Winchester, R. v

A sentence of imprisonment for public protection under section 225 of the Criminal Justice Act 2003 requires a properly supported assessment of a significant future risk of serious harm from further specified offences. The seriousness of the current offence is relevant but does not, without more, establish that risk. Where an offender has no relevant convictions, the court must consider all available information about the offence and may consider behavioural patterns and information about the offender. Good character and positive evidence of ordinary conduct must be given proper weight. If the statutory risk threshold is not established, an indeterminate sentence must be quashed and replaced by the appropriate determinate sentence.

The appellant pleaded guilty at Oxford Crown Court to assault by penetration. The offence involved serious violence, threats with a knife, and non-consensual sexual penetration of the complainant.

On 28 September 2007, the Crown Court imposed imprisonment for public protection with a minimum term of two years and three months. The judge stated that a determinate sentence would have been four and a half years’ imprisonment.

The appellant, who had no previous convictions and had previously been of good character, appealed only the imposition of imprisonment for public protection. The central issue was whether the available material established a significant future risk of serious harm under the Criminal Justice Act 2003.

1. Appeal allowed. The sentence of imprisonment for public protection was quashed. It was replaced with a determinate sentence of four and a half years’ imprisonment.

2. Under sections 225(1) and 225(3) of the Criminal Justice Act 2003, imprisonment for public protection was mandatory only if the statutory conditions were met, including the court’s opinion that there was a significant risk to members of the public of serious harm caused by further specified offences. Serious harm included serious physical or psychological injury under section 224(3).

3. For an offender without a relevant previous conviction, section 229 required the sentencing court to take account of all available information about the current offence. It also permitted consideration of any behavioural pattern and information about the offender. The assessment could not proceed on the assumption that imprisonment for public protection was required unless evidence displaced that conclusion.

4. The offence was plainly serious and could have caused serious psychological harm if repeated. However, there was no evidence beyond the facts of this single offence to indicate likely repetition. The sentencing judge had given insufficient weight to the appellant’s good character and the positive evidence of his previous ordinary conduct. There was no identified fact suggesting that a determinate sentence would be insufficient to deter similar future offending and avert a significant risk to the public.

• Court of Appeal (Criminal Division) — in [2008] EWCA Crim 63, allowed the appeal against sentence, quashed imprisonment for public protection, and substituted four and a half years’ imprisonment.

• Oxford Crown Court — on 28 September 2007, imposed imprisonment for public protection with a minimum term of two years and three months after a guilty plea to assault by penetration.