Case No: 201502671 B5
Neutral Citation Number: [2015] EWCA Crim 1917
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Wolverhampton Crown Court
HHJ Watson
T20097157
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 09/12/2015
Before :

THE RIGHT HONOURABLE LORD JUSTICE FULFORD
THE HONOURABLE MR JUSTICE SPENCER
and
THE HONOURABLE MR JUSTICE HOLGATE
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Between :

	The Crown		
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	Benjamin Hezekia O'Meally	Applicant	

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(Transcript of the Handed Down Judgment.
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Mr Peter Grieves-Smith (instructed by CPS Appeals Unit) for the Crown
Mr John Butterfield QC (instructed by Waldrons Solicitors) for the Applicant

Hearing date: 8th May 2015
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Judgment
Lord Justice Fulford : 

1.	In a judgment handed down on 20 May 2015, the applicant's appeal against conviction following a reference by the Criminal Cases Review Commission under section 9 Criminal Appeal Act 1995 was dismissed. 
 
2.	In a 'Postscriptum' to the judgment we added: 
 
During the course of his submissions Mr Butterfield did not address the sentence imposed by the judge, an issue that had been raised by the Commission and to which there was reference in the appellant's skeleton argument. The Court assumed that this matter was no longer being pursued. However, in his comments on the draft of the judgment, Mr Butterfield indicated that this was a live issue. As a result we give the respondent until 4 pm Friday 29 May 2015 and the appellant until 4pm Friday 5 June 2015 to file any final written submissions on this issue. The court will then hand down a reserved decision.  
 
3.	The short history relevant for these purposes is that on 29 September 2009 the judge sentenced the appellant to imprisonment for life for nine counts of rape, and she specified eight years and nine months' as the minimum term to be served under section 82A Powers of the Criminal Courts (Sentencing) Act 2000. The appellant's convictions put him in breach of a sexual offences prevention order and as a result the judge additionally imposed a concurrent term of two years' imprisonment to reflect the breach. However, immediately after the end of the sentencing exercise, prosecuting counsel revealed that a suspended sentence of 51 weeks' imprisonment had been passed on 21 August 2008 at the Wolverhampton Crown Court for an earlier breach of the sexual offences prevention order. The judge thereafter 'increased' the minimum term to nine years nine months' imprisonment 'so that the sentence will be served in full'. 
 
4.	After the hearing, defence counsel took steps to address what he perceived as an error on the part of the judge. Because the offence for which the appellant had received the suspended sentence was not a 'specified serious offence', any sentence passed by the judge in this regard should not have been made part of the minimum period. In a written note dated 6 October 2009, he alerted the Crown Court to this difficulty and, additionally, he complained that the 51-week period should not have been imposed in its entirety because that equated to a sentence of imprisonment of about 2 years. 
 
5.	 On 29 October 2009, the case was relisted before Judge Watson. She decided that it was wrong to impose the entirety of the 51 weeks' suspended sentence, and she varied the minimum term to nine years three months' imprisonment. Accordingly, the minimum term was increased by a lesser term: 6 months. She did not address the other issue raised by the appellant’s counsel.  
 
6.	It is common ground between the prosecution and the defence that the judge did not have the power to 'increase' the minimum term in order to incorporate a sentence that reflected a breach of a suspended sentence imposed for the breach of a sexual offences prevention order, because the relevant offence was not a (serious) specified offence for the purposes of sections 224 and 225 and schedule 15 Criminal Justice Act 2003. 
 
7.	We are grateful to the Commission for bringing this issue to our attention. Albeit this matter has been raised many years after the sentencing exercise, we consider that it would be unjust to leave this illegal element of the sentence undisturbed. 
  
8.	We grant leave to appeal. We quash the minimum term of nine years three months' and substitute the original sentence the judge passed, eight years nine months' imprisonment. We activate the suspended sentence with the term unaltered, and in the event the appellant will serve a concurrent period of 51 weeks' imprisonment for the breach of the sexual offences prevention order. In our view, the breach of the sexual offences prevention order – albeit it occurred slightly before the period covered by the indictment – was an integral part of the overall history leading to his conviction and the sentence on the nine counts of rape. In those circumstances it would be wrong to impose a consecutive sentence for the breach.