Kowalski, R. v

Under section 229(3) of the Criminal Justice Act 2003, previous convictions for specified offences create an assumption of dangerousness, but the sentencing judge must make the ultimate assessment of significant risk. The assumption may be rebutted after considering the earlier offending, any pattern of behaviour, and all available information about the offender.

An appellate court will not normally disturb a properly reasoned risk assessment. However, reliable further material may show that the offender no longer presents a significant risk of serious harm. In that event, an extended sentence should be quashed and replaced by an appropriate determinate custodial sentence.

The appellant pleaded guilty in the Crown Court at Kingston-upon-Thames to common assault and inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861. During an incident at a nightclub, he punched a woman twice, causing a full-thickness lip laceration and a hairline jaw fracture.

On 22 November 2007, the judge imposed an extended sentence under section 227 of the Criminal Justice Act 2003: 18 months’ imprisonment followed by an 18-month extension period. The judge found that the appellant posed a significant risk of serious harm, having regard to his previous violent offending and the statutory assumption in section 229(3).

The appeal challenged that assessment. The Court also received further probation and prison material concerning the appellant’s progress while in custody.

1. The appeal was allowed to the extent of quashing the extended sentence. The sentencing judge could not be criticised on the material available at sentence. The previous specified offences, the circumstances of the present assault, and the information about the appellant entitled the judge to conclude that it was not unreasonable to treat him as posing a significant risk of serious harm under section 229(3) of the Criminal Justice Act 2003.

2. The statutory assumption does not displace the sentencer’s ultimate responsibility to assess dangerousness. As explained in R v Johnson [2007] 1 Cr.App.R(S) 112, it is rebuttable. The court also accepted the appellate restraint identified in that case: it will not normally interfere where the sentencing judge has identified the correct principles and considered the relevant facts.

3. Further material received on the appeal materially altered the position. Although the supplementary probation report was guarded, evidence from prison staff showed sustained and trusted work with offenders from varied ethnic backgrounds, and the appellant was to undertake further anger-management work. The Court concluded that he had made sufficient progress and no longer represented a significant risk of serious harm through further offending.

4. The extended sentence imposed under section 227 was therefore quashed. An immediate custodial term of 18 months remained entirely appropriate because of the serious injuries inflicted and their potentially lasting effects. The Court substituted a determinate sentence of 18 months’ imprisonment.

• Court of Appeal (Criminal Division) — allowed the appeal to the extent of quashing the extended sentence and substituting 18 months’ imprisonment.
• Crown Court at Kingston-upon-Thames — on 22 November 2007 imposed an extended sentence under section 227 of the Criminal Justice Act 2003, comprising 18 months’ custody and an 18-month extension period.