Delaney & Ors, R. v

For a dangerous offender, an extended sentence is not appropriate merely because custodial progress suggests rehabilitation. The court must have sufficient assurance that the risk of serious harm can be safely managed when the finite custodial term ends.

Sentence must reflect the whole gravity of a sustained, unprovoked group attack, including weapon use and grave injury. Sentencing guidelines inform, but do not mechanically determine, the appropriate reduction for a guilty plea. A sentence imposed under a statutory power which does not extend to the offence is unlawful and must be quashed.

Four young appellants participated in a serious and unprovoked street attack on a lone victim. The attack involved two blows to the victim’s face with a bottle and caused grave facial injuries, including effective blindness in one eye.

At the Crown Court at Inner London, Delaney pleaded guilty to wounding with intent. Burch and Mekshi were convicted of that offence after trial. Harris was acquitted of wounding with intent and sentenced for assault occasioning actual bodily harm. Delaney and Mekshi received detention for public protection, Burch received six years’ detention, and Harris received two years’ detention.

Each appellant appealed against sentence. The issues included dangerousness, the appropriate sentencing starting point, credit for a guilty plea, and the legality of Harris’s sentence.

1. All four appeals were allowed to the extent stated. The sentencing judge was entitled to find that Delaney and Mekshi presented a significant risk of serious harm. Their conduct in the violent, sustained and unprovoked attack, particularly the use of the broken bottle, justified serious concern. Although both had prospects of improvement, the material did not provide sufficient assurance that the risk could safely be managed at the end of the finite custodial term of an extended sentence. Detention for public protection under Criminal Justice Act 2003 section 226 therefore remained appropriate.

2. The starting point of 15 years’ detention was too high. The relevant Sentencing Guidelines Council guidance indicated a range of 10 to 12 years following conviction for an offence of this gravity. For Delaney, a notional determinate sentence of eight years was appropriate after credit for age, good character and plea. His minimum term was reduced to four years, less 214 days on remand. For Mekshi, the corresponding minimum term was reduced to five years, less 44 days on remand.

3. Burch’s lesser role and the excessive starting point justified reducing his sentence from six years to five years’ detention, less 39 days on remand.

4. The court observed that the guilty-plea guideline was guidance rather than a mathematical rule. A sentencing judge retained responsibility for the appropriate reduction in the individual case, although an express explanation for departing from the recommended reduction would have been preferable.

5. Harris’s two-year sentence was unlawful. Section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 did not apply to assault occasioning actual bodily harm. The court resentenced him. The assault had to be assessed in the context of the group attack and crossed the custody threshold. A 12-month Detention and Training Order was substituted.

• Court of Appeal (Criminal Division): By [2008] EWCA Crim 1419, allowed the sentence appeals to the extent of reducing the custodial terms and substituting a lawful sentence for Harris.

• Crown Court at Inner London: On 25 January 2008, imposed detention for public protection on Delaney and Mekshi, six years’ detention on Burch, and two years’ detention on Harris.