Smith, R. v

Where an offender meets the statutory dangerousness criteria, the sentencing court must assess the actual level of future risk. Serious ill health may reduce that risk sufficiently for an extended sentence to provide the necessary public protection, rather than imprisonment for public protection. The appropriate custodial term for the offence remains a separate assessment.

The appellant pleaded guilty at Wolverhampton Crown Court to assault occasioning actual bodily harm and was later convicted of attempted murder. She had arranged for the complainant to be attacked, poured petrol over him and tried unsuccessfully to ignite it.

The sentencing judge found her dangerous and imposed imprisonment for public protection with a six-year minimum term. She appealed her sentence. The central issue was whether, given her multiple sclerosis and deterioration in health, an extended sentence would provide adequate protection for the public.

1. Appeal allowed. The sentence of imprisonment for public protection was quashed and replaced with an extended sentence.
2. The court accepted that the appellant presented a continuing risk. The nature of the offending, and the assessment that she could pose a danger to persons entering a relationship with her, made continuing public protection necessary.
3. However, her multiple sclerosis and substantial deterioration in health placed her dangerousness at a lower level than would otherwise have been appropriate. In those circumstances, an extended sentence was the proportionate means of providing protection, rather than imprisonment for public protection.
4. The judge’s assessment that attempted murder warranted a determinate custodial sentence of 12 years was upheld. The court imposed a five-year extended licence period, producing a total extended sentence of 17 years. The 265 days spent on remand were to count towards the custodial term.

• Court of Appeal (Criminal Division): Allowed the sentence appeal in [2009] EWCA Crim 1862, quashed imprisonment for public protection and imposed an extended sentence.
• Crown Court at Wolverhampton: Following conviction for attempted murder, imposed imprisonment for public protection with a six-year minimum term.