Lavery, R. v

Offences taken into consideration may increase sentence, including where they are more serious than the offence charged, because sentence should reflect overall criminality. The court retains a discretion to refuse to take such offences into consideration where doing so would distort sentencing, produce injustice, and the public interest requires a charge.

Under section 229 of the Criminal Justice Act 2003, offences taken into consideration may be considered when assessing the statutory risk of serious harm. The prosecution should not invite an offender to admit an offence as a TIC where it is likely to attract a greater sentence than the charged offence.

The applicant pleaded guilty at Bolton Crown Court to robbery committed on a bus. He also admitted four further offences on a TIC form, including a grave home invasion and robbery. The Crown Prosecution Service decided not to charge those further matters, despite the sentencing judge’s concerns.

On 11 June 2008, the judge imposed detention for public protection, with a 30-month minimum term, after treating the TICs as relevant both to sentence and to dangerousness. The applicant sought leave to appeal against sentence. The central issues were whether more serious TICs could increase sentence and whether they could be considered in assessing dangerousness.

1. Application refused. The sentence was not arguably manifestly excessive.

2. The court followed R v Miles [2006] EWCA Crim 256. TICs require the offender’s express agreement and are relevant because sentence reflects overall criminality. Their effect is contextual: they may add little, or may substantially aggravate sentence. There was no principle preventing a more serious TIC from increasing the sentence otherwise appropriate for the charged offence.

3. It was nevertheless highly unsatisfactory that the prosecution had not charged the serious robbery of 30 October 2007. The applicable CPS guidance stated that an offender should not be invited to have a matter taken into consideration if it is likely to attract a greater sentence than the offence charged. A judge may refuse a TIC where accepting it would distort the sentencing exercise, lead to injustice, and the public interest requires the matter to be charged. The practical difficulty of refusing a defendant’s wish to wipe the slate clean reinforced the prosecution’s responsibility to follow that guidance.

4. Section 229 of the Criminal Justice Act 2003 permitted the judge to consider TICs when assessing significant risk under sections 225 to 228. The statutory references to information about a pattern of behaviour and about the offender were broad enough to include them. The applicant’s previous specified offence, the statutory assumption, the pre-sentence assessment and the serious admitted conduct justified the conclusion that the dangerous-offender provisions applied.

5. Although two TICs may have been inaccurately described as robberies, the error could not realistically affect the dangerousness finding or the minimum term. The five-year notional determinate sentence fairly reflected overall criminality and properly allowed credit for the guilty plea and admissions.

• Court of Appeal (Criminal Division): refused the application for leave to appeal against sentence in [2008] EWCA Crim 2499.

• Crown Court at Bolton: on 11 June 2008 imposed detention for public protection with a 30-month minimum term, less time spent on remand, following a guilty plea to robbery and four TICs.