Lee, R v

Fact-specific appellate sentencing decisions which are not guideline cases do not create a court-made maximum sentence for later cases. The appropriate sentence must be assessed independently, within the statutory maximum, by reference to the gravity of the offending. A gross failure to secure dogs known to be dangerous, particularly after an earlier warning incident, may justify immediate custody where serious injury results. The sentence must nevertheless be no longer than sufficient to mark the offence’s gravity.

The appellant pleaded guilty in the Crown Court at Birmingham to two offences under section 3(3) and (4) of the Dangerous Dogs Act 1991, arising from one incident involving two dogs. His dogs entered the garden of his elderly neighbour, attacked her cats and then caused her a serious arm injury requiring surgery and a skin graft.

The Recorder imposed concurrent sentences of ten months’ imprisonment, ordered the destruction of the dogs and disqualified the appellant from keeping dogs for ten years. With leave of the single judge, the appellant appealed against the custodial term alone. The central issue was whether ten months was excessive, having regard to the appellant’s age and earlier sentencing decisions.

1. Appeal allowed to the extent of reducing the custodial sentence. The court accepted that immediate custody was appropriate. The appellant knew that both dogs were dangerous and capable of causing very serious, potentially fatal injury. An earlier incident in which a dog escaped and killed the neighbour’s cat was a clear warning. The appellant’s failure to ensure that the dogs were secure was gross, and the resulting injury to a vulnerable elderly neighbour was serious.

2. The two earlier sentence appeals relied on by the appellant were not guideline decisions and were factually distinct. Their reductions of sentence did not establish a four-month maximum for a guilty plea under the Dangerous Dogs Act 1991. Such a court-created maximum would be wrong, particularly where the statutory maximum was two years’ imprisonment.

3. Although the offending justified a substantial custodial sentence, ten months was more than sufficient to mark its gravity. Concurrent sentences of six months’ imprisonment were appropriate. The sentences of ten months on each count were quashed and concurrent sentences of six months substituted. The destruction and disqualification orders were unaffected.

• Court of Appeal (Criminal Division): In [2009] EWCA Crim 2046, the court allowed the sentence appeal to the extent of substituting concurrent six-month sentences.
• Crown Court at Birmingham: The appellant pleaded guilty on 28 May 2009 and, on 22 July 2009, received concurrent ten-month sentences, destruction orders for the dogs and a ten-year disqualification from keeping dogs. No citation is stated.