Ashworth, R v

For the dangerousness assessment under the Criminal Justice Act 2003, the absence of previous serious harm does not preclude a finding of a significant risk of serious harm from further specified offences. The court may assess risk to particular members of the public by reference to the current and previous offending, a pattern of threatening or violent conduct, and expert reports.

However, an imprisonment for public protection sentence requires satisfaction of the statutory threshold concerning the appropriate notional determinate sentence. A sentence must reflect the actual gravity of the false imprisonment, including its duration, violence, use of weapons, spontaneity, antecedents and guilty plea.

The appellant pleaded guilty in the Crown Court at Manchester Minshull Street to false imprisonment of his father and criminal damage. He had a substantial history of offending against family members, including an earlier false imprisonment of his mother at knifepoint.

The sentencing judge found him dangerous and imposed imprisonment for public protection with a two-year minimum term. The judge assessed the notional determinate sentence as four years after credit for the guilty plea.

On appeal against sentence, the central issues were whether the dangerousness finding was justified and whether the four-year notional determinate sentence was manifestly excessive.

1. Appeal allowed. The court quashed the sentence of imprisonment for public protection and substituted two years’ imprisonment for false imprisonment, with no separate penalty for criminal damage.

2. The sentencing judge was entitled to find a significant risk of serious harm from further specified offences. Under section 229(2), the assessment could take account of the present and previous offences, the appellant’s established pattern of threatening and violent conduct towards his parents, and the probation and psychiatric evidence. The fact that neither the present nor earlier offences had caused serious harm did not determine the prospective assessment. Risk to particular members of the public, including the appellant’s parents, was capable of satisfying the statutory test.

3. The court nevertheless held that the notional determinate sentence of four years was manifestly excessive. The false imprisonment was serious and was aggravated by the appellant’s antecedents, particularly the previous false imprisonment of his mother. Its detention was, however, comparatively short; actual violence was modest; no weapon was used or brandished; and the incident was spontaneous. Full credit was required for the guilty plea at the first opportunity.

4. Although the dangerousness finding was justified, the statutory condition for imprisonment for public protection was not met on a correct assessment of the sentence. The least appropriate determinate sentence was two years’ imprisonment. The court directed that its judgment be sent to the Crown Prosecution Service for consideration of protective steps on the appellant’s release.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence and quashed the imprisonment for public protection sentence: [2009] EWCA Crim 1028.

• Crown Court at Manchester Minshull Street: On 1 December 2008, imposed imprisonment for public protection with a two-year minimum term for false imprisonment, with no separate penalty for criminal damage.