Attorney General's Reference No 87 of 2006

Where the statutory assumption of dangerousness under section 229(3) applies, a sentencer may disapply it only if, having considered the specified information, it is unreasonable to conclude that the offender presents a significant risk of serious harm. An appellate court will not interfere unless that decision could not properly have been reached.

In an Attorney General’s reference, a sentence may be lenient, even very lenient, without being unduly lenient. The court must assess the appropriate sentence for connected offending, then apply totality to the overall criminality. The trial judge’s assessment of the evidence and of the harm caused to the victim may properly carry substantial weight.

The Attorney General obtained leave to refer, as unduly lenient, the aggregate sentence imposed on an offender convicted of threats to kill and assaults on his former partner, and who had pleaded guilty to domestic burglary and burglary of a shed.

The threat involved a loaded crossbow pointed at the victim’s head during a prolonged domestic incident. The offender had previous convictions, including an affray which made the dangerousness assumption in section 229(3) of the Criminal Justice Act 2003 applicable. The Attorney General contended that imprisonment for public protection should have been imposed, or alternatively that the determinate term was too low.

The central issues were whether the Recorder could properly disapply the statutory assumption of dangerousness and whether the total sentence of 52 months and 21 days was unduly lenient.

1. The reference was refused. Although leave was granted, the court declined to increase the aggregate sentence.

2. Under section 225 of the Criminal Justice Act 2003, imprisonment for public protection depended on a significant risk of serious harm from further specified offences. Because the offender had a relevant previous conviction, section 229(3) required that risk to be assumed unless it would be unreasonable to reach that conclusion after considering the prescribed information.

3. The Recorder should have expressly addressed section 229(3) and explained why the assumption was displaced. That omission did not itself require intervention. Applying the approach in R v Johnson and others [2006] EWCA Crim 2486, the question was whether the Recorder’s decision was one he could not properly have reached.

4. He could properly reach it. He had presided at the trial and was well placed to assess the threatening conduct. The violence against the victim was not part of a pattern, the offender had not previously inflicted serious harm on her, and the Recorder was entitled to assess the weight of the offender’s stated intention to have no future contact with her. The crossbow threat was serious, but imprisonment for public protection was not required.

5. For the threat and connected assaults considered independently, four years’ imprisonment would have been appropriate. Adding the burglary sentences produced a total exceeding six years before totality. Totality justified a reduced overall figure in the region of five and a half to six years. Nevertheless, the imposed term of four years, four months and 21 days, while at the bottom of the permissible range and lenient, was not unduly lenient. The Recorder’s direct assessment of the victim and the limited long-term effect of the conduct were entitled to weight.

• Court of Appeal (Criminal Division) — granted leave on the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, but refused to increase the sentence.
• Crown Court (Recorder Hawks) — on 14 July 2006 imposed consecutive and concurrent terms totalling 52 months and 21 days for burglary, threats to kill and assaults.