Collins, R v

Under section 109 of the Powers of Criminal Courts (Sentencing) Act 2000, life imprisonment is the normal sentence for a second serious offence. The sentencing court must nevertheless assess the offender’s future dangerousness in the light of all relevant circumstances. A defendant who does not create an unacceptable risk to the public may fall within the exceptional-circumstances exception.

Good sentencing practice requires reasons for an indeterminate sentence, even where the statute expressly requires reasons only when the court departs from the life-sentence norm. Where the evidence of future serious harm is mixed and does not give the court sufficient confidence to take the exceptional course, a life sentence may properly remain. The minimum term must, however, be commensurate with the offence and mitigation.

The appellant pleaded guilty at the Crown Court at Kingston upon Thames to robbery and possessing an imitation firearm while committing an indictable offence. His earlier robbery conviction made the new offences a second serious offence for section 109 purposes. The sentencing judge imposed concurrent mandatory life sentences and specified a minimum term of five years and nine months.

After a single judge had refused leave, the Criminal Cases Review Commission referred the sentence under section 9 of the Criminal Appeal Act 1995. The appellant contended that the judge had misdirected himself about the risk assessment required by section 109. The Court of Appeal reconsidered both the justification for the life sentence and the length of the minimum term.

1. Appeal allowed in part. The life sentence remained justified, but the minimum term was reduced to three years and nine months after credit for time already served.

2. Following R v Offen and others [2001] 1 Cr.App.R 372, section 109 establishes a norm that a person convicted of two serious offences presents a danger to the public. The court must assess whether, considering all circumstances, the offender creates an unacceptable future risk. If not, that offender is an exception to the norm and exceptional circumstances may justify a determinate sentence.

3. The Court rejected the contention that the different formulations in R v Smith and Fletcher and R v Richards demonstrated a material legal error. Both required an assessment of risk. The Court observed that Richards may have described the relevant risk more widely than Offen or Parliament intended, but reference to it alone did not establish misdirection.

4. The judge had given very brief reasons and had not expressly addressed dangerousness or the pre-sentence report. Although section 109 required stated reasons only when the court declined to impose life imprisonment, good sentencing practice required an explanation in either event, particularly for an indeterminate sentence. The Court therefore conducted its own assessment.

5. The appellant’s long history of offending created a continuing risk of reoffending. His earlier robbery did not itself demonstrate a propensity for violence, and the risk of serious harm was relatively low. However, the seriousness of the trigger robbery, the risk inherent in further domestic burglary or robbery, continuing criminal associations and the mixed later evidence did not permit sufficient confidence that the exceptional course should be taken. The life sentence therefore stood.

6. The judge’s commensurate tariff of 12 years was excessive. A post-trial term of 12 to 14 years, reduced to eight years for the early guilty plea and remorse, was appropriate. The resulting minimum term before release could be considered was three years and nine months.

• Court of Appeal (Criminal Division) — On a Criminal Cases Review Commission reference, the court upheld the life sentence but reduced the minimum term: [2006] EWCA Crim 1049.

• Criminal Cases Review Commission — Referred the sentence under section 9 of the Criminal Appeal Act 1995.

• Crown Court at Kingston upon Thames — The appellant pleaded guilty and received concurrent life sentences under section 109 of the Powers of Criminal Courts (Sentencing) Act 2000, with a minimum term of five years and nine months.