O'Halloran, R. v

Where a serious offence and a specified but non-serious offence are sentenced together, detention or imprisonment for public protection may be imposed for the serious offence, while an extended sentence should be imposed concurrently for the non-serious offence.

The notional determinate term for the public-protection sentence may reflect the circumstances and totality of the associated non-serious offending. A dangerousness assessment under Criminal Justice Act 2003 section 229(2) may take account of all relevant offending, reports and antecedents.

The appellant pleaded guilty at Nottingham Crown Court to inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861 and to four robberies. The sentencing judge imposed detention for public protection on every count, with concurrent minimum terms based on a notional determinate term of five years.

The judge certified an important issue: whether a specified but non-serious offence could contribute to calculating the minimum term for detention for public protection imposed for serious offences. The appellant also challenged the finding that he was dangerous.

1. The appeal was allowed only to correct a technical sentencing error. Leave to appeal was refused on the challenge to dangerousness.

2. Under section 229(2) of the Criminal Justice Act 2003, the sentencing judge was entitled to consider the violent section 20 offence, the robberies, their close timing, the fact that the robberies were committed on bail, the reports and the appellant’s record. Those matters supported the conclusion that he posed a significant risk of serious harm through further specified offences.

3. A sentence of detention for public protection was unavailable for the section 20 offence because, although it was specified, it was not serious for section 225(1)(a). The correct structure was to impose detention for public protection for the robberies and a concurrent extended sentence for the section 20 offence. This followed the guidance in R v Lang [2005] EWCA Crim 2864.

4. The circumstances of the section 20 offence could nevertheless be taken into account when fixing the notional determinate term for the public-protection sentences for the robberies. To exclude it would fail to reflect the totality of the offending. The court endorsed the approach in R v O'Brien & Ors [2006] EWCA Crim 1741, which permitted an increased notional term to reflect totality where concurrent indeterminate sentences were imposed.

5. The detention for public protection imposed for the section 20 offence was quashed. It was replaced by a concurrent extended sentence under section 227 comprising 15 months’ custody and a further 15 months’ licence. The alteration made no practical difference to the sentence to be served.

• Court of Appeal (Criminal Division): In [2006] EWCA Crim 3148, the court allowed the appeal only to replace the unlawful public-protection sentence for the section 20 offence with a concurrent extended sentence.
• Nottingham Crown Court: On 23 March 2006, Judge Pollard imposed detention for public protection on the section 20 and robbery counts. At a slip-rule hearing on 4 April 2006, he refused resentencing but certified the issue concerning calculation of the minimum term.