JW, R v

When deciding whether a young offender is dangerous enough to justify an indeterminate public-protection sentence, the court must assess the statutory risk in the light of youth, maturity and demonstrated capacity for reform. The gravity of the index offences may establish a risk of repetition, but it does not remove the need to evaluate substantial mitigating evidence.

A court may reject expert and probation assessments, but should give detailed reasons and address their conclusions in context. It should not give weight to an exclusion from school where that would effectively rely on an unproved allegation. For attempted murder, the appropriate sentence is assessed by reference to the minimum term for a completed murder, ordinarily reduced by about half and then adjusted for aggravating and mitigating factors.

The appellant was aged 14 when he shot the victim after an earlier confrontation. The first pull of the trigger misfired; the second caused a shoulder wound. He was convicted at the Central Criminal Court of attempted murder and possessing a firearm with intent to endanger life.

When he was sentenced at 15, the judge imposed Detention for Public Protection with a six-year minimum term. Although the pre-sentence and psychological reports assessed him as not dangerous, the judge relied on the gravity of the offences and on his exclusion from school.

The appellant renewed an application for leave to appeal against sentence. The issues were whether the statutory dangerousness threshold justified an indeterminate sentence and whether the notional 12-year determinate sentence was manifestly excessive.

1. Appeal allowed to a limited extent. The court quashed the sentence of Detention for Public Protection and substituted 12 years’ detention under section 91. Time on remand was to count towards that sentence.

2. The sentencing judge was not bound by the probationary and psychological assessments. However, having sought expert assistance, a court minded to reject the reports’ conclusion should explain its reasons in detail. The judge had selected passages from the psychological report without addressing the factors that led its author to find that the appellant was not dangerous.

3. Youth was a central consideration. Young offenders may change and develop in a much shorter period than adults, which is highly material to future risk. The reports and the appellant’s conduct in custody provided consistent evidence of increased maturity, remorse and capacity for reform. The court also held that it was inappropriate to attach weight to his school exclusion where its principal basis was an untested and denied allegation which the judge had said he would not treat as proved.

4. The seriousness of attempted murder using a firearm could in principle justify an indeterminate sentence even for a young offender. Yet the decisive question was whether there remained a significant risk of serious harm after the mitigating features had been evaluated. The judge had not clearly analysed why those features did not reduce the risk sufficiently. On the material available, the reports’ conclusions should not have been rejected and an indeterminate sentence was inappropriate.

5. On length, the court applied the approach in Ford, 2006 1 CAR(S) 36. It assessed attempted murder by considering the minimum term for a completed murder and then reducing it by about half, subject to aggravating and mitigating factors. Despite the appellant’s age and other mitigation, the seriously aggravating use of a firearm meant that a 12-year determinate sentence was not manifestly excessive.

• Court of Appeal (Criminal Division) — In [2009] EWCA Crim 390, the court allowed the renewed sentence appeal to the limited extent of quashing Detention for Public Protection and substituting 12 years’ detention.
• Central Criminal Court — HHJ Paget QC convicted the appellant of attempted murder and possession of a firearm with intent to endanger life, and imposed Detention for Public Protection with a six-year minimum term.