C, R. v

For an offender aged under 18, detention for public protection required both statutory dangerousness and a notional determinate sentence of at least four years. Dangerousness depended on a significant risk that further specified offending would cause serious harm. The absence of serious harm in the instant offence did not prevent that finding where the lack of harm was fortuitous and reliable assessments established the continuing risk.

However, the indeterminate sentence could not stand where the proper determinate term was below four years. A three-year term for attempted rape, after full credit for a guilty plea and taking account of the offender’s youth and other mitigation, also made an extended sentence unavailable under the Criminal Justice Act 2003 as amended.

C, aged 16, pleaded guilty in the Sheffield Crown Court to attempted rape of an 11-year-old boy. The sentencing judge found him dangerous and imposed detention for public protection, with a two-year tariff, after treating four years as the appropriate notional determinate sentence.

The psychiatric and pre-sentence reports assessed C as presenting a significant risk of serious sexual reoffending. On appeal, C no longer pursued his challenge to dangerousness. He contended that the four-year notional determinate term was excessive, having regard to his age, guilty plea, the fact that the offence was an attempt, the absence of significant violence, and his co-operation with police.

The central issue was whether the statutory thresholds permitted detention for public protection or an extended sentence once the proper determinate sentence was assessed.

1. Appeal allowed in part. The court quashed the detention for public protection and substituted three years’ detention in a young offender institution under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. The 139 days spent on remand were directed to count towards that sentence.

2. The sentencing judge was entitled to find C dangerous under section 229(1)(b) of the Criminal Justice Act 2003. The statutory question was whether there was a significant risk to members of the public of serious harm through further specified offending. The fact that the victim did not suffer serious harm on this occasion was fortuitous: intervention by an off-duty police officer prevented the attempt from progressing. Both professional reports supported the conclusion that C posed the requisite future risk.

3. The statutory conditions for detention for public protection nevertheless were not met. For an offender under 18, section 226 required a notional determinate sentence of at least four years. An extended sentence under section 228 likewise required an appropriate custodial term of at least four years.

4. The four-year notional determinate term was manifestly excessive. The court gave full credit for the guilty plea, notwithstanding that it followed receipt of a psychiatric report. It also attached weight to C’s youth, good character, the attempted nature of the offence, the absence of significant violence, and his co-operation. Bearing in mind Millberry [2003] 1 WLR 546, the proper determinate term was three years.

5. That conclusion excluded both detention for public protection and an extended sentence. The court therefore imposed the determinate section 91 sentence instead.

• Court of Appeal (Criminal Division) — Allowed the appeal against sentence in part, quashed detention for public protection, and substituted three years’ detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000: [2008] EWCA Crim 2691.
• Sheffield Crown Court — On 14 July 2008, following C’s guilty plea to attempted rape, imposed detention for public protection with a two-year tariff.