SB, R. v

Under section 225 of the Criminal Justice Act 2003, dangerousness requires a significant risk both of further specified offending and of consequent serious harm to the public. The sentencing judge may assess that risk independently, taking account of but not being bound by a pre-sentence report or expert evidence.

Having found dangerousness, the court must make a separate assessment of whether the offending is sufficiently serious to justify life imprisonment. That assessment follows the discretionary-life-sentence criterion and includes culpability, harm and dangerousness. Where that seriousness threshold is not met, imprisonment for public protection must be imposed instead.

The appellant pleaded guilty in the Crown Court to two counts of rape contrary to section 1 of the Sexual Offences Act 2003 and one count of attempted rape. The complainant was 14 and was a friend of his daughter. The offences involved a serious breach of trust, alcohol, restraint and force.

On 26 September 2005 the Crown Court imposed concurrent life sentences for the rapes under section 225 of the Criminal Justice Act 2003, with a five-year minimum term, and a concurrent five-year determinate sentence for attempted rape. The appellant appealed against sentence. The central issues were whether he posed the statutory significant risk of serious harm and, if so, whether the offending was serious enough to justify life imprisonment rather than imprisonment for public protection.

1. Appeal allowed in part. The life sentences were quashed and replaced with concurrent sentences of imprisonment for public protection. The five-year determinate sentence for attempted rape was left unchanged.
2. The statutory dangerousness condition was satisfied. There was ample material upon which the judge could find a significant risk that the appellant would commit further specified offences causing serious harm. The circumstances showed control, abuse, force and a gross breach of trust. The pre-sentence report itself identified a risk of repetition if he became intoxicated and was alone with a young girl. The court was entitled to assess risk from all the circumstances and was not bound by the report's low-to-medium assessment or required to obtain expert evidence: R v Lang and Others [2005] EWCA Crim 2864.
3. However, dangerousness did not itself justify life imprisonment. Once risk under section 225 had been established, the judge had to make the separate inquiry required by section 225(2): whether the seriousness of the offending justified life imprisonment. Applying R v Lang and Others [2005] EWCA Crim 2864, that threshold was to be assessed by the criteria for a discretionary life sentence, including culpability, harm and dangerousness.
4. Although the offences were grave, they would not previously have justified a discretionary life sentence and did not meet the statutory seriousness threshold. The case therefore fell within section 225(3) of the Criminal Justice Act 2003. A notional determinate sentence of seven years was appropriate after allowing for mitigation and the early guilty pleas. The specified term was three and a half years on each rape count, concurrently, less 98 days already spent in custody.

• Court of Appeal (Criminal Division)—allowed the sentence appeal to the extent of quashing the life sentences and substituting imprisonment for public protection.
• Crown Court—following guilty pleas on 23 August 2005, imposed concurrent life sentences for rape with a five-year minimum term, a concurrent five-year determinate sentence for attempted rape, and a disqualification from working with children.