England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		14th November 2006

1. MR JUSTICE TREACY: We would like to preface this judgment by thanking Mr Ballentyne who, we understand, received the brief in this case at short notice but nonetheless assisted the Court with his submissions today.
2. The appellant in this case is Damien O'Halloran. He is aged 19 years of age. On occasions in January and February 2006 he appeared at Nottingham Crown Court and pleaded guilty to certain offences. He pleaded guilty to inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861 and on a later occasion pleaded guilty to four counts of robbery.
3. On 23rd March 2006 he came before His Honour Judge Pollard for sentence. In relation to all counts he was sentenced to detention for public protection for a period of two-and-a-half years less 106 days pursuant to section 225 of the Criminal Justice Act 2003. This was set as the minimum term for a sentence which in relation to an adult would be expressed as a term of imprisonment for public protection.
4. Mr O'Halloran appeals against sentence following the grant of a certificate by the sentencing judge. The certificate was granted in these terms:

"There is an arguable and important point as to whether or not it is right to use a specified offence, which is not a serious offence, as part of the calculation of the minimum term of an IPP."

5. The appellant has also applied for leave to appeal sentence on a ground not covered by the certificate, namely the question of whether the learned judge erred in imposing a sentence for public protection in relation to all counts.
6. There was a co-accused involved in the robbery matters, a man called Oldham. He pleaded guilty. He was of previous good character and the judge sentenced him to two-and-a-half years' detention in a young offender institution.
7. The facts of the matters before the judge are as follows. First of all, we deal with the section 20 matter which is of course a specified but not a serious offence under the legislation. On 30th June 2005 this appellant was involved in an altercation with a man called Page. There had been bad blood between the two in the past. On this particular occasion Page and the appellant were in two separate groups but they came across one another in the street. After an exchange of verbal abuse a plastic bottle was thrown by the complainant's brother and Page, the complainant, then grabbed the appellant's girlfriend. The next thing which he experienced was a pain to his right side. Friends of Page said they had seen the appellant punch the complainant and then run away. It soon became apparent that Page was bleeding and had been injured. He was taken to hospital and found to have a punctured wound to his lower chest. He was found in fact to have suffered a collapsed lung and had to stay in hospital for several days in order for his injuries to be treated. The doctor's report suggested that the injury had been caused by a screwdriver. The appellant's account was that he had used a broken bottle.
8. As to the robbery matters, these are of course both specified and serious offences under the legislation. These offences were all committed on 17th November 2005, at a time when the appellant was on bail for the section 20 matter. This appellant and his co-accused, Oldham, were part of a joint enterprise that robbed four 14 year old boys. The appellant had been drinking. He and his co-accused had come upon the boys and then followed them trying to engage them in conversation. As they followed the boys the two offenders indulged in highly anti-social behaviour. They were seen to be kicking wing mirrors off car doors, deliberately bumping into pedestrians and throwing items including a plank of wood which nearly hit a bus.
9. One of the boys took out a mobile telephone to answer a call whereupon Oldham asked to look at it and took it from him. This appellant then told the boys to line up against the wall. He told them to get their mobile telephones out. One boy was pushed into a wall and slapped across the face. Then the group was searched and a second mobile telephone was taken from the same boy. Gloves were taken from another youth, and Oldham then stamped on one of the youth's chest a number of times and forced the others to sit on the floor. Another boy had his face stamped on by Oldham, whilst he shouted: "I don't like this one, I want the kill him". Another boy was kicked to the body a number of times. All were subjected to violence involving punches and kicks.
10. It was apparent that Oldham had played the prominent party in that violence but it was equally the case that this appellant had been involved too.
11. The incident proceeded and one of the two defendants picked up a piece of broken glass and told one of the boys that he could be stabbed with it. One of the boys was forced to walk over broken glass and sustained cuts to his feet.
12. More mobile telephones in the possession of the youths were taken and the incident only ended when a security guard came upon the scene.
13. The boys attended identification procedures and were able to pick out Oldham and this appellant.
14. This appellant made no comment when interviewed, beyond saying he could not remember the incident.
15. In passing sentence the judge rightly described the section 20 offence as a very serious offence of unlawful wounding. He described the robberies as four bad robberies, involving repeated and serious violence upon young victims. The judge said he would take account of the fact that guilty pleas had been tendered but having considered the reports available to him, he concluded that notwithstanding this appellant's age he was at a significant risk of causing serious harm to members of the public in the future.
16. In determining or in calculating the appropriate length for the minimum term the judge took a notional determinate sentence as one of 5 years. He indicated that he calculated it in this way: a sentence of two-and-a-half years for the robberies and a sentence of two-and-a-half years for the unlawful wounding. The sentence for the robberies was reduced somewhat to take account of totality and to be in parity with Oldham who, as we have already pointed out, was someone of good character.
17. After the matter had been sentenced the case was re-listed before the judge on 4th April 2006 under the slip rule. Defence counsel then acting applied to Judge Pollard for the matter to be resentenced. He submitted that the judge had made an error in calculating the notional determinate sentence by reference to the section 20 wounding offence which did not attract an indeterminate sentence for public protection.
18. The judge considered the argument, refused the application but referred the matter to this Court by way of certificate.
19. This appellant is 19 years of age. He was 18 at the time of the offences. He has previously been convicted but never before for violence or any specified offence. He has never previously served any custodial sentence.
20. As to the reports before the sentencing judge there was a pre-sentence report. It commented that it seemed likely that when faced with what he perceived a threat, this appellant would respond with violence. He pointed out that this appellant was drinking heavily on a daily basis and using cannabis habitually. The author of the report took the view that these offences clearly suggested that the appellant presented a high risk of harm to the public.
21. The author commented that if the appellant did not address his alcohol misuse, his risk of reoffending would remain high.
22. There was a psychiatric report available to the judge. It concluded that although there was no evidence that the appellant was suffering from a mental illness, his drug and alcohol use were a major factor in his offending.
23. Turning to the question of risk, the psychiatrist was of the view that the commission of two sets of offences within a short space of time indicated that this appellant was a risk to the public, and it was possible, commented the psychiatrist, that that risk would improve in time if the appellant addressed the problems which made him a risk, namely the drink and drug abuse and his proneness to anger in circumstances of stress.
24. Mr Ballentyne has urged us that this was a case where the judge fell into error in making his assessment of dangerousness under section 229 of the Act. He submits that this was not a case calling for about an indeterminate sentence for public protection.
25. The relevant subsection of section 229 is in this case section 229(2). That subsection, it is to be noted, is couched in broad terms, in relation to the material to be considered by the sentencing judge and the assessing of dangerousness. It plainly includes in the context of this case the facts of the section 20 offence, the facts of the robbery offences, the contents of the pre-sentence report and the psychiatric report and this appellant's antecedent record.
26. The facts of the section 20 offence show impulsive, violent behaviour involving the use of a weapon to stab and cause serious injury. The facts of the robberies show participation in offences involving sustained and serious violence to vulnerable youths. The description of the events shows that this appellant took part in violence which had the potential to result in serious injury. These offences were committed within a short time span with the latter offences being committed whilst on bail.
27. These offences were committed by a youth whose drug and alcohol abuse was significant factorings in his offending. Both the pre-sentence and the psychiatric reports concluded that the public was at risk of harm from the appellant's violent conduct, particularly when drink and drug abuse were major factor's in this appellant's life.
28. The question for the sentencing judge was whether on the information available there was a significant risk to members of the public of serious harm caused by the commission by the appellant of further such offences.
29. Having reviewed the information available to the judge, we agree with his assessment of the matter. We do not consider that any of the grounds advanced in argument by Mr Ballentyne cause us to hesitate at all in looking at the judge's assessment. We therefore refuse leave to appeal on the ground of the appropriateness of a sentence for public protection.
30. We now turn to the matter certified by the judge. Trial counsel in his grounds argued that the judge was wrong in fixing the notional determinate term of 5 years to take account of the section 20 offence. He argued that since the section 20 offence is a specified but not a serious offence under the 2003 Act, it cannot of itself attract a sentence of imprisonment or detention for public protection (see section 225(1)(a)). He therefore submitted that the section 20 matter should not feature in any calculation when the court has to sentence an offender to detention for public protection in relation to the robbery offences.
31. The submission made by trial counsel was that assuming that the judge's decision as to the assessment of dangerousness was upheld, the correct course would have been to pass a concurrent extended sentence under section 227 for the section 20 offence, without allowing that offence to play any role in the assessment of the notional determinate sentence in relation to the robbery offences.
32. The judge rejected this submission at the slip rule hearing on the grounds that it would result in an unrealistically low sentence for an accumulation of serious offending.
33. In support of his argument trial counsel refers to the authority of R v Lang [2005] EWCA Crim 2864, where Rose LJ, the Vice-President of the Court of Appeal (Criminal Division), gave invaluable guidance on the workings of this area of the Criminal Justice Act of 2003. In particular, reference was made to paragraph 20 of the authority of Lang. That citation, whilst supporting the proposition that the correct course in relation to the structure in the sentencing on this occasion was to have imposed a concurrent extended sentence of the section 20 matter, does not answer the core question of whether the judge was entitled to take account of the facts of the section 20 matter in calculating the notional determinate sentence within the framework of imposing a sentence of detention for public protection for the robbery matters. Paragraph 20 of Lang, in relation to the specified but not serious offence of inflicting grievous bodily harm contrary to section 20, plainly indicates what is apparent from a reading of section 225(1)(a), namely that sentences of detention or imprisonment for public protection are not available for non-serious offences. In so far as the judge sentenced this appellant to a sentence of detention for public protection for the section 20 matter, he was in error.
34. We return, now, to the core question and begin by referring to section 143(2) the 2003 Act. That provides as follows:

(2) In considering the seriousness of an offence ('the current offence') committed by an offender who has one or more previous convictions, the court must treat.

each previous conviction as an aggravating factor if (in the case of that conviction) the court considers that it can reasonably be so treated having regard, in particular, to—

(a) the nature of the offence to which the conviction relates and its relevance to the current offence, and.

(b) the time that has elapsed since the conviction."

This subsection gives plain recognition to the fact that where a person has previously been convicted and sentenced for an offence, that conviction may still have bearing on the level of sentencing for a fresh offence. If this is the case where a sentence has been served for a previous offence, it would seem irrational for the section 20 matter to fall out of consideration where no sentence has yet been imposed. Moreover, similar but not identical issues to those before us were considered recently in the case of R v O'Brien & Ors [2006] EWCA Crim 1741. The questions before the court on that occasion were two-fold. First of all: can a sentence of imprisonment for public protection, IPP, under section 225(2) of the Criminal Justice Act 2003 be ordered to run consecutively to another sentence of IPP? Secondly: if a court wishes to order a defendant to serve the remaining period of a previous sentence of imprisonment, pursuant to section 116 of the Powers of Criminal Court (Sentencing) Act 2003 and is also sentencing the defendant to a sentence of IPP, how may that be achieved?

35. After dealing with the individual cases, the Court in O'Brien set out general principles at paragraph 58 and following. We believe that those principles can be distilled to the following three propositions:

(i) whilst it is not unlawful to impose consecutive indeterminate sentences, or an indeterminate sentence consecutive to another period of imprisonment, such a practice is undesirable. Common sense suggests that life imprisonment or IPP should start immediately it is imposed; (ii) where a judge intends to order that a period before which the defendant becomes eligible for parole, should be served consecutively to an existing sentence, or should follow the period of return to prison under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000, then in order to ensure that the sentence imposed includes the balance of the existing sentence, or the period under section 116, he should increase the notional determinate term to reflect that balance or that period (see R v Hayward [2000] 2 Cr App R(S) 418.

(iii) where a judge imposes concurrent and indeterminate sentences for two or more offences with concurrent minimum terms and absent those indeterminate sentences he would have passed consecutive determinate sentences, he may reflect in the notional determinate term the totality of the offending by either choosing the same notional determinate term for all the offences or setting an increased notional determinate term for the most serious offence.

36. We agree with and endorse the approach of the Court in O'Brien & Ors. Whilst none of the matters dealt with in O'Brien directly deal with the issue in this case, we consider that the solution to the present matter before us is consistent with the approach of the Court in O'Brien and we consider it as the correct solution.
37. In the circumstances, where the judge has before him for sentence a specified but not a serious offence of some gravity, at the same time as a serious offence which would attract a sentence of detention or imprisonment for public protection, he should:

(i) impose a sentence of IPP for the serious offence; and (ii) impose a concurrent extended sentence for the specified non-serious offence (see R v Lang paragraph 20). However, in fixing the notional determinate term for the IPP, the judge is entitled to take account of the circumstances of the specified non-serious offence. To hold otherwise would give uncovenanted bonus to the offender and would shortchange the victims and the public.

38. Accordingly we hold that, in sentencing as he did, Judge Pollard essentially followed the process which we regard as correct. His only error lay in the wholly technical area of imposing a sentence of IPP concurrently for the section 20 offence. We correct that error by quashing that part of the sentence and by imposing an extended sentence of 30 months pursuant to section 227 in its place. That will be comprised of a custodial element of 15 months, together with a licence period of a further 15 months. That sentence will run concurrently with the detention for public protection sentences for the robberies.
39. This alteration makes no practical difference to the sentence to be served or its terms. To that minor extent only, this appeal is allowed.