Attorney-General's Reference No 14 of 2009 (Rupert Morgan)

On an Attorney-General’s reference, an appellate court may intervene in a discretionary sentencing decision only where compelling grounds show an error sufficiently material to justify doing so. A professional assessment of dangerousness does not bind the sentencing judge, but it must be rationally addressed.

Where an offender’s violent history, current weapon-enabled offending and risk evidence demonstrate a very high risk of serious reoffending and grave harm, public protection may require imprisonment for public protection. Sentencing guidelines must be applied to all relevant offences and aggravating features. A range intended for an offender of previous good character may be inadequate where there is serious prior offending, premeditation, group violence and grave injury.

Rupert Morgan was convicted at Harrow Crown Court of wounding with intent and robbery after a joint, armed attack during which the victim suffered grave and lasting brain injuries. The trial judge concluded that the dangerousness criteria were not met and imposed concurrent determinate sentences totalling nine years’ imprisonment.

The Solicitor-General sought leave to refer the sentence under Criminal Justice Act 1988, contending that the failure to impose imprisonment for public protection, and the length of the determinate term, made the sentence unduly lenient. The central issue was whether the trial judge’s sentencing discretion should be disturbed and, if so, what sentence should replace it.

1. The court granted leave for the Attorney-General’s reference and held that the sentence was unduly lenient. It quashed both determinate sentences and substituted sentences of imprisonment for public protection.

2. The court accepted that an appellate court should be slow to interfere with an experienced trial judge’s discretionary assessment. The Solicitor-General had to advance compelling grounds for intervention. A probation officer’s assessment of dangerousness was not binding on the judge, who had to make an independent judgment. However, the court could find no basis for disregarding the assessment in this case.

3. The offender’s repeated violent offending, drug-related robberies, use of weapons, current participation in a savage group assault, and conduct after conviction established a very high risk of further offending. His history also showed a very high risk that any future harm would be serious. Protection of the public therefore required imprisonment for public protection.

4. The nine-year determinate sentence was independently unduly lenient. The sentencing analysis had wrongly focused on the guideline for wounding with intent without also considering the robbery guideline. The relevant guideline ranges were directed to offenders of previous good character; this offender’s record was a substantial aggravating feature. The attack was premeditated, involved more than one armed offender, occurred during a robbery, included gratuitous violence, and caused exceptionally grave injury.

5. A determinate sentence would have had to be significantly into double figures. The court fixed a notional determinate term of at least 12 years and specified a period of six years before the offender could apply for parole, subject to deduction of time spent on remand. It emphasised that six years was not an appropriate determinate sentence for the offending.

• Court of Appeal (Criminal Division): On the Attorney-General’s reference under Criminal Justice Act 1988, the court held the sentence unduly lenient, quashed the determinate sentences and substituted imprisonment for public protection.

• Harrow Crown Court: Following convictions for wounding with intent and robbery, the trial judge sentenced Morgan on 23 January 2009 to nine years’ imprisonment for wounding with intent and six years concurrently for robbery, having found that the dangerousness criteria were not met.