Burton, R. v

When fixing the minimum term for concurrent sentences of imprisonment for public protection, the court must assess the offender’s overall criminality. It should identify the notional determinate sentence that would have been imposed had imprisonment for public protection not been required, after allowing for guilty pleas, and set the minimum term accordingly. A minimum term that materially exceeds the proper assessment may be reduced on appeal.

The appellant pleaded guilty at Birmingham Crown Court to robbery, possession of a firearm while committing a Schedule 1 offence, and conspiracy to rob. The offences concerned armed cash-delivery robberies in Birmingham and Plymouth.

On 30 November 2007, the Recorder imposed concurrent sentences of imprisonment for public protection with a minimum term of nine years, less 148 days spent on remand. The appellant appealed against the length of that minimum term, contending that it was manifestly excessive and insufficiently reflected his pleas, age and limited relevant antecedents.

1. Appeal allowed to the extent of varying the minimum term. The appeal concerned only the nine-year minimum term imposed within the concurrent sentences of imprisonment for public protection.

2. Following the approach in O'Brien [2007] 1 WLR 833, the minimum period had to be adjusted to reflect the appellant’s overall criminality. The court was therefore required to identify the notional determinate sentence which would have been imposed if imprisonment for public protection had not been required.

3. After making full allowance for the guilty pleas, the proper notional determinate sentence was 14 years. The appropriate minimum term was consequently seven years, rather than nine years.

4. The court substituted a minimum term of seven years, less 148 days spent on remand, for the Recorder’s nine-year minimum term. The sentences of imprisonment for public protection otherwise remained in place.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence to the limited extent of substituting a seven-year minimum term.
• Birmingham Crown Court: On 30 November 2007, imposed concurrent sentences of imprisonment for public protection with a nine-year minimum term, less 148 days spent on remand.