Southwell, R. v

Where imprisonment for public protection is appropriate, the minimum term must be based on a lawful and proportionate notional determinate sentence. A sentencing judge must not adopt a starting point above the statutory maximum for the offence. Comparable sentencing decisions may assist in identifying the proper notional sentence after credit for a guilty plea.

The punitive minimum term is distinct from continued detention for public protection. The Parole Board determines whether a dangerous offender remains detained after expiry of that minimum term.

The appellant pleaded guilty at Carlisle Crown Court to making a threat to kill. He had disclosed a detailed plan to kill his father and had a previous conviction for wounding with intent. The judge imposed imprisonment for public protection under section 225 of the Criminal Justice Act 2003, with a four-year minimum term less time on remand.

The appellant did not challenge the indeterminate sentence. He appealed only against the minimum term, contending that it was manifestly excessive. The issue was the appropriate notional determinate sentence and resulting minimum term.

1. Appeal allowed as to sentence. The court substituted a minimum term of two and a half years less time spent on remand.
2. The judge’s notional determinate sentence of eight years necessarily reflected a starting point of 12 years, reduced by one third for the guilty plea. That starting point was wrong because making a threat to kill under section 16 of the Offences Against the Person Act 1861 carries a maximum penalty of 10 years.
3. The offending was nevertheless extremely serious and justified a stern sentence. Having regard to the comparable guilty-plea sentences in R v Tucknott [2001] 1 Cr App R(S) 93 and R v Smith [2004] 2 Cr App R(S), the proper notional determinate sentence was five years. The appropriate minimum term under the IPP sentence was therefore two and a half years.
4. The reduction did not undermine public protection. The appellant remained a dangerous offender and would remain detained after the minimum term unless and until the Parole Board decided that release was appropriate.

• Court of Appeal (Criminal Division): Allowed the sentence appeal to the limited extent of reducing the minimum term.
• Crown Court at Carlisle: On 26 October 2007, imposed imprisonment for public protection under section 225 of the Criminal Justice Act 2003, with a four-year minimum term less 210 days on remand.