Attorney General's Reference Nos. 60 of 2008

A sentencing court must assess dangerousness from the offender’s conduct, current offences and convictions. Where those matters demonstrate a danger to the public, an order of imprisonment for public protection may be required despite a favourable psychiatric assessment. Full credit for a guilty plea is not appropriate where a plea to a serious count is maintained until the day fixed for trial, even if the complainant was not required to give evidence. For grave connected offending, the court should adopt an overall view of criminality when fixing the notional determinate sentence and the minimum term.

The Attorney General applied under section 36 of the Criminal Justice Act 1988 to review concurrent sentences totalling four years’ imprisonment imposed at Birmingham Crown Court, sitting at Coventry.

The offender had pleaded guilty to robbery, possession of an imitation firearm while committing an offence, and sexual assault. During a planned intrusion into an occupied home, he and an accomplice subjected a mother and daughter to threats and violence. The offender used a knife to steal property from the mother and to threaten the daughter during the sexual assault.

The reference raised whether the sentence was unduly lenient, whether full credit was due for the delayed guilty plea to the sexual offence, and whether the offender’s dangerousness required imprisonment for public protection.

1. The court granted leave and held that the concurrent total of four years’ imprisonment was significantly unduly lenient. The reference was therefore allowed.

2. The offending was exceptionally serious. It was a planned home intrusion by at least three people, involving an imitation firearm, a knife, sustained violence, robbery and a sexual assault. The offender bore individual responsibility for using the knife against the mother and for threatening the daughter with it while compelling her to remove her clothing.

3. The offender was not entitled to the usual full one-third credit for a guilty plea on the sexual-assault count. Although the complainants did not have to give evidence for the defence to be properly conducted, he maintained a not-guilty plea until the day of trial. Some credit remained appropriate.

4. The court rejected the psychiatric assessment that the offender did not present a significant danger. On its own assessment of the current offences, the offender’s conduct and his previous violent robberies and assault, it held that he represented a danger to the public. The statutory assumptions of dangerousness applied when the offences were committed, and at sentence the issue was open to the court’s judgment. An order of imprisonment for public protection was a clear and obvious necessity.

5. Taking an overall view of the connected criminality, rather than imposing consecutive sentences, the proper determinate equivalent was ten years’ imprisonment on the robbery count and five years on each remaining count, concurrently. The court substituted imprisonment for public protection on count 1, with a notional minimum term of five years. Time already spent in custody was to count towards that term.

• Court of Appeal (Criminal Division) — under section 36 of the Criminal Justice Act 1988, granted leave and increased the sentence: [2008] EWCA Crim 2695.

• Crown Court at Birmingham, sitting at Coventry — on 14 August 2008, imposed concurrent sentences of four years for robbery, two and a half years for possession of an imitation firearm, and three years for sexual assault.