C & Ors, R v

For dangerous offenders sentenced under the amended regime, imprisonment for public protection is discretionary and remains a sentence of last resort. It is available only where there is a significant risk of serious harm and either the prior-conviction gateway or the notional-minimum-term gateway is met. The latter gateway may reflect the totality of associated offending; a four-year sentence for a single offence is unnecessary.

The court must select the sentencing package that provides adequate public protection. If an extended sentence, determinate sentence and ancillary orders suffice, imprisonment for public protection should not be imposed. The offender’s lack of intent to cause harm does not preclude a finding of dangerousness. A discretionary life sentence remains mandatory where the statutory conditions for it are fulfilled.

Nine otherwise unrelated matters were heard together following amendments to the dangerous-offender provisions in Chapter 5 of Part 12 of the Criminal Justice Act 2003. They comprised an Attorney General’s reference alleging undue leniency and eight applications or appeals against sentence.

The offenders had committed serious sexual, violent, driving and arson offences. The sentencing courts had imposed determinate sentences, imprisonment for public protection or extended sentences under differing versions of the statutory regime.

The central issues were the transitional effect of the amendments introduced by the Criminal Justice and Immigration Act 2008, the conditions for imprisonment for public protection and extended sentences, and the proper choice between indeterminate, extended and determinate sentences for dangerous offenders.

1. The Attorney General’s reference was allowed, and two sentence appeals were allowed in part. The remaining six applications or appeals were dismissed or refused.

2. The amendments applied to offenders sentenced on or after 14 July 2008. Offenders sentenced before that date, and appeals from those sentences, remained governed by the former provisions, provided the offence was committed after 4 April 2005.

3. Under section 225, a significant risk of serious harm from further specified offences remained the essential threshold. The statutory assumption of dangerousness in section 229(3) had been removed, but the existing law governing assessment of risk was unchanged. The principles in R v Johnson and others [2007] 1 CAR (S) 112 remained applicable: imprisonment for public protection is directed to future risk and public protection, rather than punishment for past offending.

4. Imprisonment for public protection was now discretionary. It was available where the risk threshold was met and either condition 3A or condition 3B applied. Condition 3A depended on a prior conviction for a Schedule 15A offence and did not require a two-year notional minimum term. Under condition 3B, the notional minimum term could reflect the combined totality of the current offence and associated offences. A sentence must not be inflated artificially to meet that gateway.

5. Even where the statutory conditions were met, imprisonment for public protection was the most draconian protective sentence short of discretionary life imprisonment. The court had to consider the whole sentencing package, including an extended sentence and ancillary protective orders. If that package adequately protected the public, imprisonment for public protection should not be imposed. An offender’s failure to intend or desire harm did not answer the question whether he posed a significant future risk.

6. A discretionary life sentence remained mandatory where section 225(1) and (2) were satisfied and the seriousness of the offence or associated offences justified it. An extended sentence was also discretionary under the amended section 227 and could be imposed for a serious specified offence where it provided the appropriate protection.

7. Applying those principles, the court replaced C’s unduly lenient determinate sentence with concurrent sentences of imprisonment for public protection with a six-year minimum term, while retaining and structuring determinate sentences for the pre-commencement offences. It reduced W’s total sentence to five years’ imprisonment and Forbes’s extended sentence to six years. The other challenged sentences were upheld.

• Court of Appeal (Criminal Division) The court determined the Attorney General’s reference concerning C and eight sentence applications or appeals. It imposed imprisonment for public protection on C, reduced the sentences of W and Forbes, and otherwise refused relief.
• Crown Court at Guildford C received a total determinate sentence of seven years’ imprisonment for serious sexual offences.
• Crown Courts at Canterbury, Bradford, Teesside, Southampton, Newcastle, St Albans and Blackfriars The remaining defendants were sentenced for the offences described in the judgment. No lower-court citations were stated.