Watty, R. v

A sentence of imprisonment for public protection requires evidence of a significant, rather than merely possible, risk that the offender will commit further offences causing serious harm. A general assessment of risk of reconviction does not, without more, establish a significant risk of repeat sexual offending or serious psychological harm.

Sentencers must assess the nature and pattern of past offending, the circumstances of the present offence, and the evidence of future risk. Repetitive offending at a relatively low level, without serious harm, does not of itself establish the required risk. An indeterminate sentence is not appropriate for relevant minor offending which warrants only a short determinate term.

The appellant was convicted at Norwich Crown Court of two offences of sexual assault on a child under 13, contrary to section 7 of the Sexual Offences Act 2003. The assaults involved touching the ten-year-old complainant's buttocks on two occasions while he was living with her family.

The sentencing judge imposed imprisonment for public protection with a minimum term of 12 months, less time spent in custody. She considered that the equivalent determinate sentence would have been 12 months' imprisonment on each count consecutively.

The appellant appealed against sentence. The issues were the proper determinate sentence and whether the evidence established a significant risk of future offending causing serious harm so as to justify imprisonment for public protection.

1. Appeal allowed. The appropriate determinate sentence was 12 months' imprisonment on each count, to run concurrently. The physical conduct was at the lower end of the scale, although the breach of trust was aggravating. The two isolated offences did not materially aggravate sentence. The appellant's refusal to plead guilty was not an aggravating feature.

2. Imprisonment for public protection required evidence both of a significant risk of further offending of the relevant kind and of a significant risk of serious harm resulting from it. A possibility did not meet that higher threshold.

3. The pre-sentence report assessed a high risk of reconviction generally, based on the appellant's criminal record and personal circumstances. It did not identify a significant risk of further sexual offending against children. He had no previous sexual convictions, his past conduct disclosed no pattern of such offending, and his relationship with the complainant's family had ended.

4. The court applied the guidance in R v Lang [2005] EWCA Crim 2864. A sentencer must not infer a significant risk of serious harm simply because a future specified offence is serious. Relatively low-level repetitive sexual offending, without serious harm, does not by itself establish that risk. There was insufficient evidential basis for either limb of the dangerousness assessment.

5. More generally, Parliament could not have intended imprisonment for public protection for relevant minor offending warranting only a short determinate sentence. The sentence of imprisonment for public protection was therefore replaced by concurrent terms of 12 months' imprisonment.

• Court of Appeal (Criminal Division) Allowed the appeal against sentence and substituted concurrent sentences of 12 months' imprisonment.
• Norwich Crown Court Convicted the appellant on 11 July 2006 and, on 11 August 2006, imposed imprisonment for public protection with a minimum term of 12 months less four days.