Hogg, R. v

When deciding under section 82 A(4) whether a life-sentence prisoner should receive no specified minimum period, the court must assess the seriousness of the offence or offences. It must not treat the offender’s continuing risk to the public as the decisive criterion. A life sentence protects the public, while the minimum period reflects punishment, retribution and deterrence.

A sentence without a minimum period is reserved for rare and exceptional cases of the utmost gravity. The offender may remain detained after expiry of a properly fixed minimum period if continuing risk makes release unsafe.

The appellant had an extensive record of sexual offending. At Maidstone Crown Court he pleaded guilty to several sexual offences against boys and was convicted of two rapes and a further offence of indecency with a child.

On 19 November 2002, the judge imposed concurrent life sentences for the rapes. The appellant qualified for an automatic life sentence because of an earlier attempted-rape conviction. The judge also considered that a discretionary life sentence was justified. No minimum period was specified because of the appellant’s history and perceived danger to young boys.

More than four years later, the appellant sought an extension of time and leave to appeal sentence. The central issue was whether the absence of a minimum period was justified by the statutory seriousness criterion, rather than by the future risk he presented.

1. The court granted an extension of time and leave to appeal, and allowed the appeal against sentence to the extent of fixing a minimum period. The appellant was not to be penalised for failing promptly to appreciate that no minimum period had in fact been set.

2. Under section 82 A(4) of the Powers of Criminal Courts (Sentencing) Act 2000, a life sentence may be imposed without a specified minimum period only because of the seriousness of the offence, or of the offence together with associated offences. The provision applies to both automatic and discretionary life sentences.

3. The court accepted the approach in R v Hollies (1995) 16 Cr App R(S) 463. The life sentence serves public protection. The minimum period serves punishment, retribution and deterrence. Risk is instead material when the Parole Board considers release. Thus, even grave offending and a grave continuing risk do not alone justify dispensing with a minimum period.

4. Cases warranting detention for the offender’s whole normal life without a specified minimum period are rare and exceptional. Although the appellant’s sustained sexual abuse of two very young boys was extremely grave, it did not fall within that category. The sentencing judge had principally relied on the appellant’s future danger to young boys, which was not the statutory criterion for this purpose.

5. Applying the notional-determinate-sentence approach referred to in R v Millberry & Ors [2003] 2 Cr App R(S) 31, the court assessed the appropriate notional determinate sentence at 20 years. It fixed the minimum period at half of that term, namely 10 years. The appellant was to receive credit for 465 days spent in custody on remand. Expiry of that period did not require his release; he would remain detained unless and until he no longer presented a continuing risk.

• Court of Appeal (Criminal Division): Granted an extension of time and leave to appeal against sentence. Allowed the appeal to the extent of substituting a 10-year minimum period for the absence of any specified minimum period.
• Crown Court at Maidstone: On 19 November 2002 imposed concurrent life sentences for two rapes and concurrent determinate sentences for other sexual offences, without specifying a minimum period.