Mackie v R

An imprisonment for public protection sentence under Criminal Justice Act 2003 section 225 cannot be imposed unless the offence is a serious offence within section 224. An offence with a maximum sentence of five years did not meet that condition.

Where the offence is instead a specified violent offence and the dangerousness condition is met, an extended sentence under section 227 is mandatory. On an appeal against an unlawful sentence, the Court of Appeal may substitute an extended sentence if, assessed as a whole, it is not more onerous than the sentence imposed and the substitution gives effect to the statutory sentencing duty.

The appellant pleaded guilty in the Medway Magistrates’ Court to assault occasioning actual bodily harm. At Maidstone Crown Court, Judge Patience QC imposed imprisonment for public protection with a specified minimum term of 18 months, less time spent on remand.

The appellant had previous convictions for violence, including violence against the complainant. The judge’s finding that he was dangerous was not challenged. The appeal concerned whether imprisonment for public protection was legally available and, if it was not, whether the Court of Appeal could substitute an extended sentence without contravening section 11(3) of the Criminal Appeal Act 1968.

1. Appeal allowed. The imprisonment for public protection sentence was unlawful and was quashed. It was replaced by an extended sentence of five years, comprising three years’ custody and a two-year extension period. Time spent on remand was to count towards the custodial term.
2. Under Criminal Justice Act 2003 section 224(2)(b), the offence was not a serious offence because its maximum penalty was five years’ imprisonment. The statutory precondition in section 225(1)(a) was therefore absent, so no sentence under section 225 could lawfully be imposed.
3. The offence was nevertheless a specified violent offence under section 224(3) and Part 1 of Schedule 15. Since the dangerousness condition was fulfilled, section 227 applied. The sentencing judge should have imposed an extended sentence. A three-year determinate sentence standing alone would also have been unlawful because section 227(2) made an extended sentence mandatory.
4. The substituted sentence did not infringe section 11(3) of the Criminal Appeal Act 1968. Although it was a sentence of a different statutory character, it was not more onerous when viewed as a whole. An extended sentence entitled the appellant to release halfway through the custodial term, followed by licence until expiry of the five-year sentence. By contrast, imprisonment for public protection could entail detention beyond the minimum term and an indefinite licence after release.

• Court of Appeal (Criminal Division): Leave to appeal against sentence was granted. The court allowed the appeal, quashed the unlawful sentence and substituted an extended sentence.
• Maidstone Crown Court: Judge Patience QC imposed imprisonment for public protection with a specified term of 18 months for assault occasioning actual bodily harm.
• Medway Magistrates’ Court: The appellant pleaded guilty to assault occasioning actual bodily harm.