Waller, R v

When fixing the minimum term for imprisonment for public protection, the court must sentence the actual pattern of offending. Robbery guidelines based on a single offence by a first offender after trial do not set a ceiling for multiple planned knife robberies by an offender with serious, relevant convictions.

Where an offender reoffends while on an extant licence governed by section 116 of the Powers of Criminal Courts (Sentencing) Act 2000, the outstanding licence period may be reflected by adding the relevant days to the notional determinate term. The resulting minimum term must nevertheless remain proportionate.

The appellant pleaded guilty in the Crown Court at Peterborough to conspiracy to rob betting offices and to burglary and theft from a pharmacy. The conspiracy comprised three robberies or attempted robberies, involving planned attacks on bookmakers at closing time, disguises and large knives.

He had recent convictions for knife-point robberies and committed the present offences while on licence. On 3 December 2008, the Crown Court imposed imprisonment for public protection with a four-year minimum period, less 81 days on remand. The appellant accepted that imprisonment for public protection was justified but appealed the length of the minimum period.

Appeal allowed. The four-year minimum period was manifestly excessive. It was quashed and replaced by a minimum period of three years and 60 days, less 81 days on remand, leaving two years and 344 days to serve before eligibility for release on licence.

1. The robbery guideline correctly classified each robbery or attempted robbery as a level 2 offence because a weapon was used to threaten. Its suggested range, however, assumed conviction after trial for a single offence by a first offender. It did not adequately reflect three planned knife robberies, the terror deliberately caused to the victims, the appellant’s two recent robberies involving sharp weapons, and his commission of the offences while on licence.
2. Sykes [2008] 2 Cr.App.R (S) 3 and Attorney General's Reference No 149 of 2002 (Lockwood) [2003] 2 Cr.App.R (S) 94 provided useful comparisons, but each involved materially less serious antecedents. A nine-year notional determinate starting point was appropriate. A one-third reduction for the timely guilty pleas and the consequent halving produced a three-year minimum period.
3. Section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 remained applicable because of the transitional provision in the Criminal Justice Act 2003 (Commencement No 8 and Transitional and Savings Provisions) Order 2005. Applying the approach in R v O'Brien [2007] 1 Cr.App.R (S) 75, the outstanding licence period should be reflected in the notional determinate term. At least 120 days remained; adding half that period, 60 days, was appropriate.

The sentence remained an indefinite sentence of imprisonment for public protection.

• Court of Appeal (Criminal Division). Allowed the sentence appeal and substituted a minimum period of three years and 60 days, less 81 days on remand: [2009] EWCA Crim 1096.
• Crown Court at Peterborough. On 3 December 2008 imposed imprisonment for public protection with a four-year minimum period, less 81 days on remand.