Herbert & Ors, R v

The categories in paragraph 5(2) of Schedule 21 to the Criminal Justice Act 2003 are illustrative. A murder may be particularly serious although it does not fall within a listed category. Sentencing guidelines also require a broad assessment of overall criminality, rather than inflexible categorisation.

For dangerous-offender sentencing, the circumstances of an exceptionally serious offence may justify a finding of significant future risk despite favourable actuarial assessments or little relevant offending history. An indefinite sentence remains available only where an extended sentence would not adequately protect the public. Credit for a guilty plea is normally assessed when it is entered, but a justified investigation into a young offender’s capacity may warrant greater credit.

Five teenage appellants appealed sentences imposed by the Crown Court at Preston after a sustained and unprovoked group attack on Robert Maltby. Herbert and Harris were also responsible for the fatal attack on Sophie Lancaster after she sought to assist Maltby.

Harris was convicted of murder and Herbert pleaded guilty to it. The remaining appellants pleaded guilty to causing grievous bodily harm with intent. The judge imposed minimum terms for the murder sentences and imposed detention for public protection under section 226 of the Criminal Justice Act 2003 for the non-murder count.

The appeals concerned the murder minimum terms, dangerousness, the proper notional determinate sentences, the effect of youth and mitigation, and credit for guilty pleas.

Disposition

1. The Court dismissed the appeals of Harris, Mallett, Danny Hulme and Joseph Hulme. It allowed Herbert’s appeal only to reduce his murder minimum term from 16 years and three months to 15 years and six months, less time on remand. His detention during Her Majesty’s pleasure remained in place.
2. Under Schedule 21 to the Criminal Justice Act 2003, the question under paragraph 5(1) was whether the murder was particularly serious. The paragraph 5(2) categories were not exhaustive. Applying R v Height and Anderson, the Court held that the judge was entitled to use a 30-year adult starting point as a comparison. The near-double murder, targeting because of appearance, and the cruel and sustained violence justified that conclusion.
3. The judge had given proper effect to the appellants’ youth by using the under-18 starting point. The absence of an intent to kill carried little mitigating force in light of the savagery of the attack. The sentencing remarks also showed that the judge had not treated the attack as premeditated.
4. The Court upheld the dangerous-offender findings under section 226. The facts of the attack could demonstrate a significant risk of serious harm from further specified offences, notwithstanding low or medium risk assessments in pre-sentence reports and the absence of previous violent convictions for some appellants. The judge had also considered, and was entitled to reject, an extended sentence under section 228 as inadequate to protect the public.
5. A definitive guideline must not be used as a set of fixed compartments. The judge was entitled to assess the overall criminality as falling in the highest category for the section 18 offence. His reduction of the notional determinate sentence to 13 years properly reflected the appellants’ youth.
6. Credit for a guilty plea is normally assessed when the plea is publicly entered, and a tactical conditional indication of plea will not ordinarily secure full credit. Herbert’s admitted involvement and the justified psychiatric investigation into his capacity, however, warranted a larger allowance than the 5% given for a late plea.

• Court of Appeal (Criminal Division) — In [2008] EWCA Crim 2501, dismissed four sentence appeals and allowed Herbert’s appeal to the limited extent of reducing his murder minimum term by nine months.
• Crown Court at Preston — HHJ Russell sentenced the appellants on 28 April 2008 for murder and/or causing grievous bodily harm with intent.