Practice and Procedure

R v S (2003)

PUBLISHED November 14, 2003

The application for an extension of time for leave to appeal an extended licence period of five years for sex offences was refused, as subsequent case law did not apply retrospectively.Application by the appellant ('S') for extension of time of over three years in order to apply for leave to appeal against a sentence of 30 months' imprisonment with an extended licence period of five years, on counts of indecent assault and committing gross indecency with a child. The basis of the application to extend time was that, subsequent to the imposition of the sentence, the Court of Appeal gave guidance on extended sentences which was not available to the sentencing judge and that the extended period of licence of five years should be reconsidered in the light of the guidance of R v Nelson (2001) 1 CAR 565. S submitted that the period was too long and was not justified by evidence before the sentencing judge and that time in which to make the application should be extended in order to allow the court to apply the approach in Nelson (supra) to the extended licence period imposed in the case. In relation to the retrospective effect of decisions of the Court of Appeal in sentencing matters S relied on R v Offen (2001) 2 CAR (S) 44 which was applied in R v Kelly (2001) EWCA Crim 1751. The Crown argued that the Offen (supra) and Kelly (supra) principle did not apply because they did not cover situations in which the Court of Appeal gave guidance on appropriate tariffs or on matters of sentencing practice as distinct from providing an authoritative construction of a statute.HELD: (1) The instant case did not fall into the same category as Kelly where Offen was applied. (2) In Offen the court had been construing statutory language, the construction decided upon affected the powers of the court and meant that on certain findings of fact the court had no power to take a particular course. (3) The court in Nelson (supra) did not decide statutory meanings and there was no restriction on the powers of the court. Advice was given by way of sentencing guidelines as to the approach the court ought to adopt and the factors to be taken into account when determining the length of the extension period. This guidance came within the realm of current sentencing policy and practice. It did not define or declare the law in a way which would require it to be applied retrospectively in the court. (4) The application for an extension of time of over three years would be refused. An extension period of five years would be unlikely to be imposed currently in the circumstances of the case however it was not clear whether it was manifestly excessive.Application refused.

[2003] EWCA Crim 3230