Kulah, R. v

An advance indication of sentence may be given where the charge is a specified offence, but it cannot displace mandatory dangerous-offender sentencing provisions. Where the statutory risk assessment remains outstanding, the judge should make that clear and qualify the indication by reference to the possible indeterminate or extended sentence.

An indication normally states the maximum sentence on a guilty plea. It binds a later sentencing judge only by preventing a more onerous sentence. That judge must independently determine both the appropriate sentence and whether the statutory dangerousness condition is met.

The respondent pleaded guilty at Cardiff Crown Court to attempted robbery, a specified offence under the Criminal Justice Act 2003. After another judge gave an advance indication, Judge Denyer QC imposed imprisonment for public protection with a minimum term of 18 months, less time on remand.

The respondent applied out of time for leave to appeal against sentence. He maintained that the indication and the sentence had been misunderstood and that no proper dangerousness assessment had been made. The Court of Appeal considered the effect of an advance indication where dangerous-offender provisions may apply, and whether the indeterminate sentence was lawful.

1. The court granted an extension of time and leave to appeal, and allowed the appeal against sentence. The respondent’s imprisonment for public protection was replaced by a determinate sentence of three years’ imprisonment, less 122 days on remand. The concurrent sentences for affray and criminal damage were left undisturbed.
2. A Goodyear indication may be sought or given in a case involving a specified offence. However, the mandatory dangerous-offender regime in Part 12 of the Criminal Justice Act 2003 cannot be avoided by an indication. If the required risk assessment has not yet been made, the indication should expressly reserve it and explain the possible statutory consequence. If dangerousness is later established, an indication can concern only the notional determinate term for the minimum period of an indeterminate sentence, or the custodial term of an extended sentence.
3. The Recorder had therefore been entitled to decline to give an indication when no pre-sentence report was available. Judge Wynn Morgan’s indication, properly read, was an indication of imprisonment for public protection with an 18-month minimum term, rather than a determinate three-year sentence.
4. An advance indication is normally an indication of the maximum sentence following a guilty plea. Judge Denyer was not required to impose the indicated sentence. He was required to form his own view both of the appropriate sentence and of the condition in section 225(1)(b). He instead treated himself as bound and adopted another judge’s conclusion without a proper assessment of dangerousness.
5. Making a fresh assessment under section 229(3), the court considered the age and nature of the relevant previous conviction, the other convictions, and the unusual sentencing history. It would be unreasonable to find a significant risk of serious harm from further specified offences. An indeterminate sentence was consequently not appropriate.

• Court of Appeal (Criminal Division) — Granted an extension of time and leave to appeal, then allowed the sentence appeal: [2007] EWCA Crim 1701.
• Crown Court at Cardiff — On 23 December 2005, Judge Denyer QC imposed imprisonment for public protection for attempted robbery, with concurrent sentences for affray and criminal damage.