O'Brien & Ors v R

A sentence of imprisonment for public protection may lawfully be ordered consecutively to another indeterminate sentence or a custodial period. That course is, however, generally undesirable because an indeterminate sentence should ordinarily begin when imposed.

Where the court needs the minimum term to reflect an earlier sentence, a period activated under section 116, or totality for several offences, it should increase the notional determinate term. It should then calculate the minimum term by reference to the ordinary early-release comparison required by Powers of Criminal Courts (Sentencing) Act 2000, section 82A, and Criminal Justice Act 2003, section 244. It should not make the indeterminate sentence consecutive.

Four appellants challenged sentences imposed in separate Crown Court proceedings for robbery-related specified offences. O'Brien had received two consecutive IPP sentences. Harris, Llewellyn and Moss had each received an IPP sentence. In Llewellyn's and Moss's cases, the court had also required an unserved period under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 to be served before the IPP sentence.

The appeals raised whether an IPP sentence could run consecutively to another IPP sentence or a section 116 period, and how the sentencing court should instead reflect that period. Harris and Llewellyn also challenged the conclusion that they posed a significant risk of serious harm. Moss challenged the notional determinate term used to fix his minimum term.

1. The appeals were allowed to the extent set out below. The court held that consecutive indeterminate sentences, including IPP sentences, are not unlawful. Jones [1962] Cr.App.R.129 established that the sentencing court has that power. The court nevertheless held that the practice is undesirable. It creates avoidable difficulty in identifying release and parole dates, while producing no practical advantage.

2. A court which wishes to reflect an earlier custodial balance or a section 116 period should add it to the notional determinate term. It should then derive the minimum term by applying the early-release comparison in section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 and section 244 of the Criminal Justice Act 2003. Following Haywood [2000] 2 Cr App R (S) 418, that method gives effect to the required additional punishment without ordering an indeterminate sentence to commence later. For offences attracting concurrent indeterminate sentences, totality may be reflected by using the same notional determinate term for each offence or by increasing that for the most serious offence.

3. Harris did not present a significant risk of serious personal injury from further specified offences. His IPP sentence was quashed and replaced with three years' imprisonment, with remand time credited. Llewellyn was not party to the obtaining or use of the knife. Without that erroneous finding, it was unreasonable to conclude that he met the significant-risk threshold. His IPP sentence was quashed and replaced with four and a half years' imprisonment, consecutive to the 300-day section 116 period.

4. O'Brien's IPP sentences remained appropriate. The consecutive order was quashed. The sentences were concurrent, with minimum terms of six months for the assault with intent to rob and 21 months, less 128 days' remand time, for the robbery. This did not increase the time he would serve and therefore did not infringe section 11(3) of the Criminal Appeal Act 1968.

5. Moss's IPP sentence remained appropriate. His notional determinate term was reduced to five and a half years, including the 180-day section 116 period. The resulting minimum term was 33 months less 83 days' remand time.

• Court of Appeal (Criminal Division) Allowed the appeals to the stated extent and corrected the form and minimum terms of the IPP sentences in [2006] EWCA Crim 1741.

• Crown Court at Chester Sentenced O'Brien and Harris for assault with intent to rob and robbery. O'Brien received consecutive IPP sentences and Harris received an IPP sentence.

• Crown Court at Bolton Sentenced Llewellyn to IPP and ordered a 300-day period under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 to precede it.

• Crown Court at Bournemouth Sentenced Moss to concurrent IPP sentences and ordered a 180-day section 116 period to precede them.