Joyce, Re Attorney General's Reference

A discretionary life sentence requires a very serious current offence and good grounds for believing that the offender will remain a serious danger to the public for a period which cannot reliably be estimated. The court must also consider whether public protection can be secured by a determinate sentence, including one longer than commensurate under the Powers of Criminal Courts (Sentencing) Act 2000.

Repeated armed robberies committed shortly after release on licence may justify a substantial protective sentence. The absence of injury does not remove the serious risk created by knife threats. A life sentence remains exceptional, particularly where the evidence does not show mental illness or instability requiring release to be left to rehabilitation experts.

The Attorney General obtained leave under section 36 of the Criminal Justice Act 1988 to challenge as unduly lenient the offender’s aggregate eight-year sentence for eleven robberies and related theft.

The offender committed the robberies within less than three months while on licence for earlier robberies. Most involved a knife or screwdriver, threats of violence, and vulnerable victims. The Manchester Crown Court ordered the eight-year sentence to run consecutively to the unserved 600 days of the earlier licence period.

The central questions were whether a discretionary life sentence was justified by future dangerousness and, if not, whether the determinate sentence adequately protected the public.

1. The court granted the Attorney General’s reference and quashed the eight-year sentences imposed on ten robbery counts. It substituted concurrent sentences of ten years’ imprisonment on those counts, consecutive to the outstanding licence period.

2. Applying Attorney-General’s Reference No.32 of 1996 (Steven Allan Whittaker) [1997] 1 Crim App R(S) 261, a discretionary life sentence required both a very serious offence and a future risk of serious violent or sexual offending whose duration could not reliably be estimated. The robberies were grave enough to justify a very long sentence. The offender’s rapid return to repeated robbery after release, and the risk assessments, also disclosed a real danger of further serious harm. Knife threats created a serious risk of physical or psychological injury.

3. Life imprisonment was nevertheless not justified. The reports disclosed no mental illness or instability, as distinct from a marked predisposition to crime. A discretionary life sentence was a draconian and exceptional measure. Public protection could instead be achieved by a longer determinate sentence, consistently with Jamie Lee Chapman [2000] 1 Crim App R(S) 377.

4. On ordinary seriousness and totality principles, eight years was not unduly lenient: a contested determinate starting point of twelve years, reduced by one third for the guilty pleas, yielded eight years. However, the persistent and escalating offending while on licence warranted a longer-than-commensurate protective term. Twelve years would otherwise have been appropriate, but double jeopardy and the consecutive unserved licence period justified ten years instead.

• Court of Appeal (Criminal Division): Granted leave under section 36 of the Criminal Justice Act 1988, held the sentence unduly lenient on public-protection grounds, and substituted ten-year concurrent sentences on ten robbery counts.
• Manchester Crown Court: On 2 July 2002 imposed eight-year concurrent sentences on ten robbery counts, with other concurrent sentences, ordered consecutively to the unserved licence period.