Russell, R. v

For a dangerous offender, detention for public protection does not follow automatically from the statutory finding of dangerousness. The sentencing court must consider whether an extended sentence under Criminal Justice Act 2003, section 228, would adequately protect the public from serious harm caused by further relevant offending.

That assessment requires particular rigour where the offender is under 18. Youth and immaturity do not prevent a finding of dangerousness, but may support the conclusion that an extended sentence can manage the risk without imposing an indefinite sentence.

The applicant, aged 15 when the offences were committed, was convicted at the Recorder of Middlesbrough of wounding with intent, affray, and possessing a weapon in a public place. He had used a large knife to inflict a serious neck wound after earlier disorder involving a machete.

The Recorder found that he presented a significant risk of serious harm and imposed detention for public protection for the wounding, with a three-year minimum term. No separate penalty was imposed for affray.

On an application for leave to appeal against sentence, referred by the Registrar, the Court of Appeal considered whether the statutory dangerousness finding required an indefinite sentence or whether an extended sentence under section 228 was adequate to protect the public.

1. Appeal allowed in part. The Recorder was entitled to find that the applicant presented a significant risk of serious harm. The escalating violent offending, the pre-sentence report, and the gravity of the wounding supported that conclusion.
2. The finding of dangerousness did not, however, make detention for public protection obligatory. The statutory question was whether an extended sentence under section 228 of the Criminal Justice Act 2003 would adequately protect the public from serious harm caused by further relevant offences.
3. Particular caution was required because the applicant was under 18, immature, and had a supportive family and a positive work record. Although potentially dangerous, he had not previously received a custodial sentence. An extended sentence could adequately manage the risk without an indefinite sentence.
4. The appropriate notional determinate sentence for wounding was six years. The court substituted an extended sentence comprising a six-year custodial term and a three-year extension period.
5. Affray was also a specified offence. Once the Recorder had found the statutory risk, it was not open to him to impose no sentence of the relevant statutory kind for that offence. The court imposed concurrently an extended sentence of 12 months’ custody and a two-year extension period for affray.

• Court of Appeal (Criminal Division): allowed the sentence appeal in part and substituted extended sentences for detention for public protection.
• Recorder of Middlesbrough: convicted the applicant on 15 February 2008 and, on 12 March 2008, imposed detention for public protection for wounding with intent.