Court of Appeal allows out of time appeal of extended licence period  

R v Nasuna [2009] EWCA Crim 880

(3/4/09) Court of Appeal before Dyson LJ, Irwin LJ and Sweeney LJ

> judgment

Mr Nasuna had pleaded guilty to a number of serious offences dating back to 2001. In June 2002 he received an extended sentence of 10 years, comprising a custodial term of 6 years and an extended licence period of 4 years. [Powers of Criminal Courts (Sentencing) Act 2000 s.85].

He had previously been advised by other legal representatives that there was no merit in appealing this sentence.

In 2007/8, having completed the custodial term but still subject to the extended licence, the appellant consulted new solicitors in relation to a housing query. They referred the appellant to their Prison Law team who sought counsel’s advice as to the merits of attempting to appeal the extended licence period out of time.

At the Court of Appeal, the single judge referred the case to the full court. It was there submitted that the lengthy delay in seeking leave to appeal was not the fault of the appellant. He had been entitled to rely and had relied on the (questionable) advice of a number of former legal advisors that no arguable grounds existed to appeal the sentence. It was further submitted that, at the time of sentencing, the length of the custodial element of an extended sentence would inevitably be at the forefront of an appellant’s mind; the reality of the restrictions and recall risks of a lengthy licence period would not impact fully until after a defendant has been released and even then not until after he had completed the ‘normal’ licence period attaching to the custodial term.

In this appellant’s case, he had been released in June 2005 after serving ½ of his custodial term. He then remained on licence in relation to that 6 year term for a further 18 months. At that point the extension period of 4 years began, resulting in a total licence period of 5½ years from release. He therefore remained at risk of executive recall (i.e. without a court hearing) until December 2010 for any breach of the conditions of his licence. The conditions were extremely restrictive and included a geographical exclusion zone which prevented him from visiting his now terminally ill mother at her home. During his custodial term and, later, during the early part of his licence, the appellant had successfully completed a number of rehabilitative courses. Whilst still under supervision, his supervising officer confirmed that no further rehabilitative work was now required.

In granting leave to appeal out of time, the Court stated that exceptional circumstances existed to justify granting the application after such a lengthy period. In substituting an extended licence period of 2 years for the original 4 year extension period, The Court considered the principles in the guideline case of R v Nelson [2001] EWCA Crim 2264 . They also recognised that, in the appellant’s case, the effect of the licence period was not simply “an academic matter”.

Commentary

This case highlights the importance of a full and detailed analysis at the time of sentence of the necessary length of an extended licence period given the long term consequences and restrictions of such a disposal. The Nelson principles should always be addressed in detail at the earliest possible stage.

The appellant was represented by Nina Grahame , instructed by Robert Lizar Solicitors .

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> This case is also reported in Crimeline Updater issue 298