Christopher Hewertson brings successful appeal for a 20 year old defendant charged with attempted murder

November 2, 2018

Christopher very recently brought a successful appeal against sentence in interesting circumstances: R v W [2018] EWCA 2131.  His client was long charged with attempted murder.

There was no dispute that his client was the “knife man” in a joint-handed attack on a male in a chicken shop in Woking; the attack being caught on good-quality CCTV.  The appellant had offered a plea to s.18 wounding with intent at his PTPH.  This was roundly rejected by the Crown who declined to add the lesser offence to the indictment.  Christopher drafted a number of written representations for the prosecution to consider.  In the month before the trial, the Crown accepted the lesser plea.  The appellant was 20 years old and had no prior convictions (albeit he had a caution for assault and prior diversions as a youth for ABH and carrying knives).  At sentence, the trial judge imposed a category 1 sentence (allowing for full credit) of 8 years and found the appellant dangerous, against an inferred background of gang activity.  This sentence was extended, meaning that the appellant would serve a minimum of 6 years (two-thirds) in prison and that he could not be released from prison before the end of the 8 year tariff without the approval of the Parole Board.   He would then have been subject to an additional 3 years of licence conditions.

In the Appeal, Christopher forcefully argued that the principle of an extended sentence should not apply to this appellant in his particular circumstances: that neither the facts of the offence alone, his limited antecedent history nor the two in combination could justify vitiating the usual principles of sentencing people to prison: i.e. the punishment, deterrent effect and the protection of the public could all be well met by a lengthy determinate sentence.  In such circumstances, as a minimum, the sentencing judge should have exercised his discretion not to impose an extended sentence.  The Court of Appeal upheld the appeal on those grounds, substituting the extended sentence of 8 years to a determinate sentence.  As a matter of law, the appellant cannot now serve more than 4 years in prison without being released, unless he were to re-offend.

Important context as to the proper operation and effect of ‘new’ extended sentences was set out by the Court in Saunders [2014] 1 Cr App R (S) 258 (45).  In particular, the new extended sentence is ‘much more onerous’ than the version originally created by the CJA 2003:

  1. Any offender sentenced to an extended sentence on or after 13 April 2015 will serve at least two-thirds of the custodial term.
  2. The Secretary of State must refer all such prisoners to the Parole Board at that point, and such prisoners will be released following recommendation of the Parole Board at some point between the two-thirds and end points of the custodial term.
  3. It follows that in all cases the post-LASPO (2012) extended sentence for an offender aged 18 or over is more onerous in its effect than before, and that the precise date of release from the extended sentence cannot be known at point of sentence.
  4. Imposition of the sentence is discretionary.
  5. The option of a determinate sentence should not be forgotten.
  6. It is the extended period of licence that provides protection to the public (rather than any longer period in custody).