Stephens, R v

A discretionary life sentence remains confined to the very limited category of cases which would have warranted it before the dangerous-offender provisions of the Criminal Justice Act 2003. Risk to the public is ordinarily addressed by imprisonment for public protection. A life sentence must be justified primarily by the exceptional gravity of the instant offence, as well as the risk and gravity of future offending.

Where either a life sentence or imprisonment for public protection is imposed, the court must ordinarily fix a minimum term. It must identify the appropriate determinate tariff, halve it, and credit time spent on remand. A non-specified concurrent or consecutive offence may be reflected within the single indeterminate sentence's notional determinate term.

The appellant appealed, on a Registrar's reference, against a life sentence for conspiracy to commit arson and a concurrent 18-month sentence for witness intimidation.

Following the end of his relationship, he encouraged another person to throw petrol through the letterbox of his former partner's terraced home at night. She and her three-year-old child were inside. While on remand, he repeatedly telephoned her and was convicted of witness intimidation. The sentencing judge found him dangerous and imposed life imprisonment without fixing a minimum term.

The appeal concerned whether the circumstances justified a discretionary life sentence and, if not, the proper indeterminate sentence and minimum term.

1. Appeal allowed. The life sentence was wrong in principle. It was set aside and replaced by a single sentence of imprisonment for public protection with a minimum term of four and a half years, less 323 days spent on remand.

2. For a specified and serious offence under the Criminal Justice Act 2003, dangerousness requires a two-stage assessment: a significant risk of further specified offences, and a significant risk that those offences will cause serious harm to the public. The court upheld the judge's finding of dangerousness. The previous harassment, the revenge motive, and the deliberate use of fire against an occupied house provided a proper basis for it.

3. A life sentence was nevertheless unavailable on these facts. Applying R v Chapman [2000] 1 Cr.App.R 77, as reaffirmed in R v Lang [2006] 2 Cr.App.R (S) 3, a discretionary life sentence requires the exceptional gravity which would itself have called for a very long sentence before the 2003 Act, together with the requisite future risk. The availability of imprisonment for public protection means that concern about future risk cannot justify a life sentence. This serious reckless arson did not satisfy the Chapman criteria. The court also observed that a psychiatric report would ordinarily be expected before sentencing for serious arson, and should never be omitted when a life sentence is contemplated.

4. Under section 82A of the Powers of Criminal Courts (Sentencing) Act 2000, a minimum term was mandatory for both a discretionary life sentence and imprisonment for public protection, unless a whole-life order was justified. The judge's failure to fix one inadvertently created a whole-life term, which was plainly erroneous. The notional determinate term had to reflect the arson and the witness intimidation in accordance with R v O'Brien [2007] 1 Cr.App.R (S) 75. A nine-year notional determinate term produced the minimum term imposed.

• Court of Appeal (Criminal Division) — allowed the appeal and substituted imprisonment for public protection with a minimum term: [2007] EWCA Crim 3021.
• Sentencing court — imposed life imprisonment for conspiracy to commit arson and 18 months' imprisonment concurrently for witness intimidation. The court and citation are not stated in the judgment.