Nobes, R. v

Where the statutory assumption of dangerousness applies, the court must assess all relevant information before deciding whether it is unreasonable to find a significant risk of serious harm from further offending. Relevant matters include the circumstances of the current offence, prior offending and any pattern, personal stability, and professional risk assessment.

A sentence of imprisonment for public protection under the Criminal Justice Act 2003 is wrong in principle where that assessment rebuts the assumption. A sentencer should identify the information considered and give reasons for making or declining to make the statutory assumption.

The appellant was convicted of manslaughter at the Crown Court at Kingston upon Thames after intervening in a fight and punching the deceased, who fell and suffered a fatal head injury. He had one previous conviction for assault occasioning actual bodily harm.

The sentencing judge imposed imprisonment for public protection under section 225 of the Criminal Justice Act 2003, with a minimum term based on a three-year determinate sentence. The appellant appealed against sentence, contending that the statutory assumption of dangerousness under section 229 had been rebutted and that imprisonment for public protection was excessive and wrong in principle.

1. Appeal allowed. The court quashed the sentence of imprisonment for public protection under section 225 of the Criminal Justice Act 2003. It substituted a determinate sentence of three years, allowing 82 days spent on remand under section 240.

2. The previous specified offence required the court to assume dangerousness under section 229 unless, having considered the statutory matters, it would be unreasonable to conclude that the appellant posed a significant risk of serious harm through further offending.

3. The court applied the risk-assessment guidance in Lang [2005] EWCA Crim 2864. The assessment required attention to the nature and circumstances of the present offence, previous offending and any pattern, personal and social circumstances, and the offender’s attitude and response to supervision.

4. The two violent incidents were serious but isolated and factually different. They did not establish a pattern of offending. Although the manslaughter caused grave harm, that unintended consequence did not itself establish future risk. The appellant’s stable relationship and employment, his progress in addressing alcohol misuse, his remorse, and the favourable pre-sentence assessment all weighed against dangerousness.

5. The sentencing judge had concentrated on the previous offence without identifying the relevant information or giving adequate reasons for retaining the statutory assumption. Where a judge properly identifies the statutory provisions, relevant information and reasons, an appellate court will be slow to interfere. Here, the deficiencies required the Court of Appeal to conduct the assessment itself. It held that it was unreasonable to find a significant risk of serious harm, so imprisonment for public protection was manifestly excessive and wrong in principle.

• Court of Appeal (Criminal Division): In [2007] EWCA Crim 1139, allowed the appeal against sentence, quashed imprisonment for public protection, and substituted a determinate sentence of three years with 82 days credited for remand.

• Crown Court at Kingston upon Thames: On 26 October 2006, convicted the appellant of manslaughter. On 13 December 2006, imposed imprisonment for public protection under section 225 of the Criminal Justice Act 2003, with an 18-month minimum term less time on remand.