Clarke, R. v

For imprisonment for public protection, a significant risk of serious harm may be established even though earlier victims did not suffer serious harm. The sentencing court may properly assess the likely consequences of repeated offending by reference to its pattern, manner and the foreseeable vulnerability of future victims. Serious psychological injury is capable of constituting serious harm under the Criminal Justice Act 2003. An appellate court will not lightly disturb a properly directed sentencing judge’s assessment of dangerousness. A determinate sentence reflecting numerous armed robberies will not be manifestly excessive merely because the offender pleaded guilty.

R v Clarke concerned an offender who pleaded guilty at Kingston-upon-Thames Crown Court to 12 robberies and 12 related offences of possessing an imitation firearm while committing a scheduled offence. The robberies followed a repeated pattern: after gambling losses, he used a realistic imitation revolver to demand money from betting-shop staff.

The Crown Court imposed imprisonment for public protection with a minimum term of four and a half years. The offender appealed against sentence. He accepted that there was a significant risk of further specified offences, but disputed that there was a significant risk of future serious harm. He also challenged the length of the minimum term.

1. Appeal dismissed. The sentencing judge was entitled to impose imprisonment for public protection and to set a minimum term of four and a half years.
2. The absence of evidence that previous victims had suffered serious psychological harm did not prevent a finding of a significant future risk of serious harm. Under section 224(3) of the Criminal Justice Act 2003, serious harm includes serious psychological injury. The court accepted that the earlier victims had been terrified, although there was no evidence that they had in fact suffered harm at that level.
3. The risk assessment was nevertheless properly open to the judge. The offender had committed repeated robberies over a year, calmly using a highly realistic imitation revolver which appeared loaded and making threats to cashiers. If that pattern were repeated, a future victim might suffer serious psychological harm because of particular vulnerability, including youth, age, pregnancy, infirmity or a more nervous disposition.
4. The court applied the approach in Johnson, [2006] EWCA Crim 2486. A sentencing judge’s assessment of dangerousness should not lightly be disturbed where the judge has correctly directed herself and fully considered the facts. Those conditions were met.
5. The judge’s notional determinate sentence of nine years for each pair of robbery and imitation-firearm offences was not manifestly excessive. The number of offences, their repeated pattern, and the use of the realistic weapon justified that conclusion despite the guilty pleas.

• Court of Appeal (Criminal Division): Appeal against sentence dismissed in R v Clarke, [2007] EWCA Crim 1016.
• Crown Court at Kingston-upon-Thames: Following guilty pleas, the appellant was sentenced to imprisonment for public protection on concurrent counts, with a minimum term of four and a half years.