England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		3rd November 2005

1. THE VICE PRESIDENT: These 13 cases have been heard together because, in each, the offences were specified violent or sexual offences committed on or after 4th April 2005, thereby attracting the new mandatory sentencing provisions, in relation to the protection of the public from dangerous offenders, contained in sections 224 to 229 of the Criminal Justice Act 2003. A sentence of life imprisonment, or imprisonment or detention for public protection, or an extended sentence was passed in the court below in 12 of the cases, though it is to be observed that in none was the specified period to be served under section 82A of the Powers of Criminal Court (Sentencing) Act 2000, greater than three-and-a-half years and in three it was 18 months or less. In the other case, no such sentence was passed. During the hearing we gave leave to appeal to all those who did not otherwise have leave.
2. This is the first opportunity this Court has had to consider some of the principles applicable to the new sentences and the factors which judges should take into account when deciding whether one of the new sentences must be imposed. We express our gratitude not only to counsel appearing before us on behalf of the appellants and the Crown but also to Dr David Thomas QC for his helpful note in Archbold News, Issue 4, 15th April 2005.
3. It should first be noted that, in relation to offences committed before 4th April 2005, discretionary life sentences, automatic life sentences, longer than commensurate sentences and extended sentences continue to be available. Accordingly, a defendant being sentenced for offences committed both before and after 4th April is required to be sentenced by reference to the two different regimes. It will generally be preferable to pass sentence on the later offences by reference to the new regime, imposing no separate penalty for the earlier offences. But this may not be possible if the later offences are less serious than the earlier ones.
4. Sentencers will, almost always, need to have before them the relevant sections of the Act. What follows is not intended to be a substitute for looking at the Act's provisions. It is merely an attempt to summarise the approach to sentencing which the Act requires and to give guidance as to its meaning.
5. To qualify for one of the new sentences, the offender must be convicted of a "specified offence", that is one of the 153 categories of violent or sexual offences listed in Parts 1 or 2 of Schedule 15 of the Act: violent offences range from murder to affray and threats of various kinds and sexual offences for rape to exposure. It is to be noted that the Sexual Offences Act 1956, which is referred to in identifying offences numbered 66 to 92 of Part 2 of the Schedule, was repealed on 1st May 2004, so one of the new sentences cannot be imposed in relation to any of the offences under that Act: but offences committed under the 1956 Act may be relevant to the assessment of dangerousness under section 229.
6. A specified offence may or may not be serious (section 224). It will be serious if it is punishable, in the case of a person aged 18 or over, with 10 years' imprisonment or more (section 224(2)(b)). If serious, it may attract life imprisonment or imprisonment for public protection for an adult (section 225) or detention for life or detention for public protection for those under 18 on the day of conviction (section 225). It will attract such a sentence if the court is of opinion that there is a significant risk to members of the public of serious harm by the commission of further specified offences (section 225(1) and section 226(1)).
7. Significant risk must be shown in relation to two matters: first, the commission of further specified, but not necessarily serious, offences; and, secondly, the causing thereby of serious harm to members of the public. If there is a significant risk of both, either a life sentence or indeterminate imprisonment for public protection must be imposed on an adult (section 225(2) and (3)). It must be a life sentence if the offence is one for which the offender is liable to life imprisonment and the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify imprisonment for life (section 225(2)); otherwise it must be imprisonment for public protection (section 225(3)). In relation to those under 18, there are similar provisions in relation to detention for life and detention for public protection subject, in the latter case, to an additional criterion by reference to the adequacy of an extended sentence under section 228 (section 226(2) and (3)). By section 229(3), where an offender aged 18 or over has previously been convicted of a specified offence, the court must assume there is a significant risk under sections 225 and 227 unless this would be unreasonable after taking into account information about the nature and circumstance of each offence, any pattern of behaviour of which any offence forms part and the offender.
8. It is not clear whether Parliament, when referring in sections 225(2)(b) and 226(2)(b) to the seriousness of an offence or offences being "such as to justify" imprisonment or detention for life, thereby making such a sentence mandatory, was intending to adopt this Court's criteria for the imposition of a discretionary life sentence (see R v Chapman [2000] 1 Cr App R(S) 77) or was seeking to introduce a new, more restrictive, criterion for seriousness relating it solely to the offence rather than, also, to the dangerousness of the offender. On the basis that Parliament is presumed to know the law, we incline to the former view. This construction is supported by section 143(1) which requires the court, when considering the seriousness of any offence, to consider the offender's culpability and "any harm which the offence caused, was intended to cause or might foreseeably have caused". This language clearly requires consideration of the culpability of the defendant as well as the seriousness of the offence and therefore involves consideration of dangerousness. For all practical purposes, imprisonment and detention for public protection are exactly the same as a life sentence: both are sentences for an indeterminate period, subject to the provisions of Chapter 2 of Part 2 of the Crime (Sentences) Act 1997 as to the release of prisoners and duration of licencees (sections 225(4) and 226(4). And, in relation to both a life sentence and imprisonment and detention for public protection, the court must fix a minimum term to be served in accordance with section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 as amended. However, there may be exceptional cases where the offence itself is so serious than an indeterminate sentence is justified by the seriousness of the offence irrespective of the risk to the public (Practice Direction para IV.47 [2002] 1 WLR 2870). The only discernible differences between a life sentence and imprisonment or detention for public protection are, first, that in the case of a sentence for imprisonment or detention for public protection, the Parole Board may, on application 10 years after release, direct the Secretary of State to order that a licence shall cease to have effect; and secondly, in relation to such a sentence no order can be made under section 82A(4) that early release provisions shall not apply (see section 82A (4A) as inserted by Schedule 18 paragraph 4 of the Criminal Justice Act 2003).
9. It is convenient at this point to remind sentencers of the provisions of section 143(2) and (3). Section 143(2) requires the court, when considering the seriousness of an offence committed by an offender who has previous convictions, to treat each previous conviction as an aggravating factor if, in the case of that previous conviction, the court considers that it can reasonably be so treated, having regard in particular to the nature of the offence to which the conviction relates and its relevance to the current conviction and the time that has elapsed since the conviction. This provision requires the court to look beyond the instant offence (and any offences associated with it) in order to see whether there are aggravating factors which it should have in mind when assessing the seriousness of that instant offence. Section 143(3) requires the court to consider commission of an offence on bail as an aggravating factor, when considering the seriousness of that offence.
10. The procedure for fixing a minimum term in relation to these new sentences should be as before the Act in relation to discretionary and automatic life sentences. The court, taking into account the seriousness of the offence or the combination of the offence and one or more offences associated with it, must identify the notional determinate sentence which would have been imposed if a life sentence or imprisonment for public protection had not be required. This should not exceed the maximum permitted for the offence. Half that term should normally then be taken and from this should be deducted time spent in custody or on remand (see section 82A of the 2000 Act as set out in amended form in Archbold 2005 paragraph 5 - 310 and section 240 of the Criminal Justice Act 2003). There will continue to be exceptional cases where more than half may be an appropriate: see R v Szczerba [2002] 2 Cr App R(S) 387 paragraphs 31 - 34. As previously, when the offender has served the period specified he may require the Secretary of State to refer his case to the Parole Board who may direct his release if "satisfied that it is no longer necessary for the protection of the public" that he should be confined. If released, he will remain on licence indefinitely, save, as we have indicated, when the sentence was imprisonment for public protection and the Secretary of State makes an order, after 10 years, that the licence should cease to have effect. In calculating the minimum term, an appropriate reduction should be allowed for a plea of guilty (see Sentencing Guidelines Council Guideline on Reduction for a Guilty Plea paragraph 5.1), and care should be taken not to incorporate in the notional determinate sentence an element for risk which is already covered by the indeterminate sentence.
11. Serious harm is defined in section 224(3) as meaning "death or serious personal injury, whether physical or psychological". It is a concept familiar since the Criminal Justice Act 1991 section 2(2)(b) and previous decisions of this Court will continue to be relevant to its assessment. For example, as was said in R v Bowler 15 Cr App R(S) 78, sexual assaults which are relatively minor physically may lead to serious psychological injury; and downloading indecent images of children may cause serious psychological injury to a child arising not only from what the child has been forced to do but also from the knowledge that others will see what they were doing (see R v Collard [2004] Crim LR 757).
12. Section 227 makes provision for extended sentences in relation to persons aged 18 or over on conviction. An extended sentence must be imposed on a person convicted of a specified offence not punishable with 10 years or more where the court considers there is a significant risk of serious harm by the commission of further specified offences. As with previous extended sentences, the sentence will be the aggregate of the appropriate custodial term and a licence extension period. The custodial term must be the shortest term commensurate with the seriousness of the offence or the offence and other offences associated with it (section 153(2)), save that, if the commensurate term would be less than 12 months, 12 months must be imposed (section 227(3)(b)). The extension period will be of such length as the court considers necessary to protect the public from serious harm by the commission of further specified offences (section 227(2) (b) but must not exceed 5 years for a violent offence or 8 years for a sexual offence. The extended sentence must not exceed the maximum permissible for the offence (section 227(4) and (5)). Some parts of the judgment in Nelson [2002] 1 Cr App R(S) 565 may continue to be of help, though the judgment must be read in the light of the new statutory provisions. Until section 74 of the Criminal Justice and Court Services Act 2000 is brought into force, applying imprisonment to those aged 18 or over, the sentence for 18 to 20 year olds should continue to be expressed as "custody for life" or "detention in a Young Offender Institution".
13. It is to be noted that, in contrast to the old extended sentence under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000, (which is repealed by the Criminal Justice Act 2003, Schedule 37, part 7) the new sentence does not apply to offences punishable with 10 years or more. This means that most sexual offences, under the Sexual Offences Act 2003, are outwith these provisions.
14. In relation to offenders under 18 on conviction, provision for extended sentences is made by section 228. An extended sentence of detention, comparable to that of imprisonment for those under 18 or over on conviction, must be imposed where a specified (though not necessarily serious) offence is committed and the court considers that there is a significant risk of serious harm by the commission of further specified offences and, where the specified offence is a serious offence, that neither detention for life nor detention for public protection are required under section 226(2) and (3). In considering sections 226 and 228 in conjunction, the fundamental question to be addressed by sentencers will be whether an extended sentence is adequate to protect the public.
15. The provisions for assessment of dangerousness in section 229 distinguish between offenders aged 18 or over with a previous conviction for a specified offence and those under 18 or with no such previous conviction. In both cases, information is identified which the court must or may take into account in assessing dangerousness but there is a rebuttable assumption of dangerousness in relation to adults with a previous specified offence conviction. In our judgment, when sections 229 and 224 are read together, unless the information about offences, pattern of behaviour and the offender (to which regard must be paid under section 229(3)) show a significant risk of serious harm (defined by section 224 as death or serious injury) from further offences, it will usually be unreasonable to conclude that the assumption applies.
16. It seems to us that the part of these labyrinthine proposals which is most critical, in relation both to the sentencing process and to the impact of that process on prison occupancy, is section 225(1) and its echo, in relation to those under 18, in section 226(1). We have already referred to the fact that significant risk of two matters must be shown before life imprisonment or imprisonment for public protection becomes obligatory, that is the commission of a further specified offence and the causing of serious harm thereby.
17. In our judgment, the following factors should be borne in mind when a sentencer is assessing significant risk:

(i) The risk identified must be significant. This is a higher threshold than mere possibility of occurrence and in our view can be taken to mean (as in the Oxford Dictionary) "noteworthy, of considerable amount or importance."

(ii) In assessing the risk of further offences being committed, the sentencer should take into account the nature and circumstances of the current offence; the offender's history of offending including not just the kind of offence but its circumstances and the sentence passed, details of which the prosecution must have available, and, whether the offending demonstrates any pattern; social and economic factors in relation to the offender including accommodation, employability, education, associates, relationships and drug or alcohol abuse; and the offender's thinking, attitude towards offending and supervision and emotional state. Information in relation to these matters will most readily, though not exclusively, come from antecedents and pre-sentence probation and medical reports. The Guide for sentence for public protection issued in June 2005 for the National Probation Service affords valuable guidance for probation officers. The guidance in relation to assessment of dangerousness in paragraph 5 is compatible with the terms of this judgment. The sentencer will be guided, but not bound by, the assessment of risk in such reports. A sentencer who contemplates differing from the assessment in such a report should give both counsel the opportunity of addressing the point.

(iii) If the foreseen specified offence is serious, there will clearly be some cases, though not by any means all, in which there may be a significant risk of serious harm. For example, robbery is a serious offence. But it can be committed in a wide variety of ways many of which do not give rise to a significant risk of serious harm. Sentencers must therefore guard against assuming there is a significant risk of serious harm merely because the foreseen specified offence is serious. A pre-sentence report should usually be obtained before any sentence is passed which is based on significant risk of serious harm. In a small number of cases, where the circumstances of the current offence or the history of the offender suggest mental abnormality on his part, a medical report may be necessary before risk can properly be assessed.

(iv) If the foreseen specified offence is not serious, there will be comparatively few cases in which a risk of serious harm will properly be regarded as significant. The huge variety of offences in Schedule 15, includes many which, in themselves, are not suggestive of serious harm. Repetitive violent or sexual offending at a relatively low level without serious harm does not of itself give rise to a significant risk of serious harm in the future. There may, in such cases, be some risk of future victims being more adversely affected than past victims but this, of itself, does not give rise to significant risk of serious harm.

(v) In relation to the rebuttable assumption to which section 229(3) gives rise, the court is accorded a discretion if, in the light of information about the current offence, the offender and his previous offences, it would be unreasonable to conclude that there is a significant risk. The exercise of such a discretion is, historically, at the very heart of judicial sentencing and the language of the statute indicates that judges are expected, albeit starting from the assumption, to exercise their ability to reach a reasonable conclusion in the light of the information before them. It is to be noted that the assumption will be rebutted, if at all, as an exercise of judgment: the statute includes no reference to the burden or standard of proof. As we have indicated above, it will usually be unreasonable to conclude that the assumption applies unless information about the offences, pattern of behaviour and offender show a significant risk of serious harm from further offences.

(vi) In relation to offenders under 18 and adults with no relevant previous convictions at the time the specified offence was committed, the court's discretion under section 229(2) is not constrained by any initial assumption such as, under section 229(3), applies to adults with previous convictions. It is still necessary, when sentencing young offenders, to bear in mind that, within a shorter time than adults, they may change and develop. This and their level of maturity may be highly pertinent when assessing what their future conduct may be and whether it may give rise to significant risk of serious harm.

(vii) In relation to a particularly young offender, an indeterminate sentence may be inappropriate even where a serious offence has been committed and there is a significant risk of serious harm from further offences (see for example, R v D [2005] EWCA Crim 2282).

(viii) It cannot have been Parliament's intention, in a statute dealing with the liberty of the subject, to require the imposition of indeterminate sentences for the commission of relatively minor offences. On the contrary, Parliament's repeatedly expressed intention is to protect the public from serious harm (compare the reasoning of the Court in relation to automatic life sentences in R v Offen [2001] 2 Cr App R(S) 44, paragraphs 96 to 99.

(ix) Sentencers should usually, and in accordance with section 174(1)(a) of the Criminal Justice Act 2003 give reasons for all their conclusions: in particular, that there is or is not a significant risk of further offences or serious harm; where the assumption under section 229(3) arises for making or not making the assumption which the statute requires unless this would be unreasonable; and for not imposing an extended sentence under sections 227 and 228. Sentencers should, in giving reasons, briefly identify the information which they have taken into account.

18. A variety of other issues have been addressed in argument before us and we proffer guidance in relation to some of these.
19. The risk to be assessed is to "members of the public". This seems to be an all-embracing term. It is wider than "others", which would exclude the offender himself. We see no reason to construe it so as to exclude any particular group, for example prison officers or staff at mental hospitals, all of whom, like the offender, are members of the public. In some cases, particular members of the public may be more at risk than members of the public generally, for example when an offender has a history of violence to cohabitees or of sexually abusing children of cohabitees, or, as in one of the cases before us, (Feihn)where the offender has a particular problem in relation to a particular woman.
20. When offenders are to be sentenced for several offences only some of which are specified, the court which imposes an indeterminate sentence under sections 225 or 226 or an extended sentence under sections 227 or 228, for the principal offences should generally impose a shorter concurrent sentence for the other offences. In the case of a specified offence where there is a risk of serious harm, the sentence for such other offence must be an extended sentence where the principal offence is a serious offence (section 227(2)). It will not usually be appropriate to impose consecutive extended sentences, whether the principal offence is serious or merely specified (compare Nelson paragraph 23).
21. Care should be taken to ensure that a continuing offence which, as initially indicted, straddled 4th April 2005 is indicted, if necessary by amendment, so that sentence can properly be passed by reference to the new and/or old regime as appropriate.
22. If, in relation to a dangerous offender, the requirements of the Mental Health Act 1983 are satisfied the court can dispose of the case under those provisions - see section 37 of the Mental Health Act as amended by the Criminal Justice Act 2003, Schedule 32 paragraph 38(b).
23. In the light of these general observations, we turn to the cases before us.
24. Lang: on 17th June 2005 at Basildon Crown Court, this appellant pleaded guilty and on 19th June he was sentenced by His Honour Judge Lockhart to life imprisonment for robbery with a specified period based on a notional determinate sentence of 6 years. He appeals by certificate of the sentencing judge.
25. The facts were that, at about 7 o'clock on the morning of 5th April 2005, the appellant entered a shop where a lone female assistant was on duty. He selected a drink and some crisps and approached the counter. He produced a knife which he brandished close to the assistant's face and demanded money. He seized notes proffered by the assistant and ran out of the shop.
26. In passing sentence the learned judge referred to this being the robbery of a small newsagents shop where the victim was a young lady alone at the time. It was likely that at that time there would be few customers present. The appellant had a knife which he brandished close to her face, while demanding money and she was terrified.
27. The appellant was 23 and had numerous previous convictions, the most relevant of which were a robbery in 1999 and two street robberies the following year. This particular offence was a bad offence of its type and the appellant had committed three previous robberies within the past 6 years.
28. The pre-sentence report indicated that attempts to deal with his problems in the past had failed.
29. The court, the learned judge said, had to determine whether the provisions of section 225 of the 2003 Act applied and this involved looking into the future as well as at the appellant's record. The only sensible conclusion was that he presented a potential for significant risk of serious harm to the public from similar offending. There was no basis for suggesting that there would be any significant change in his behaviour. Accordingly section 225 applied.
30. The next question, the judge said, was whether the circumstances justified imprisonment for life. He was over 18, the offence was a specified serious offence and he posed a significant risk of further harm. The offence was more serious because of the use of the knife. It was committed by a repeat robber, and so there was an established pattern of behaviour. The seriousness of the offence was such as to justify imprisonment for life.
31. The appellant was born in July 1982. He has made nine previous appearances before the court for 27 offences, including the three previous convictions for robbery to which the judge referred. The pre-sentence report indicated that the appellant is of limited impulse control. He was addicted to crack and, unless he took responsibility for his behaviour and sought to achieve a permanent change, further offending was inevitable. He would continue to pose an escalating risk of harm to the public. He was now remorseful and had shown some victim empathy.
32. The grounds of appeal challenge the propriety of a sentence of life imprisonment and the propriety of the notional determinate sentence.
33. Mr Maguire, on the appellant's behalf, conceded that there was a significant risk of further specified offences but he submitted that there was no significant risk of serious harm demonstrated. The appellant's record, he said, is unattractive but in no previous offence had serious harm been caused or a weapon been carried. The pattern of offending did not suggest serious risk and the judge regarded the earlier robberies as less serious than the present. In the present offence, the knife had not been used and the undoubted fear of the victim did not give rise to serious psychological consequences. In any event, submitted Mr Maguire, the circumstances of the present offence were not sufficiently serious to justify a life sentence.
34. Mr Maguire stressed the mitigation to be found in the appellant's age, 23 at the time, the absence of a firearm or any actual violence, the fact that the appellant was acting alone and without sophisticated planning on a single occasion, the fact that he is beginning to show insight into his conduct and is being motivated to change, these matters being demonstrated by his own letter and a prison report. Mr Maguire also stressed the plea of guilty at the first opportunity.
35. For the Crown, Mr Winter posed the question as to whether street robberies or robberies of shop premises should in themselves fall within the category of giving rise to significant risk of serious harm where no physical injuries are caused and there is no evidence of psychological injury. This case fell within section 229(3), although the judge in his sentencing remarks did not refer to this section. Accordingly, there was an assumption of a significant risk of serious harm, unless it would be unreasonable so to conclude.
36. It is to be noted that the pre-sentence report referred to further offending as being inevitable and to an escalating risk of harm to the public, unless the appellant sought to achieve a permanent change, as to which there are present promising signs. In our judgment not all street robberies or robberies of shops will give rise to a risk of serious harm. But where a lethal weapon, be it a real firearm or a knife, is carried, then there may well be a significant risk of serious harm in an offence of that kind. Where, as here, the knife was waved near the victim's face and the appellant has three previous convictions for robbery in the space of 6 years, it is in our judgment impossible to contend that it would be unreasonable to conclude that the statutory assumption should apply. Accordingly, the judge was right to say that the circumstances gave rise to a significant risk of serious harm, although it would have been preferable had he expressly addressed section 229. He was not, however, right to proceed as he did from that conclusion to a conclusion that the offence was so serious as to merit a life sentence. Indeed, the notional determinate term which he fixed suggests to the contrary. This robbery was serious. But it would not hitherto have been such as to justify a life sentence. Nor, in our judgment, does it now. Accordingly, we quash the life sentence and substitute for it a sentence of imprisonment for public protection. In view of the mitigation, particularly the plea of guilty, we think a notional determinate sentence of 6 years was somewhat too high. Five years would have sufficed. The specified term to be served will therefore be two-and-a-half years less time spent in custody, which we understand to be 3 months and one week. To that extent, Lang's appeal is allowed.
37. Abdi: on 1st July 2005 at Inner London Crown Court, this appellant pleaded guilty to robbery and, on 15th July, he was sentenced by Mr Recorder Lafferty to life imprisonment with a specified period to be served based on a notional determinate sentence of 4 years. His case was referred to the Full Court by the Registrar.
38. The facts were that, at about 10.00 pm on 18th April 2005, a young man was walking along a street in Central London, talking on his mobile telephone to his girlfriend. He felt something hit him on the right side of his cheek. This caused his spectacles to fall to the ground. Not knowing what was happening, he turned and saw the appellant before him. It was apparent to him, in his disorientated state, that his mobile telephone had gone. The appellant ran off. He was arrested a short while later because the robbery had been recorded on CCTV. He was in possession of the victim's mobile telephone.
39. When interviewed he declined to comment.
40. He entered his plea on a somewhat elaborate specific basis which was accepted. For present purposes the relevant part of the basis of plea is that he had snatched the telephone forcibly from the victim who was holding it to his ear. The appellant accepted that his hand may have collided with the victim's face in a way perceived by the victim to be a punch and that, in consequence, the spectacles were knocked off. However, the defendant did not intentionally punch the victim nor use any other force to him.
41. In passing sentence, the Recorder accepted that this was a less serious offence than the one in relation to which the appellant had previously received 4 years' imprisonment. Nonetheless, it was a grave offence. The appellant was a dangerous offender, who posed a significant risk of serious harm to the public by virtue of the offence to which he had pleaded guilty and by virtue of his two previous convictions for robbery. In view of the circumstances of the offence, he did pose a significant risk because he had committed this offence so soon after being released from his previous sentence. In consequence, the Recorder concluded that life imprisonment was appropriate.
42. The appellant was born in January 1982. His previous convictions include two for robbery. A pre-sentence report assessed the risk of him re-offending as high and said that there was a high risk of him harming the public, though whether that would or would not be serious harm was not specifically addressed. The report said that he had shown little remorse in relation to the victim.
43. The grounds of appeal assert that the judge erred in imposing a life sentence. Furthermore, he had failed to warn counsel that he had this in mind. He failed to identify the aggravating features justifying the imposition of a life sentence. Furthermore, the judge erred in finding the appellant posed a significant risk of harm to the public and, in particular, in basing that view solely on the high risk of re-offending without referring to the level of likelihood of harm. The notional determinate sentence of 4 years is also challenged.
44. On the appellant's behalf, Miss Forshall conceded that there was a significant risk of the commission of further specified offences but challenged the Recorder's implicit, though not expressed, conclusion that there was a significant risk of serious harm. The appellant's two previous convictions for robbery, she pointed out, had involved minimal force in one case and, in the other, although the victim was young and a knife had been carried, the knife was concealed.
45. The pre-sentence report said there was always a risk of psychological harm in robbery, but in this case there was no evidence of such harm in relation to any of the offences committed by the appellant. Furthermore, the accepted basis of plea, she submitted, was entirely inconsistent with any harm, still less serious harm, to the present victim and no weapon had been carried by the appellant. On this basis, she submitted, the pattern of offending pointed, if anything, to decreasing rather than increasing risk of serious harm being caused by the appellant. Furthermore, she submitted, the present offence is not so serious as to justify a life sentence and the Recorder made no findings in his sentencing remarks to justify such a sentence.
46. For the Crown Mr Winter conceded that the life sentence could not stand.
47. In our judgment, the absence of material of any kind, demonstrating physical or psychological harm to any victim, and the fact that the pattern of previous offending when compared with the present offence is of diminishing seriousness, because no knife was carried on this occasion, mean that it would have been unreasonable, had the Recorder considered the point, to make the assumption under section 229(3) Although the author of the pre-sentence report was right to say that there is always a risk of psychological harm in robbery, it is not necessarily either a significant risk or a risk of serious harm; as we have earlier indicated the degree of both risk and harm must be evidenced. Furthermore, rapid repetition of offences in itself does not, as the Recorder suggested, demonstrate a significant risk of serious harm. Accordingly, we allow this appeal by quashing the life sentence. In the absence, as it seems to us, of a significant risk of serious harm, having regard to the matters to which we have referred, imprisonment for public protection is not appropriate. There will be a determinate sentence of 4 years as the Recorder indicated less 88 days served on remand. To that extent this appeal is allowed.
48. Winters: on 27th June 2005 at Birmingham Magistrates' Court, the appellant pleaded guilty and was committed to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000. On 25th July at Birmingham Crown Court, he was sentenced by His Honour Judge Faber to imprisonment for public protection, with a notional determinate term of 3 years, for sexual assault on a female, contrary to section 3 of the Sexual Offences Act 2003. His case has been referred to the Full Court by the Registrar.
49. The facts were that, at about 6.30 pm on 3rd June 2005, a woman was standing at a bus stop in Birmingham City Centre when the appellant approached her. Without saying anything, he seized her breasts with both hands, through her outer clothing. She told him to stop. He kept hold and then tried to tear her shirt off. The woman tried to get away. He swung her round by her shirt and she hit her head against the bus shelter. At that point, a bus driver who had seen the incident came to the woman's assistance. The appellant made off. The police were informed. The appellant was arrested later that day. He declined to comment.
50. The judge said that this was a very serious offence of its type. The appellant had acted in a very intimidating manner and put his hands on her breasts. He had persisted, although told to stop. She had tried to fight him off, and had been caused to strike her head against the bus shelter. The bus driver had intervened so the appellant had desisted though leaving the victim very frightened, distressed and intimidated. The judge said, rightly, that this was a specified offence. He said that when someone committed a serious specified offence the court had to consider whether there was a significant risk of serious harm. The contents of the pre-sentence report, the appellant's record and the matters advanced in mitigation on his behalf were considered. The material before the court included the fact that the appellant had told the probation officer that he had acted in a similar manner on two previous occasions.
51. The judge concluded that the previous offending showed a pattern of similar behaviour and this offence had been committed shortly after his release from a short custodial sentence. The defendant had failed to address his pattern of behaviour and alcoholism and had failed to co-operate with the probation service and to respond to community punishments in the past. The judge said that there was a high risk of him re-offending and that therefore there was a significant risk of serious harm and that therefore an indeterminate sentence for protection of the public would be imposed.
52. The appellant was born in October 1957. He has a considerable number of convictions for minor criminal behaviour, including criminal damage and being drunk and disorderly and, in May 2005, he was sentenced to 4 months' imprisonment for using threatening, abusive or insulting words or behaviour. That, apart from a sentence of 14 days' imprisonment imposed a few days before for criminal damage, was the only custodial sentence passed upon the offender. It is to be noted that his previous record did not include any specified offence.
53. There was a pre-sentence report which recommended a community order and assessed a high risk of re-offending and what was described in the report as a "moderate risk of general harm to the public". He was drunk at the time of the offence and was unable to explain why he had committed it.
54. The grounds of appeal complain that the judge was in error in imposing imprisonment for public protection, bearing in mind the absence of any conviction for a previous relevant offence, the nature and circumstances of this offence and such pattern of behaviour as emerged from his previous offending. It is said in the grounds that the information before the judge did not support an inference of a significant risk of serious harm to the public. The grounds concede that there was a significant risk from further specified offences being committed.
55. On the appellant's behalf Mr Tucker stressed the comparative triviality of the appellant's previous offending which started to occur in the appellant's forties when he turned to drink after a divorce. At the time of this offence he was living nearby to its commission in a Salvation Army hostel. He has no previous specified offences. He does not, submitted Mr Tucker, present a significant risk of serious harm. Mr Tucker drew attention to the terms of the pre-sentence report which, as we have indicated, do not identify a significant risk of serious harm.
56. For the Crown, Mr Winter highlighted the fact that the definition of serious harm in section 224, in referring to death or serious personal injury, focuses primarily on the consequences of violence and is inapt to embrace sexual offences save those of unusual gravity. The appellant, Mr Winter accepted, has no previous specified offences in his record and so is within section 229(2) and outwith the assumption within section 229(3).
57. In our judgment, nothing in this offence or the appellant's record supports an inference of significant risk of serious harm. The judge was wrong to infer a significant risk of serious harm merely because there was a high risk of re-offending. The appeal therefore is allowed. The sentence of imprisonment for public protection is quashed. A determinate sentence of 3 years, as contemplated by the learned judge and unchallenged in the grounds of appeal, is appropriate with credit for 55 days served on remand. That is the sentence which we substitute. To that extent, his appeal is allowed.
58. Carasco: on 23rd April 2005, at Greenwich Magistrates' Court, this appellant pleaded guilty and was committed to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000. On 24th May, at Woolwich Crown Court he was sentenced by His Honour Judge Norris to imprisonment for public protection for sexual assault on a female, contrary to section 3 of the Sexual Offences Act 2003. The notional determinate term identified was 4 years.
59. A Sexual Offences Prevention Order was imposed under section 104 of the Sexual Offences Act preventing him from taking any alcohol for the rest of his life. He appeals against sentence by leave of the Single Judge on grounds which, with the leave of the Court, were amended in the course of the hearing before us.
60. The facts were that, on 21st April 2005, a 16 year old girl was standing with friends at a bus stop in Lewisham. The appellant kept standing near them, pestering them and making a nuisance of himself. Initially the girls laughed at him. But when one girl turned her back on him, the appellant came up to her and tapped her on the arm. She ignored him. But he moved his hand and then touched her left breast. She turned round and saw him remove his hand and laugh. Her friends saw a police officer nearby. They gave a description of the appellant and he was found a short distance away and arrested.
61. In interview he made full admissions. He expressed his regret and he said that alcohol was the main reason for him offending.
62. In passing sentence the learned judge referred to the appellant's age and the fact that he had to be sentenced for yet another offence of indecent assault, this time on a 16 year old girl. The taking of alcohol, the judge said, had been the story of the appellant's life many times in the past. He had started offending when he was a juvenile and since he was 30 there had been a number of offences of indecency of one form or another. When he was in drink he could not resist some sort of sexual assault on someone near him and it was a very worrying state of affairs for him and the public at large. It was apparently common ground before the judge that the defendant, by his conduct, did give rise to a significant risk of further offences, causing serious harm. The judge concluded that a custodial term followed by an indefinite period on licence was therefore appropriate.
63. The judge referred, again, to the history of offending and identified the notional determinate sentence as 4 years. He imposed the condition with regard to abstinence from alcohol which we have earlier identified.
64. The appellant was born in September 1951. He has a considerable number of previous convictions for a wide variety of offences committed over a period of almost 40 years, many of them for burglary and other offences of dishonesty. There are, however, eight previous convictions for indecent assault on a female, one for gross indecency with a child and one for indecent exposure. In 1997 he was sentenced to 6 months' imprisonment for indecent assault on a female under 16 and in April 2002 he was sentenced to 12 months' imprisonment for indecent assault on a female under 14.
65. The pre-sentence report identified a high risk of re-offending but did not address serious harm. The defendant acknowledged that his behaviour had been inappropriate and was likely to have caused the victim distress. He had been very drunk at the time.
66. The grounds of appeal, as originally drafted, challenged the propriety of the 4 year determinate term but, in the course of the hearing before us, the court granted leave to challenge the sentence of imprisonment for public protection.
67. On the appellant's behalf, Mr McDonagh submitted that such a sentence, despite whatever concessions he may inappropriately have made in the court below, was not, on reflection appropriate. He also challenged the 4 year term as being too long. On instructions, he abandoned any challenge in this Court to the Sexual Offences Prevention Order and the condition for alcohol abstinence to which we have referred. Mr McDonagh submitted that, although the appellant has a substantial record, in particular, of persistent sexual offending at a low level for over 20 years, he has not during that period received, in relation to that conduct, a sentence longer than 12 months and the maximum sentence he has ever received for a sexual offence was 21 months in 1982.
68. Mr Winter, for the Crown, submitted that, although the public clearly needs protecting from this appellant in view of his continuing repetitive offending, an indeterminate sentence of the kind imposed is not appropriate. Repetitive minor offending does not, he submitted, provide of itself a basis for inferring a future significant risk of serious harm, particularly in the absence of any evidence that any of the victims of his offences, albeit young, have suffered harm of a serious kind. Indeed, as Mr Winter points out, the level of sentences imposed for the past offences is incompatible with a suggestion that serious harm had occurred to the victims. It is to be noted that the pre-sentence report, as we have indicated, did not specifically address, still less identify, a significant risk of serious harm.
69. In our judgment, there was here, despite the concessions made in the court below, no proper basis for imposing imprisonment for public protection on the basis of a significant risk of serious harm. We accept the substance of the submissions made to us by both Mr McDonagh and Mr Winter. Accordingly, the appeal is allowed. The sentence of imprisonment for public protection is quashed. Furthermore, we are unpersuaded that a notional determinate sentence of 4 years was necessary for this offence. Albeit the age of the victim was undoubtedly an aggravating factor, the degree of indecency was relatively minor. We accordingly, in quashing the sentence of imprisonment for public protection, substitute a determinate sentence of two-and-a-half years' imprisonment with credit to be given for 3 days served on remand. To that extent, Carasco's appeal is allowed.
70. Feihn: on 5th August 2005 at Croydon Crown Court, this appellant pleaded guilty to count 2 in the indictment, namely possession of an imitation firearm with intent to cause fear of violence, contrary to section 16A of the Firearms Act 1968. A not guilty verdict on count 1 of putting a person in fear of violence by harassment was entered under section 17 of the Criminal Justice Act 1967. His Honour Judge Macrae imposed a sentence of imprisonment for public protection with a notional determinate term of 3 years. This case was referred to the Full Court by the Registrar.
71. The facts were these. The appellant had, for some 6 months, been in a relationship with an adult woman. She terminated it in March 2005. The appellant took this badly. On 22nd April he went to her home address in Croydon. When she opened the door, he pushed inside and she fell on the sofa. He produced a silver handgun which he pointed at her throat and said: "You'll fucking listen to me now, you've ruined my life so I'm going to ruin yours. I had everything and you've ruined it." Undaunted, the lady seized the gun, pushed the barrel down and struck the appellant with the handset of a nearby telephone. In response, the appellant pulled out a kitchen knife. He said: "You stupid cow. Do you want me to use this, you're pushing me to use this." The lady telephoned the police. The appellant left.
72. The silver handgun was found about a month later at the appellant's father's home.
73. On 30th May the appellant was arrested. In interview, he denied being in possession of a knife or a firearm during the course of the incident. The judge, in passing sentence, said that the offence was a specified offence, under section 224 but section 229, in relation to the assessment of dangerousness was, as he put it, "not being relied on". He referred to the production of the firearm and knife and he said that a custodial sentence for the protection of the public had to be passed. Credit would be given for the plea of guilty and the notional determinate sentence would be 3 years, which he later clarified as meaning that 18 months would be served less time spent on remand.
74. The appellant was born in March 1972. He has a previous conviction for robbery, one for attempted robbery and one for possessing an offensive weapon. Those three offences were dealt with, in 1988, by way of conditional discharges and fines. Since that time he has had non-specified convictions for burglary and theft, the most recent of which was in 1994 when a probation order was made. He has a caution in July 2003 for three offences of destroying or damaging property of less than £5,000 in value.
75. There was before the sentencing judge a medical report indicating that the appellant is a poorly controlled diabetic who now, in consequence, suffers complications. There was also before the judge a letter from the appellant's father.
76. The grounds of appeal assert that the judge was wrong to find that the appellant posed a significant risk of causing serious harm. An indeterminate sentence for public protection was inappropriate, whether in the light of the circumstances of the present offence or of his previous record.
77. Before this Court, Mr Jones made no complaint about the notional determinate sentence but he submitted that imprisonment for public protection was inappropriate. The judge, he said, was not entitled to disregard section 229(3), in view of the previous specified offence of robbery in 1988. But, in relation to the present offence, there was no violence by the appellant, even when he was struck with the telephone by the victim. There was no evidence of physical or psychological harm to the victim and the appellant's record afforded no basis for predicting serious harm. There had been no conviction of any kind for more than 10 years and the cautions in 2003 were afforded no basis for an inference of serious harm. Mr Winter, for the Crown, rightly stressed the importance of sentencers complying with section 229(3). But he submitted that, even had the judge considered the assumption in that subsection, he could not reasonably have concluded that an offence of robbery, resulting in a £40 fine 17 years ago, gave rise to a risk of serious harm then or in the future. The judge had relied on the imitation firearm and the knife in the instant case, but Mr Winter submitted that the use of an imitation firearm (as this was) merely to threaten and not used for any physical purpose upon the victim, could not support the inference of death or serious personal injury which section 224 requires. The knife, as Mr Winter points out, had not been taken to the premises by the appellant: it belonged there. Furthermore, as Mr Winter pointed out, no pre-sentence report had been obtained. In this case it would have been particularly pertinent to obtain one in order properly to investigate whether, while he was in custody, the appellant had been able to resolve the issues which he had with his former girlfriend.
78. There is, in our judgment, force in all these submissions made by both counsel. This was not a case calling for imprisonment for public protection. The circumstances of the offence and the appellant's record, as it seems to us, can be regarded as reasonably defying the assumption in section 229(3). Furthermore, without a pre-sentence report the judge ought not to have concluded, by reference to the material before him, that there was a significant risk of serious harm. Accordingly Feihn's appeal is allowed. The sentence of imprisonment for public protection is quashed. In its place there will be a determinate sentence of 3 years' imprisonment with credit to be given for 66 days served on remand.
79. Wright: on 12th August 2005 at Derby Crown Court, before His Honour Judge Hamilton, this appellant pleaded guilty to assault by penetration, contrary to section 2 of the Sexual Offences Act 2003 and, on 26th August, he was sentenced to imprisonment for public protection, with a notional determinate term of 2 years. The judge also purported to say that the appellant would be on licence for 10 years after his release and he declined to make a Sex Offender's Prevention Order, ostensibly on the ground that the victim was not under 18. The case has been referred to the Full Court by the Registrar.
80. The facts were these. On the evening of 24th June 2005 the female victim was out drinking with friends in Sheffield. Her boyfriend had an altercation with another man during the evening. This led to the police being called and her boyfriend being arrested. The victim of this offence was very distressed, but later, on receiving a call from a friend inviting her to stay the night and offering her a lift to the Chesterfield area, she agreed to this arrangement and was picked up in a vehicle and sat in the back. One of those people in the vehicle was the appellant, whom she knew. He tried to put his arms round her but she brushed him off. They arrived at her friend's house and drinking continued. At about 2.30 in the morning everyone retired to bed, leaving the appellant downstairs, he apparently having fallen asleep in a chair. About 3 hours later the victim heard her bedroom door creak and realised that the appellant had come in. On top of the duvet he lay down fully clothed. The woman was wearing her underwear. The appellant put his hand beneath the duvet and touched her vagina beneath her underwear. She pushed him away and told him to stop. He apologised. She was upset. He did not leave the room. Then she heard the sound of a belt buckle. The appellant again laid down next to her and he repeated what he had done before. She asked him to stop; he told her to stop wriggling otherwise "he would stick his cock up her". She got up, got dressed and went downstairs. She was very upset. The appellant followed her. She told him to leave her alone. She complained to the police about a week later. The appellant was thereafter arrested.
81. In interview he said that, since about 11.00 am on 24th June, he had been drinking. He could not recall the car journey to Chesterfield or anything else. He accepted that he might have assaulted the victim in the way she described but he simply could not remember.
82. In passing sentence, the judge referred to the plea of guilty at the earliest opportunity and to the fact that he had to consider whether there was a significant risk of serious harm to members of the public occasioned by the commission of further similar offences by the defendant. The judge pointed out that the defendant had previously been cautioned for indecently assaulting two girls and had been made the subject of a Sex Offender Order which he had twice breached. The most serious aspect of the present offence was that he had committed it while on home release from prison. It seemed, said the judge, that he did amount to a danger and there was a significant risk of him committing similar offences. He had a poor record of compliance with both custodial and community sentences, but his main problem was alcohol. Prior to the change in the law, the judge said, he would have imposed an extended sentence for 3 years to undertake a Sex Offender's Programme. The only way, now, to impose such a sentence was to impose one of imprisonment for the protection of the public. He also, as we indicated at an earlier stage, said that the offender would be on licence for 10 years after his release and that a Sex Offender Prevention Order would not be made because the victim was under 18.
83. The appellant was born in January 1979. He has two previous convictions for failing to comply with the notification requirements of a Sex Offender Order and he has one for breach of a Sex Offender Order. He was placed on the Sex Offender's Registrar for 5 years in May 2000, when he was cautioned for two offences of indecent assault on a female. In February 2005 he had been sentenced to a total of 4 months and 31 days for breach of licence and failing to comply with notification requirements. He had been released on licence from that sentence on 22nd April, that is to say, just 2 months before the present offence was committed.
84. The pre-sentence report before the judge indicated the appellant's poor record of compliance with previous sentences and also referred to alcohol intoxication as a feature of his offending: he admitted being heavily dependent on alcohol. The report indicated that he was likely to pose a significant risk to girls and young women in the future and there was a reference to him having supplied some victims with alcohol. The report also referred to his inability to remember the circumstances of his offending due to intoxication.
85. The grounds of appeal assert that a sentence of imprisonment for public protection was inappropriate.
86. On the appellant's behalf Mr Stockwell accepted before us that the appellant's conviction for affray resulting in a 9 month sentence in April 2004 was a relevant specified offence for the purposes of the Criminal Justice Act 2003, but the two cautions for indecent assault in May 2000 were not convictions for the purposes of section 229(3). The present offence had been committed while on licence, as we have described and, although it was unpleasant, it involved no violence and the period and degree of penetration had both been short. Although the victim was clearly upset, there was no evidence suggesting that she had suffered serious harm from this misconduct. Although the defendant had been persistent in what he had done, he had, more than once, desisted when told to stop. The only conviction in the defendant's record for violence was that for affray, to which we have referred and there were no convictions for sexual offences. Furthermore, the fact that he had been cautioned in relation to the indecent assault allegations in May 2000 suggested the absence of any serious harm on those occasions. No pattern of offending suggesting serious harm was demonstrated, submitted Mr Stockwell, and neither the pre-sentence report nor the judge in passing sentence addressed the question of serious harm.
87. Mr Winter submitted that the appellant posed a significant risk to the public, but not of serious harm. Had the judge addressed section 229(3), which he did not, he must, Mr Winter submitted, have concluded that it was unreasonable to find a significant risk of serious harm. Furthermore, he had no power to impose the 10 year licence provision which he purported to impose and an order under the Sex Offenders Prevention Act 2003, section 104 is, contrary to the judge's assumption, available regardless of the age of the victim.
88. All of those submissions we accept. In consequence, this appeal is allowed. The sentence of imprisonment for public protection is quashed. There will be a determinate sentence of 2 years' imprisonment with credit to be given for 39 days served on remand.
89. Collier: on 4th July 2005 at Cardiff Crown Court, this appellant pleaded guilty to a number of offences and, on 21st July, he was sentenced by His Honour Judge Durham Hall QC as follows: on count 3, for robbery, to imprisonment for public protection; on count 2, for assault occasioning actual bodily harm, to 2 years' imprisonment concurrently; on count 4, for theft, to 12 months' imprisonment concurrently, and on count 1, for driving a conveyance taken without authority, to 5 months concurrently. The notional determinate sentence imposed in relation to robbery was four-and-a-half years.
90. The appellant, it is to be noted, was 18 when he pleaded guilty and therefore he should in any event have been sentenced to detention for public protection rather than imprisonment, the concurrent terms of detention being in a young offender institution. (See R v Danga 13 Cr App R(S) 408). The Registrar has referred this case to this Court.
91. The facts were that, at about 10.50 pm on 8th May 2005, a pizza delivery driver called Higgins was making a delivery in Cardiff. He realised on approaching that he was at the wrong address. He was about to return to his car when he saw the appellant driving it away, for a few metres only, because it stalled. He approached the car and had a short conversation with the appellant through the driver's window. The appellant got out and became aggressive and abusive, punching the other man several times in the face, causing cuts to his lips and then repeatedly punching him in the body and saying: "Give me your fucking car". He tried unsuccessfully to take the keys out of the ignition. The appellant kicked the car in several places causing a significant amount of damage. He also opened the boot and took out a tool kit and stereo. Those events together gave rise to counts 1, 2 and 4.
92. At about 11.45 the same evening another man was walking in the same vicinity. He noticed the appellant and a woman walking towards him. The appellant blocked his way and said: "Give me your mobile telephone". The man said he did not have one. The appellant said: "Give me your 'phone or I'll knock you down." At that stage the complainant threw his telephone on the grass and ran off. That gave rise to count 3.
93. Three days later the appellant was arrested. In interview he declined to comment.
94. The learned judge in passing sentence referred to the fact that the appellant was approaching his 19th birthday and had pleaded guilty to a series of offences causing the court grave concern. His plea of guilty had been at the earliest opportunity. He had an unenviable record for one so young and had been on licence from the previous sentence when these offences were committed. He had not learned anything during his progression through the courts. He had been utterly out of control when he attacked Higgins and stole from him. That was an offence akin to robbery, and shortly afterwards, he had robbed the other young man.
95. He presented, in the view of the probation officer, a high risk of reoffending and the people most at risk from him were those he thought he could overpower or whom he came into conflict with. That risk would be increased significantly when he was in the company of like-minded people. The robbery itself was a serious offence and it was apparent that the appellant posed a significant risk of causing serious harm to members of the public by the commission of further offences. Life imprisonment was inappropriate but imprisonment for public protection was requisite.
96. The appellant has three previous convictions for assault occasioning actual bodily harm, one for attempted robbery and one for common assault. He was born on 25th September 1986. In April 2003 he was dealt with for an offence of common assault in January 2003, when he had repeatedly slapped the face of his former girlfriend. No visible injuries had been caused. In February 2004, this time for assault occasioning actual bodily harm, a community punishment order was imposed for an offence in July 2003, which involved an unprovoked attack on his girlfriend, causing injuries to her knees and her left eye. In May 2003 he had been disturbed in the process of attempted burglary. In July 2003 he had attempted to push the complainant off a pedal cycle and, when approached by the complainant's mother, he had assaulted her. A little later the same day he had head-butted the complainant whose bicycle he had earlier sought to take. In June 2004 he had struck a complainant in the face with what is described as a "lump" causing a cut to the nose and under the eye. In relation to that, he was dealt with for assault occasioning actual bodily harm in August 2004 and a 12 month detention and training order was made for concurrently with an 18 month detention and training order for another offence.
97. A pre-sentence report described the risk of him reoffending as relatively high and contained the phrase, referred to by the sentencing judge, in relation to the people most at risk from him being those whom he thought he could overpower.
98. The grounds of appeal challenge the imposition of an indeterminate sentence for public protection on the basis that a conclusion of significant risk of serious harm was not reasonable, bearing in mind the lack of use of a weapon so far as the instant offences are concerned.
99. On behalf of the appellant Mr Hawkins submitted that imprisonment or detention for public protection was inappropriate and the notional sentence of four-and-a-half years was too long. He submitted that the appellant's record, including the convictions of three offences of assault occasioning actual bodily harm and attempted robbery, albeit unedifying, was not such as to give rise to a reasonable conclusion in relation to the assumption under section 229(3), of the possibility of serious harm. Furthermore, he submitted that the circumstances of the present robbery, involving no weapon and merely a threat of violence rather than actual violence, did not demonstrate a significant risk of serious harm.
100. Mr Winter, for the Crown, posed for the Court's consideration the question as to whether an escalation of risk to serious harm can properly be the subject of inference from a multiplicity of comparatively minor offences. In our judgment, that can be a proper inference, depending on all the circumstances. In the present case, the pre-sentence report to which we have already referred was of considerable significance, particularly in the light of the statutory assumption. It seems to us that it cannot be said that a finding of significant risk of serious harm was unreasonable. The appeal against the indeterminate sentence for robbery is therefore dismissed though the sentence must be expressed as detention rather than imprisonment for further protection. We see nothing wrong in a notional determinate sentence of four-and-a-half years, which will be detention in a young offender institution. The concurrent sentence of 2 years for assault occasioning actual bodily harm was, as Mr Winter points out, unlawful because section 227 mandatorily requires an extended sentence for a specified offence where there is a significant risk of serious harm. In all the circumstances we quash that 2 year sentence and impose in place of it a concurrent extended sentence of 4 years detention in a young offender institution, the custodial term of which is 2 years and the extended licence period of which is 2 years.
101. We comment, in passing, that neither the sentencing judge, nor this Court were provided (as they should have been) with any information as to the unexpired portion of the appellant's licence at the time of these offences. Save for varying the way in which the sentences are expressed and its sentence in relation to the assault occasioning actual bodily harm, this appeal is accordingly dismissed.
102. Sheppard: on 6th June 2005 at Winchester Crown Court, this appellant pleaded guilty to an offence of wounding with intent and on 29th July he was sentenced at that court by His Honour Judge Brodrick to detention for public protection. A term of four-and-a-half years was identified as the notional determinate term. The case has been referred to the Court by the Registrar.
103. The facts were these. On 16th April 2005 a 20 year old man called Wilson went to an ice rink in Basingstoke to celebrate the birthday of a friend. The appellant also attended. The party was in good mood although drink had been taken. Mr Wilson had an argument with his girlfriend. He was a little the worse for drink and was spoken to by the ice rink manager, twice. He apologised. There was a third occasion, when he drew the attention of the management to him, and then a fourth when he was ushered out of the building. He was then restrained by a group of people with whom he argued. The appellant approached. Wilson punched him, but he was still being restrained by others and pointing his finger at the appellant. While he was being restrained, the appellant lunged towards him and stabbed him with a knife in the right eye. In consequence, he became deeply unconscious. A CT scan revealed a serious brain injury. He was left blind in his eye and there was a danger that the other eye would be compromised. He lost his sense of smell and will have permanent defects in limb function. He has major problems with higher intellectual functions. His life has been changed for ever. He will never be able to live independently. He may die prematurely.
104. The appellant ran off and hid, disposing of the knife, but it was recovered. He eventually handed himself to the police. In interview, he admitted stabbing Wilson and agreed that his actions were not justified. He had been drunk at the time.
105. The basis of his plea was that, prior to the offence, he had consumed half a bottle of Jack Daniels together with other alcohol. The consumption of alcohol is not a mitigating feature. It is, as the Sentencing Guidelines Council have made clear, an aggravating feature (Guideline on seriousness paragraph 1.22). He was assaulted by the victim. He intended to cause serious bodily harm but he did not aim for the victim's eye or intend the grave extent of the injuries which we have described. In passing sentence, the judge commented that the plea of guilty to wounding with intent had been entered at the first opportunity. He had earlier turned himself in to the police and was entitled to full credit for his plea. But, on the night in question, while carrying a knife, he had taken large quantities of drink. That was not a happy or sensible combination. Indeed, it could be seen as an aggravating feature.
106. It was accepted that insults had been traded with Wilson, but the appellant had taken out a knife, opened it and made one swift stabbing or slashing motion at Wilson's face, penetrating his eye, with the consequences to which we have referred. The judge said that this was an extremely serious offence and the appellant's record showed he had two previous convictions for assault occasioning actual bodily harm and cautions for battery. Accordingly, he qualified for a sentence of detention for public protection. The probation report indicated that he did represent a significant danger of causing serious harm to the public unless and until work was done to help him mend his ways. An extremely lengthy psychological report in some respects suggested the contrary. The judge was critical of the thinking in that report, although it may be that its terms were confined to whether or not there was a psychological basis for reaching a conclusion as to the risk of serious harm: the psychologist's view was that there was not. The judge concluded that this was a classic case for the invocation of the new powers, bearing in mind the significant risk of further similar offences and serious harm until such time as appropriate treatment had taken place. It is apparent that the judge expressly addressed the relevant issues, save the possibility of an extended sentence to which we shall return.
107. The appellant was born in April 1988. He was not quite 17 at the time of the offence. His record includes the two previous convictions for assault occasioning actual bodily harm, to which we have referred, in relation to which, on 3rd November 2004, he was sentenced to a 9 months referral order. He also had two cautions for battery.
108. The pre-sentence report indicated, as we have said, that the appellant posed a serious risk of harm to the public. The pattern of his offending was a cause for concern. Alcohol misuse was a factor which had clouded his judgment. He had expressed remorse and shame for his action. The psychological report referred to his immaturity but he did not suffer from any mental illness.
109. The grounds of appeal assert that the sentence was manifestly excessive in view of his age, admissions to the police, early plea, remorse and the fact that he had handed himself into the police.
110. The pre-sentence report was based on historical offending behaviour and an extended sentence would have been available as an appropriate alternative to the sentence passed.
111. On behalf of this appellant, Mr Lickley submitted that, in the light of the historical special protection for young offenders, recognised in the Criminal Justice Act 2003, by the difference between section 229(2) and 229(3), detention for public protection was not necessary and an extended sentence might have been appropriate. Mr Lickley accepted, as he was bound to do, the great seriousness of this offence and its impact on the victim. But Mr Lickley stressed the view of Dr Indow that there was no psychological basis for suggesting dangerousness. Mr Lickley stressed that the appellant is still only 17 and it is particularly hard for one so young not to know when, or possibly whether, he may be released. Mr Lickley accepted that, although the judge's sentencing remarks do not refer to the possibility of an extended sentence, that was clearly a possibility present to the judge's mind because, as the transcript shows, it was referred to at the end of the prosecution's opening of the facts.
112. Mr Winter, for the Crown, submitted that the focus of section 224 on death or serious personal injury suggests that this is precisely the sort of offence which Parliament had in mind for an indeterminate sentence for public protection. In the absence of any time scale for the resolution of the appellant's problems, an extended sentence would not be adequate. In our judgment, it would have been preferable if the learned judge had set out his reasons for imposing a sentence under section 226 rather than an extended sentence under section 228. But, as it seems to us, his conclusion was correct, in the light of the information before him which he properly identified.
113. The appellant was carrying a knife and had been drinking. There was an obvious risk therefore of serious harm in the future based both on that offence and the specified offences of violence in the appellant's recent record which indicated a recent pattern of violent offending. In addition, there is the conclusion in the pre-sentence report that he cannot manage his anger particularly when in drink.
114. In our judgment, the sentence of detention for protection of the public was, in all the circumstances, necessary and appropriate and, in this Court, is unimpeachable. Accordingly Sheppard's appeal is dismissed.
115. D: on 17th June 2005 at Warrington Crown Court, this appellant pleaded guilty to robbery. On 8th July he was sentenced by His Honour Judge Hale to detention for public protection with a notional determinate period of 7 years. His case has been referred to this Court by the Registrar.
116. The facts were that, on 3rd June 2005, an 18 year old student was walking back to Warrington Station having done some shopping. He heard the appellant, who was behind him shout "Oi" and, when he looked round, he saw the appellant, whom he did not know. The appellant, who initially was some distance behind, caught up with the student and they stopped and had a brief conversation, which the student found rather strange as the appellant asked him where he was going and why. But then the appellant produced a large kitchen knife from his trousers. The handle was wrapped in a tea towel and the appellant made a number of threats. He told the student to step back. He then produced a Balaclava and said the student was to hand over his chain and wallet, which contained £50, and a ring. The appellant found the student's identification in his wallet and said: "If you do anything stupid it's not worth your while." He told the student not to go to the police, that he was being watched and the appellant then left.
117. The following day, the police were contacted. The robbery had been caught on CCTV. Later that day the appellant was arrested. He denied the offence in interview but was picked out on a VIPER identification parade, whereupon he made full and frank admissions. He added that, at the time of the offence, he had been high on a cocktail of drugs and alcohol.
118. The learned judge, in passing sentence, referred to the appellant being 16 at the time and having had an appalling start to his life. But he had not helped himself by committing a string of robberies over the years. The court had some sympathy but also had to protect the public. He had threatened the public on a number of occasions. He indicated in interview that he would not think twice about using a knife if someone resisted. In the judge's view, this case clearly met the qualifications for a sentence for public protection. There were real aspects of dangerousness in his background and in his approach. An extended sentence would not fit the case because it was not known how long an extension ought to be.
119. On the appellant's behalf, Mr Clarke conceded that this appellant fulfils the criteria for dangerousness under section 229 and that the pre-sentence report, prepared by someone who knew the appellant, described his behaviour as "entrenched". He submitted, however, that an extended sentence would have sufficed and that a notional determinate sentence of the order imposed was too long. Mr Clarke does not before us pursue one of the grounds of appeal which alleges an incompatibility between the legislation provided for this sentence and Article 5 of the European Convention on Human Rights.
120. The record of the appellant includes five convictions for robbery and two for attempted robbery within the last 2 years.
121. The pre-sentence report, in addition to the extract to which we have already referred, describes the appellant as displaying no victim empathy. He is a vulnerable young man who will continue to commit serious offences.
122. So far as Mr Clarke's first submission is concerned, namely that an extended sentence would have sufficed, we reject that proposition. The appellant, as we have said, indicated in his interview with the police that resistance by a victim would lead to use of a knife. Furthermore, as the judge rightly recognised, the appellant, in the light of the pre-sentence report upon him, is so far away from confronting his criminality and violence that it is presently impossible to gauge how long a licence period would be needed if an extended sentence were to be passed. That, in our judgment, is a highly material consideration when concluding that an extended sentence is inappropriate.
123. As to the length of the notional determinate sentence, however, we think that 7 years on a plea was excessive. We quash that term and substitute a period of five years, so that the minimum term to be served will be two-and-a-half years less 35 days on remand. To that limited extent only his appeal is allowed.
124. Smith: on 21st July 2005 at Cambridge Crown Court, the appellant pleaded guilty to a number of offences. He was sentenced by His Honour Judge Hawkesworth in the following way: on count 2, for assault occasioning actual bodily harm, an extended sentence of three-and-a-half years was passed pursuant to section 227, made up of a custodial term of 18 months and extension period of licence of 2 years. On count 4, for aggravated vehicle taking, the sentence was 12 months' imprisonment consecutively. On count 5, the sentence was 3 months consecutively for driving while disqualified and on count 6, for theft, the sentence was 3 months also consecutively. The total sentence therefore purported to be an extended sentence of 5 years, consisting of a total custodial term of 3 years and an extended period of licence of 2 years. He was also disqualified from driving for 2 years. The case has been referred to the Full Court by the Registrar.
125. The circumstances were these. At 10.30 on the evening of 25th April 2005 a man walking along a street in Cambridge heard the sound of breaking glass. He looked round and saw the appellant standing next to his car. The car's window was broken. He approached the appellant and asked what he was doing. The appellant's response was to punch him in the face. That gave rise to count 2. The man ran off and was chased for a short distance by the appellant. Someone else had heard the sound of breaking glass and saw the punch being delivered. He called the police. The appellant had stolen £2 from the parked car. His movements were recorded on CCTV camera. Another incident took place when a car alarm was set-off and that was reported to the police and gave rise to count 6.
126. Some time later, the appellant stole a Ford Corsa motorcar and drove it off. It was recovered at about 1.30 the following morning having collided with the gates of a cricket ground. Those gates were considerably damaged as a result and that gave rise to counts 4 and 5.
127. A witness had heard the crash and saw the appellant running off. The appellant was tracked to a bus station through CCTV cameras.
128. In interview he declined to comment. He was subsequently identified by three witnesses.
129. The judge, in passing sentence, referred to the fact that, on the day following his release from the previous sentence, he had nowhere to go. He had gone to Cambridge, got drunk and broken into a car to steal from it. He had an appalling record for offences not only of dishonesty but more particularly of violence. The provisions of section 227 had to be considered because the assault occasioning actual bodily harm was a specified offence.
130. Having regard to his record and the fact that he had committed these offences the day after his release and one of them involved an assault on an entirely innocent member of the public, there was, the judge concluded, a risk of serious harm to members of the public from the commission of further offences, calling, in consequence, for an extended sentence for the assault. Consecutive sentences would be imposed in relation to the other offences.
131. The appellant was born in March 1977. He has three previous convictions for assault occasioning actual bodily harm and one for common assault.
132. The grounds of appeal contend that the extended sentence was manifestly excessive and inappropriate, particularly without the benefit of a pre-sentence report as to the risk which he posed. In any event, 18 months was of itself too long, particularly in conjunction with the sentences imposed for other offences.
133. Mr Shelley, on behalf of the appellant, submitted that, in his past, the appellant has caused no serious harm to anyone and these offences in themselves did not demonstrate dangerousness. No pre-sentence report was obtained. A custodial term of 3 years was, in any event, excessive for these offences on a guilty plea.
134. Mr Winter, for the Crown, rightly pointed out that the several previous offences, including offences of assault occasioning actual bodily harm and one of affray are specified offences and section 229(3) is therefore engaged. There was clearly a significant risk of re-offending, submitted Mr Winter, but it was not clear, particularly in the absence of a pre-sentence report, that a significant risk of serious harm could reasonably be concluded, bearing in mind the section 224 requirement for death or serious personal injury. As we pointed out earlier in this judgment, sections 224 and 229 have to be read together. In our judgment, in the light of all the material to which we have referred, it was unreasonable to conclude, particularly in the absence of a pre-sentence report, that these offences and this appellant's record and pattern of offending at a relatively minor level gave rise to a significant risk of serious harm. It was also inappropriate to impose sentences consecutively to an extended sentenced. Accordingly, this appeal is allowed. The extended sentence is quashed. We also accept that, on guilty pleas, a custodial term of 3 years was excessive. We shall accordingly quash the 18 months for the offence of assault occasioning actual bodily harm and substitute for it a sentence of 12 months. The other sentences of 12, 3 and 3 months will run consecutively to the 12 months for the assault occasioning actual bodily harm. The total sentence will therefore be one of two-and-a-half years' imprisonment. To that extent, this appeal is allowed.
135. Armitage and Glave: on 3rd August 2005, Armitage pleaded guilty on rearraignment at Sheffield Crown Court. On 15th August Glave also pleaded guilty. On 13th September they were both sentenced by His Honour Judge Lawler QC in the following way: Armitage, who pleaded guilty to count 1 of attempted robbery, received an extended sentence of 4 years, pursuant to section 228, consisting of a custodial term of 3 years and an extended licence period of 12 months. Glave, who pleaded guilty to unlawful wounding on count 3, received an extended sentence of 3 years made up of a custodial term of 2 years' detention and an extended licence period of 12 months. The case has been referred to the Full Court by the Registrar.
136. The facts were these. At about midnight on 4th June 2005 a Mr Cade was walking home with three friends. He was pushing a bicycle. He was approached by Armitage who picked a fight with him and demanded his bicycle. He refused. Armitage took off his T-shirt, tensed his muscles and began to scream in a high pitched voice. He seized Mr Cade and the two grappled, with Armitage swinging punches. At that point Grave approached. He was carrying a beer bottle which he used to strike Cade on the forehead. The bottle broke on impact. Armitage then kicked Cade in the face. Cade retreated after feeling another blow on his back. When he was four or five metres away Grave threw the bottle at him. It was said, though this was in dispute, that Glave had picked up a metal bar and threatened one of Cade's companions with it.
137. In hospital Mr Cade received six stitches in a 2 centimetre laceration above his left eyebrow.
138. In passing sentence, the judge referred to the late pleas, Armitage having unexpectedly pleaded to attempted robbery and had pleading guilty to unlawful wounding and the day fixed for trial. The judge had seen the victim's residual scar which was nasty and visible that day. The judge rightly described this as an unpleasant incident giving rise to unnecessary and gratuitous violence in relation to a perfectly innocent young man minding his own business. It was worrying that Glave had refused to discuss the matter with the probation officer, although the court had been told he was remorseful. Although Armitage had previous convictions he was not, as the judge put it, "heavily convicted". One of those convictions however was for assault occasioning actual bodily harm and that involved a nasty punching and kicking assault on a man on the ground.
139. Having been sentenced to a referral order for that matter, the very next day he committed this offence. So custody was inevitable. He would receive some credit for his late plea. It was accepted that he was remorseful and had not served a custodial sentence before.
140. Glave, who was 16, had two previous convictions, one of which was for affray. He had breached an Action Plan Order in relation to that and a Supervision Order had been imposed instead which he had successfully completed. The judge said that, equally in his case, only a custodial sentence could be justified. He would receive some credit for his plea. Account was taken of his age, the fact that he had not served a custodial sentence before and his positive behaviour whilst on bail.
141. Referring to the new sentencing regime, the judge pointed out that they had both committed offences of violence before. He concluded that Armitage posed a significant risk of causing serious harm to members of the public. An extended sentence would however be sufficient to protect the public from that significant risk. The position in Glave's case was exactly the same.
142. Armitage was born on 11th December 1987 and Glave on 13th March 1989. They have the convictions and the absence from their records of custodial terms to which reference has already been made.
143. The pre-sentence report on Armitage described him as intelligent but somewhat angry and challenging. It referred to a disappointing start to his referral order but he had subsequently kept appointments with his allocated officer, albeit not always punctually. He was not a prolific offender and he was full of remorse. The pre-sentence report on Glave recommended an extended sentence on the basis that he would not discuss the offence and that was of concern. It was said that there might be some risk of him re-offending.
144. The grounds of appeal contend in relation to both appellants that an extended sentence was not warranted and that the custodial terms imposed were, in both cases, in any event excessive.
145. For Armitage, Mr Brooke submitted that the scar did not amount to serious harm and, in any event, there was no evidence that Armitage had caused it. What he characterised as "squabbling over a bicycle" did not support a conclusion of dangerousness nor did Armitage's previous conviction for assault occasioning actual bodily harm. Mr Brooke stressed Armitage's youth, the absence of any weapon when the offence was committed, the presence of remorse on his part, the appalling personal background outlined in the pre-sentence report, including him having, at the age 15, to look after his mother who had been badly affected by a series of strokes. Mr Brooke pointed out that the present experience of custody is Armitage's first and he submitted that it has had a profound affect upon him.
146. For Glave, Miss Eastwood stressed the significance of the passage of time in relation to a 16 year old. The fact that the scar was visible to the judge 2 months after the wound had been inflicted did not mean that it would necessarily be permanent. Still less did it give rise to serious injury. Because Glave had been committed to the Crown Court by the Youth Court, the pre-sentence report was prepared on the basis that an assessment of dangerousness had already been made by the Youth Court. The unwillingness of the appellant to discuss the offence, which we have indicated was relied on by the author of the report as an indication of dangerousness should, Miss Eastwood submitted, more properly be regarded as a sign of immaturity. She submitted that a detention and training order would have been much more appropriate.
147. Mr Winter, for the Crown, rightly points out that this case highlights one of the anomalies in the new regime. Robbery is a serious offence but it may not cause serious harm. Unlawful wounding, on the other hand, is not a serious offence but it may cause serious harm. It is also unclear, Mr Winter submitted, whether an extended period of licence begins to run on release from custody or at the beginning of the end of the ordinary period of licence. It is unnecessary for us to resolve this particular point today because of the view which we have formed that extended sentences were not here appropriate.
148. In our judgment, there was no basis for concluding that either of these two appellants is dangerous within the meaning of these provisions. Accordingly the appeals are allowed. The extended sentences are quashed. Taking into account the statutory limitations as to the length of detention and training orders, but also the need to reflect, so far as is possible, both the pleas of guilty and the differing levels of culpability of these two appellants, we pass, in relation to Armitage, a detention and training order for 2 years and in relation to Glave, a detention and training order for 18 months. Their appeals, in those respects, allowed.
149. Edwards: on 6th May 2005, at East Cornwall Magistrates' Court, this appellant pleaded guilty and was committed to the Crown Court for sentence under section 3 of the Powers of Criminal Court 2000. He was sentenced at Truro Crown Court on 9th June 2005, by Mr Recorder Sellick to 6 months' detention in a young offender institution suspended for 18 months. He was ordered to perform 200 hours of unpaid work in the community and a curfew order from 9.00 pm (or from midnight if in employment) until 7.00 am on the Fridays, Saturdays and Sundays was imposed for 6 months. He appeals against sentence by leave of the Single Judge who, in the light of such library facilities as were available to him, thought there might be no power to suspend a sentence of detention in a young offender institution under section 96 of the Powers of Criminal Court Act 2000 or to impose a suspended order under section 189 of the Criminal Justice Act 2003, when sentence of imprisonment is less than 28 weeks.
150. However, section 189 of the 2003 Act, which came into force on 4th April relates to offences committed on or after that date, as is apparent from this judgment. That section empowers the court to suspend a sentence of imprisonment where a sentence of at least 28 weeks but not more than 51 weeks is imposed. But the Criminal Justice Act 2003 (Sentencing) (Transitory Provisions) Order 2005, Statutory Instrument 2005 No 643 modifies section 189, so as to enable the Court to suspend custodial sentences of less than 28 weeks in the case of an offender who is at least 18 but under 21. The consequence is, as Mr Linford on behalf of this appellant recognised, that the appellant got leave to appeal on a ground which is simply not arguable.
151. The reason why this case has been included in this group of cases is because it illustrates, in a simple fashion, how wide the scope of the new regime can be. The offence of affray is a specified offence in schedule 15 of the Act. If the appellant had had a previous similar conviction, which in fact he did not, the possibility of dangerousness under the new regime would have had to been considered.
152. The sole submission advanced on behalf of this appellant is that the custodial threshold was not passed so far as this offender is concerned. He participated in an incident on 25th April 2005 with other co-accused. The incident, so far as this appellant is concerned, involved him felling the victim unconscious to the ground with a single punch. The victim had given no cause to be treated in that way. Stated in those terms, we have no doubt that, even in relation to a young offender of previous good character, the custody threshold was passed. Accordingly his appeal against sentence is dismissed.
153. It would be inappropriate to conclude these proceedings without expressing our sympathy with all those sentencers whose decisions have been the subject of appeal to this Court. The fact that, in many cases, the sentencers were unsuccessful in finding their way through the provisions of this Act, which we have already described as labyrinthine, is a criticism not of them but of those who produced these astonishingly complex provisions. Whether now or in the fullness of time the public will benefit from sentencing provisions of such complexity is not for us to say. But it does seem to us that there is much to be said for a sentencing system which is intelligible to the general public as well as decipherable, with difficulty by the judiciary.