(1), "associated" in relation to offences is to be read in accordance with section 161(1) of the Sentencing Act 2000. That section provides that an offence is associated with another offence if:

(a) the offender is convicted of it in the proceedings in which he is convicted of the other offence, or (although convicted of it in earlier proceedings) is sentenced for it at the same time as he is sentenced for that offence; or

(b) the offender admits the commission of it in the proceedings in which he is sentenced for the other offence and requests the court to take it into consideration in sentencing him for that offence."

20. The result is that the legislation enables a court in passing a sentence in relation to offence A to take into account in specifying the appropriate custodial term for that offence an associated offence B. Seriousness when sentencing offence A can have added complexion from an associated offence. The principle can be applied to extended sentences. Even though specified offence A by itself may not justify an appropriate custodial term of 4 years, when aggregated with associated offence B the totality of offending does. Aggregation in this way is subject to the custodial term for offence A not exceeding the statutory maximum and not infringing the principle of totality. Importantly, in the context of extended sentences the aggregate of the custodial term and the extension period for offence A must not exceed the maximum sentence for the offence: s. 227(5).
21. Section 264 of the 2003 Act spells out the application of the licensing provisions for those serving consecutive sentences. A person is not entitled to be released on licence until he has served a period equal to the aggregate of the custodial periods in relation to each of the terms of imprisonment: s.264(2). The custodial period in relation to a term of 12 months or more means one half of the term: s.264(6)(a)(ii). The licence imposed on his release continues until he would have served a term equal to the aggregate length of the terms of imprisonment: s.264(3)(a). The section makes specific provision for extended sentences. Following amendments in the 2008 Act, the custodial period before the offender becomes entitled to be released in the case of a consecutive extended sentence is one half of the appropriate custodial terms fixed for that sentence: s.264(6)(a)(ii). There are special provisions for sentences of less than 12 months: s.264(4), (5).
22. Thus the statutory language of section 153 points to the court being able to aggregate with a specified offence non-specified associated offences, to consider the totality of offending, when fixing the custodial term of an extended sentence under section 227. Secondly, under section 264 a court can impose a consecutive, extended sentence in the knowledge that the person will be automatically released on licence at the half-way point of the aggregate custodial term imposed. However, the language of section 227(2B) is such that the appropriate custodial term in relation to each extended sentence must be at least 4 years. Separate consecutive sentences, each shorter than 4 years, cannot be extended even if their total is more than 4 years.

The case law

23. Where there are associated offences the authorities establish that it is possible for the sentencing court to impose a higher sentence in relation to one of them to reflect the seriousness of the offending overall. That possibility of aggregation was enunciated in a series of cases involving statutory provisions enabling the court to order custody of a youth for serious offences. The current provision is section 91 of the Sentencing Act 2000, which enables a sentence of detention to be imposed on those under 18, if they are convicted on indictment of offences punishable in the case of adults with imprisonment of 14 years or more (unless the sentence for the offence is fixed by law) and for certain sexual or firearms offences.
24. In R v Fairhurst [1986] 1 WLR 1374 Lord Lane CJ for this court indicated that where there were two offences and custody was available under a predecessor of section 91 for one of those offences, but not for the second, the sentence of detention for the one offence could be increased to take account of the second offence where it was "part and parcel" of the events giving rise to the first offence. Fairhurst was cited with approval in R v M [1998] 1 WLR 363, where Lord Bingham CJ for this court said that where some of the offences could justify custody for a young offender, and other offences "associated" with them did not, it would usually be preferable to impose a term which took account of the associated offence or offences which did not fall within the relevant section. In such a case the practice recommended by the court in Fairhurst of imposing no separate penalty for the lesser offence should be adopted. (That would not apply if those offences attracted mandatory sentences).
25. In R v Aubrey [2006] EWCA Crim 2893 this court applied the Fairhurst approach in a context where section 91 was no longer relevant. The appellant had turned 18 and the only offence to which he pleaded after reaching that age was theft. The court held that it had been legitimate for the recorder to impose on the count of theft a custodial sentence commensurate with the seriousness not just of the offence of theft alone, but of the combination of that offence and the other offences associated with it, to which the appellant had pleaded guilty prior to turning 18, and for which only limited detention could be ordered.
26. Aggregation has also been approved in the more closely related to the present context of sentences of imprisonment for public protection for dangerous offenders. Under section 225 of the 2003 Act, as amended by section 13(1) of the Criminal Justice and Immigration Act 2008, two of the preconditions for the imposition of a sentence of imprisonment or detention for public protection are that at the time the offence was committed the offender had been convicted of an offence specified in Schedule 15A, or that the notional minimum term for the offence is at least two years: s. 225(3A) and (3B) respectively. The parallel with the preconditions for extended sentences in section 227 (2A) and (2B) is obvious. The "notional minimum term" in section 225 is the tariff period which the court must set during which the person must remain in prison before being eligible for consideration by the Parole Board for release. Normally that period will be one half of the determinate term of imprisonment for the offence. It is set under section 82A of the Sentencing Act 2000.
27. In R v O'Brien [2006] EWCA Crim 1741, [2007] 1 WLR 833 this court applied R v Haywood [2002] 2 Cr App R(S) 418 and said that where a court intends that the period before which a person will become eligible for parole with an indeterminate sentence should be consecutive to an existing sentence, or should follow a period of return to prison where an offence is committed during the original sentence, the judge should increase the notional determinate term to reflect that balance or that period: [61]. Where a court is imposing concurrent indeterminate sentences for two or more offences with the same minimum term, rather than imposing consecutive terms it was more desirable either to choose the same notional determinate term for all the offences concerned or to take the most serious offence and aggregate the notional determinate term for each to reflect the totality of the offending: [68].
28. In R v C (P) [2008] EWCA Crim 2158; [2009] 1 WLR 2158; [2009] 2 All ER 867 the court considered the amendment of section 225 by section 13 of the Criminal Justice and Immigration Act 2008. That introduced the precondition in imposing imprisonment for public protection that the notional minimum term should be at least 2 years. As with extended sentences the aim of the amendment was to impose a seriousness threshold. One issue raised before the court was whether the notional minimum term might be established by the aggregation of a series of sentences of less than four years' imprisonment, to reach a sentence in excess of that figure, then halving it to achieve the notional minimum term, or whether the power to make the order on the basis of section 225 (3B) required a sentence of at least four years to be imposed on at least one offence.
29. Lord Judge CJ said that in effect this question was whether the totality of the offending may be reflected in the notional term when a sentence of imprisonment for public protection was under consideration. He referred to section 82(3)(a) of the Sentencing Act 2000, the definition in that Act of associated offences, and the decisions in O'Brien and O'Halloran [2006] EWCA Crim 3148 to the effect that the combined totality of the offending should be reflected in the assessment of the notional term. He said that the amending legislation in the 2008 Act was enacted in the context of existing jurisprudence and, if any change of practice had been intended, some indication to that effect would have been included there. Moreover, if the offender's overall criminality required a sentence in excess of the minimum laid down in section 225(3B), and the court was satisfied of the necessary risk, it would be illogical for the protective powers inherent in imprisonment for public protection to be unavailable. Thus the two year minimum period could be established, notwithstanding the absence of any individual offence for which a four year custodial term would be appropriate, so long as one sentence carrying a minimum term of not less than 4 years was passed.
30. R v C(P) was applied in R v Delucca [2010] EWCA Crim 710; [2010] 4 All ER 290. The court held that in imposing an indeterminate sentence to reflect the risk of serious harm, and then imposing a minimum term for the penal element, the court could take account of the totality of the offending before it. A notional determinate sentence could be greater than the statutory maximum for the specified offence for which the sentence was being imposed.
31. Although there is no rule to the contrary, consecutive indeterminate sentences, and indeterminate sentences consecutive to another period of imprisonment, have long been frowned upon for practical reasons: Jones v Director of Public Prosecutions [1962] AC 635, 646-7. In R v O'Brien [2206] EWCA Crim 1996, mentioned earlier, the court said that it was undesirable to impose consecutive indeterminate sentences, or order an indeterminate sentence to be served consecutively to another period of imprisonment. Common sense suggested that a sentence of life imprisonment or of imprisonment for public protection started immediately on its imposition. Given the difficulties that may be encountered in determining when a prisoner must be released or was eligible for parole, it seemed to be much easier not to compound those difficulties by making indeterminate sentences consecutive to other sentences or periods in custody.
32. This issue had already been addressed in the context of extended sentences. R v Langstone [2001] 2 Cr App R(S) 98 concerned section 85 of the Sentencing Act 2000, which provided that an extended sentence could only be passed in relation to an offence of violence where the custodial term was not less than four years. As mentioned earlier there were also limits to the extension periods for violent and sexual offences. In that case the appellant was sentenced to three years for unlawful wounding, to run consecutively to a sentence of 13 months for a return to custody in relation to a sentence for a previous offence of violence. The sentencing judge, as a result of sentencing the appellant to a total of more than four years, held that he could impose an extended sentence.
33. Mance LJ said that the section 85 provisions, all in the singular, postulated that the court was sentencing for a single offence and, if it was a violent offence, that its custodial term was at least four years: [11]. There could be no question of imposing an extended sentence based upon the combination of two, or more, consecutive sentences for different offences even where both, or all, such offences were sexual or violent. This was obvious in relation to consecutive sentences imposed on separate occasions, and it was also obvious when consecutive sentences were passed on one occasion for separate offences. Thus a judge could not treat two shorter consecutive sentences for violent offences as combined, so as to constitute a single custodial term of at least four years and to bring the provisions of section 85 into potential application: [12].
34. In R v Brown [2006] EWCA Crim; [2007] 1 Cr App R(S), speaking for the court, Gage LJ referred to the release provision, section 247 of the Criminal Justice Act 2003, in its un-amended form. An offender subject to an extended sentence would only be released after serving half of the custodial term if the Parole Board was satisfied that it was no longer necessary for the protection of the public that he be confined. An offender serving a determinate term of 12 months or more would be released after serving half of his sentence. Thus, Gage LJ said, if a consecutive determinate sentence was passed to an extended sentence it might be difficult to determine when the custodial element of the extended term ended and the determinate sentence began: [23]. These difficulties did not arise if an extended sentence was made consecutive to a determinate sentence: [24]. Gage LJ continued:

"[26] … First we conclude that the court has power to pass consecutive extended sentences. We have no doubt that the court has power to pass an extended sentence consecutive to a determinate custodial sentence. It may very well be that the court has power to pass a determinate sentence consecutive to an extended sentence. …

[27] However, when the release provisions of section 247 are factored in difficulties may very well arise in respect of the calculation of dates for release and the start of the periods on licence. In those circumstances in our judgment the following points should be observed. First, consecutive extended sentences appear to provide considerable problems in determining the application of the appropriate licence period once the custodial element has been served. Secondly, similar problems will arise if a determinate sentence is made consecutive to an extended sentence. Accordingly we take the view that consecutive extended sentences and a determinate sentence consecutive to an extended sentence are, in general terms, not appropriate and should be avoided. However, we see no reason to suggest that such problems will arise if the extended sentence is made consecutive to the determinate sentence."

35. The only authority which addresses aspects of the issue facing us is R v Fazli [2009] EWCA Crim 939. There HH Judge Roberts QC gave the judgment of the court comprising himself and David Clarke J. The prosecution were unrepresented. The judge had passed an extended sentence of imprisonment, comprising a custodial term of four years and an extension period of 12 months, imposed on him for an offence of assault occasioning bodily harm. A concurrent sentence of 3 months was passed in relation to a count of common assault. The court said that there was no objection to the judge aggregating the terms of imprisonment appropriate to the two offences of violence, and then passing concurrent sentences with the sentence for assault occasioning actual bodily harm being fixed so as to represent the aggregate lengths of the two terms. However, the difficulty was that the maximum sentence for common assault was six months' imprisonment so that the maximum aggregate sentence for the two offences, following a contested trial, was five and a half years. The appellant was entitled to a reduction of one third for his early plea of guilty, which meant that the maximum aggregate sentence permissible on a plea of guilty at the first reasonable opportunity was still less than four years. Thus a sentence commensurate with the seriousness of the offence would not have reached the necessary four year threshold.
36. None of these authorities is inconsistent with our interpretation of the legislation. First, the youth sentencing cases, and those involving setting the minimum term in sentences of imprisonment for public protection (O'Brien, C(P), Delucca) support our conclusion that, in calculating the custodial term for an extended sentence, the court can aggregate non-specified offences as part of the totality of offending and thus pass, on the appropriate count, an extended sentence with a custodial term longer than the facts of that count alone would justify. That was the approach in Fazli, which we commend. Secondly, it is not possible by passing shorter consecutive sentences to constitute a single custodial term of 4 years to qualify for an extended sentence under section 227(2B) (Langstone). Thirdly, because of amendments by the Criminal Justice and Immigration Act 2008, there is now a definite release date for those subject to extended sentences, the half way point in the custodial term: s. 247(2)(a) of the 2003 Act. Thus the practical objections to consecutive extended sentences identified in Brown no longer apply.

The applications

(a) R v Pinnell

37. There is no complaint in this case about the total length of the custodial period of 4 years. Nor is issue taken with the judge's finding that the applicant was a dangerous offender under the Criminal Justice Act 2003. Thus an extended sentence was justified. What is submitted on the applicant's behalf is that the judge was wrong to make the two extended sentences consecutive to each other. The sentence at 7 years was justified, but the judge could not pass separate sentences, neither of which met the 4 year condition. The correct approach would have been to aggregate the sentences into the lead offence and to make the other sentences concurrent. That would satisfy the condition of a minimum of 4 years' imprisonment in s.227(2B) of the Criminal Justice Act 2003. Since the maximum sentence for an offence under section 20 of the Offences Against the Person Act 1861 is 5 years imprisonment, the extended licence period would be for one year, rather than for the 3 years which the judge imposed. The sentence expiry date would be reduced from the 19 May 2017 to the same day in 2015 and the applicant would be on licence for 3 years, on release at the half-way point, not 5 years.

(b) R v Joyce

38. Again no issue is taken in this case with the judge's assessment of the applicant as dangerous. What is said on the applicant's behalf is that, first, the custodial element of 4 years' imprisonment was manifestly excessive. As a consequence the applicant did not meet the criteria for the imposition of an extended sentence. The applicant had pleaded guilty at the earliest opportunity and insufficient credit was given for his early plea, or too high a starting point was taken in fixing the sentence before the discount. The complainant's injuries could be described a minimal. The injuries from blows to her back, which the complainant herself described as leading only to redness, were not obvious enough to appear in photographs. She had to be persuaded to attend hospital to have them examined. The judge sentenced the applicant on the incorrect basis that he had taken the weapon into the store for the purpose of using it if confronted. Insufficient regard was given to the principle of totality, and insufficient weight to the applicant's personal mitigation. The Sentencing Guidelines Council definition guideline Assault and other offences against the person indicates a starting point of 2 ½ years custody after trial in the case of assault occasioning actual bodily harm involving use of a weapon. Thus, it is submitted, it would be double counting to add much for the possession count.
39. On the applicant's behalf it is submitted, secondly, that the structure of the judge's sentence was flawed even if the four years' custodial term can be justified. The judge simply set out a custodial term of four years overall, without indicating how that was broken down between the three offences, the section 20 assault, the possession of an offensive weapon and the theft. Only the first was a specified offence for the purpose of imposing an extended sentence. The maximum sentences for these offences were 5 years, 4 years and 7 years respectively. It would have been possible to aggregate the offending and to impose 4 years for the assault, but that meant a starting point of 6 years, given the guilty plea, which would exceed the maximum, thus underlining that the sentence was manifestly excessive.

Discussion

40. In both these applications there were specified offences, inflicting grievous bodily harm in the case of Pinnell and assault occasioning actual bodily harm in the case of both Pinnell and Joyce. With both Pinnell and Joyce there is no challenge to the findings of dangerousness. The maximum sentence for both inflicting grievous bodily harm and assault occasioning actual bodily harm is five years, so a life sentence was never on the cards. None of the previous offences committed by Joyce and Pinnell feature in the list of grave offences in Schedule 15A. So in terms of the preconditions for the imposition of extended sentences both these applications turn on the meaning of section 227(2B), that if the court were to impose an extended sentence of imprisonment or detention "the term that it would specify as the appropriate custodial term would be at least 4 years".

(a) R v Pinnell

41. In this case we agree that the extended sentences were unlawful. There would have been no objection to imposing consecutive extended sentences if the condition in section 227(2B) had been satisfied in respect of each. It was not, since the custodial term fixed by the judge for each offence was 2 years, not 4 years. For the reasons we have explained, it is not possible to comply with section 227(2B) by passing separate sentences none of which meets the 4 year condition.
42. What the judge could have done is to aggregate the sentences into the lead offence. That is possible since the offences on the two indictments are associated offences as a result of the definition in section 161(1)(a) of the Sentencing Act 2000. Pursuant to section 153 of the Criminal Justice Act 2003 the overall seriousness of these associated offences justified concurrent custodial terms of four years for the section 20 counts on both indictments. However, the maximum sentence for section 20 is 5 years, so that the extension period could not be greater than a year, consistent with section 227(5) of the Criminal Justice Act 2003.
43. In relation to this applicant, therefore, we grant leave and amend the judge's sentences. We impose concurrent extended sentences in relation to count 2 on each indictment, with a custodial term of 4 years for both offences. The only effective change is that the judge's extension period is reduced from 3 years to 1 year. Other aspects of the sentences remain.

R v Joyce

44. In our view a four year custodial term for the totality of the applicant's offending can be justified. The difficulty is that the judge did not explain in the detail now required how he reached this result. As he explained, the assault was with a weapon, in the course of a theft. It was committed on a store employee, in public, albeit that the injuries were not serious. It was also committed in the presence of the applicant's young child. The child was, at the least, used as a prop for the theft, possibly also as an instrument of the attempt to escape. The applicant's antecedent history is less than attractive. Two and a half years for the assault and 18 months consecutive for the possession of the weapon could be justified, even on a plea. Alternatively, to take into account the submission about double-counting, and to avoid the dispute over how the claw hammer was acquired, 12 months consecutive could be imposed for the weapon and 6 months consecutive for the theft.
45. Thus the judge would have been justified in imposing an extended sentence for the section 47 assault of 4 years, by aggregating the offending. Concurrent determinate sentences for the possession and theft counts of 12 and 6 months respectively could have been imposed. We give leave and amend the sentences along these lines. In effect the judge's overall custodial term of 4 years, with an extension period of 12 months, remains.

Conclusion

46. The guidance which the Registrar invites us to give regarding extended sentences is as follows. It assumes that the offender is convicted of offences at least one of which is specified in Schedule 15; that he is dangerous; that a life sentence is not required; and that he has not previously committed one of the grave offences spelt out in Schedule 15A. It also assumes that the offences are associated offences, which will be the case if he is convicted of them at the same time, sentenced for them at the same time, or admits them when sentenced for other offences and asks for them to be taken into account. In other words, the key issue on these assumptions is whether the condition for imposing an extended sentence in section 227(2B) of the Criminal Justice Act 2003 is met, namely, whether the appropriate custodial term is four years.
47. If no one offence would justify a four year custodial term on ordinary principles, the seriousness of the aggregate offending must be considered. If a four year custodial term results from aggregating the shortest terms commensurate with the seriousness of each offence, then that four year term can be imposed in relation to the specified offence. If there is more than one specified offence that aggregate term should be passed for the lead specified offence, or, if appropriate, concurrently on more than one specified offence. If appropriate a concurrent determinate term may be imposed for other offences. The combination of the custodial term and extension period cannot exceed the maximum statutory sentence for the offence to which the extended sentence is attached. If the maximum period for the offence is 5 years, the extension period is therefore limited to a year.
48. There is no objection to imposing an extended sentence consecutive to another sentence, or to imposing consecutive extended sentences, although we suggest that it should be done only where there is a particular reason for doing so. The extension periods in the case of consecutive extended sentences will themselves be consecutive. In a case of consecutive extended sentences, each offence for which such a sentence is imposed must itself be a specified offence. Most importantly, each offence for which an extended sentence is imposed must also justify, on ordinary principles, including the aggregation of associated offences, a custodial term of at least 4 years. It is not possible to pass separate sentences of less than 4 years to meet this condition to the imposition of an extended sentence, even if their total is more than 4 years.