Lunkov, R. v

A sentence of detention for public protection may be appropriate for a young offender with no previous convictions where the offending demonstrates an escalating pattern and a significant risk of serious harm from further specified offences under Criminal Justice Act 2003.

When fixing the minimum period, the court must have regard to the offender’s whole criminal behaviour. This includes offences which are not specified offences. The minimum period must nevertheless reflect a proper notional determinate sentence, including appropriate credit for an early guilty plea.

The appellant pleaded guilty at Wood Green Crown Court to two dwelling-house burglaries, aggravated burglary and sexual assault. The offences were committed against lone women in their homes over less than four weeks and increased in seriousness.

The sentencing judge imposed detention for public protection, with a five-year minimum period, for the sexual assault. There was uncertainty whether a corresponding sentence had been imposed for aggravated burglary.

On appeal, the appellant challenged the finding of dangerousness and the calculation of the minimum period. He also sought, without proper notice or amended grounds, to raise a new human-rights challenge to the statutory sentencing procedure.

1. The appeal was allowed only in part. The court refused permission to amend the grounds to advance the late human-rights argument. The proposed challenge had not been properly formulated, the Crown had not been given adequate notice, and the Lord Chancellor and Secretary of State had not been notified.

2. The sentencing judge was entitled to find that the appellant presented a significant risk to members of the public of serious harm from further specified offences within section 225(1)(b) of the Criminal Justice Act 2003. The repeated offending against lone women in their homes, its escalating gravity, and the assessed absence of victim empathy justified detention for public protection. His youth and lack of previous convictions did not provide a realistic alternative on these facts.

3. In setting the minimum period, it was essential to consider the whole of the appellant’s criminal behaviour. The two burglaries, although not specified offences, formed part of the same escalating course of conduct. Excluding them would give the offender an undeserved benefit and would fail to reflect the interests of the victims and public.

4. The five-year minimum period was excessive because it proceeded from too high a notional determinate starting point. The appropriate post-trial starting point was 12 years and, after credit for the early guilty pleas, the appropriate determinate sentence was eight years. The minimum period was therefore reduced to four years.

5. To remove uncertainty about the aggravated-burglary count, the court imposed detention for public protection on that count with a four-year minimum period concurrent with the sexual-assault sentence. Exercising section 11(3) of the Criminal Appeal Act 1968, it ensured that the appellant was not dealt with more severely on appeal. The no-separate-penalty orders for the burglaries stood, and remand time was to be deducted under section 240 of the Criminal Justice Act 2003.

• Court of Appeal (Criminal Division) Allowed the appeal only to reduce the minimum period for detention for public protection from five years to four years, and imposed a concurrent sentence on the aggravated-burglary count.
• Wood Green Crown Court The appellant pleaded guilty and was sentenced by HH Judge Guggenhein QC on 21 December 2007. The lower-court judgment citation was not stated in the judgment.