Cross, R v

A discretionary life sentence under section 225(2)(b) remains justified only where the index offence, taken with any associated offences, is itself sufficiently serious to merit life imprisonment. The statutory regime did not dilute that threshold.

A sentencing judge should ordinarily alert counsel when considering a discretionary life sentence. The absence of a warning alone does not justify allowing an appeal. An unplanned assault involving a single kick, although causing catastrophic injury, may fall outside the small category of section 18 offences for which a life sentence is appropriate. A custodial minimum term must remain within the admissible sentencing range.

The appellant was convicted at the Crown Court at Salisbury of causing grievous bodily harm with intent after kicking the victim in the head during a drunken confrontation. The victim underwent surgery and remained in a vegetative state likely to be permanent.

The judge imposed a discretionary life sentence with a six-year minimum term. The appellant appealed against both the life sentence and the minimum term, arguing that counsel had not been warned that life imprisonment was under consideration, that life imprisonment was wrong in principle, and that the minimum term was excessive.

1. Appeal allowed. The discretionary life sentence with a six-year minimum term was quashed. It was replaced by imprisonment for public protection with a five-year minimum term. The 23 days spent on remand and the period subsequently served were to count towards that sentence.
2. It was desirable, save where particular reasons suggested otherwise, for a judge contemplating a discretionary life sentence to alert counsel. That enabled counsel to address the legal approach to the sentence. The omission did not by itself provide a ground for allowing an appeal.
3. Section 225(2)(b) retained the requirement that the offence itself, with any associated offences, must be serious enough to justify life imprisonment. The 2003 statutory regime had not watered down that threshold.
4. The offence did not fall within the small category of offences contrary to section 18 of the Offences Against the Person Act 1861 for which life imprisonment was appropriate. The assault was unplanned and, although preceded by abusive conduct and a punch, the catastrophic injury resulted from a single kick. Drunkenness afforded no mitigation.
5. The victim's devastating condition did not justify treating the case as equivalent to murder, particularly where the intent was less than an intent to kill. There was no supporting authority or support in the new definitive guideline for that approach. Although the guideline post-dated sentence, it confirmed that a 12-year starting point and a six-year minimum term lay outside the admissible range. A five-year minimum term was appropriate.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence and substituted imprisonment for public protection with a five-year minimum term: [2008] EWCA Crim 1194.
• Crown Court at Salisbury: Following conviction for causing grievous bodily harm with intent, imposed discretionary life imprisonment with a six-year minimum term.