Roberts, R v

Dangerousness under section 225 of the Criminal Justice Act 2003 does not by itself permit imprisonment for public protection. Following the 2008 amendments, the statutory gateway also requires either a relevant previous grave offence or a notional minimum term of at least two years.

The notional term must be derived from a proportionate determinate sentence for the offence actually charged, with proper credit for a guilty plea. A court must not lengthen a sentence to meet the statutory gateway for public protection.

The appellant admitted attempted simple arson before Thames Magistrates’ Court and was committed to the Crown Court at Snaresbrook for sentence. He had a previous conviction for aggravated arson and longstanding mental-health and alcohol-related problems.

He had turned on two heaters in his occupied block of flats and placed blankets and towels over them. No fire started, and he immediately called the police and made full admissions. The Recorder imposed imprisonment for public protection with a two-year minimum term and refused credit for 80 days spent on remand.

The appeal concerned whether that sentence was available under the amended section 225 of the Criminal Justice Act 2003, the proper determinate sentence for attempted simple arson, and remand credit.

1. Appeal allowed. The sentence of imprisonment for public protection was quashed. A determinate sentence of 32 months’ imprisonment was substituted, with credit for the 80 days spent in custody before sentence.

2. The court upheld the Recorder’s finding under section 225(1) of the Criminal Justice Act 2003 that the appellant posed a significant risk of serious harm through further specified offences. His mental condition, alcohol misuse, previous arson conviction and the risk to neighbouring occupiers supported that finding. A life sentence was nevertheless not justified.

3. Under the amended section 225(3), dangerousness did not alone make imprisonment for public protection available. The appellant had no previous conviction for a grave offence in Schedule 15A. The alternative condition required a notional minimum term of at least two years. Applying the statutory effect explained in R v C and Others [2008] EWCA Crim 2790, that required a proportionate notional determinate sentence of at least four years.

4. The Recorder erred by treating four years as the appropriate determinate sentence after allowing for the guilty plea. The appellant was sentenced only for attempted simple arson, despite evidence which might have supported a more serious charge. Four years was appropriate following a trial, but his immediate admissions and prompt guilty plea required full credit, reducing the proper determinate sentence to 32 months.

5. The resulting notional minimum term was below two years. Section 225(3B) was therefore not satisfied, so imprisonment for public protection was unavailable. The court also held that the appellant was entitled to credit for his 80 days on remand.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence and substituted 32 months’ imprisonment for imprisonment for public protection: [2009] EWCA Crim 701.
• Crown Court at Snaresbrook: On 12 September 2008, imposed imprisonment for public protection with a two-year minimum term and directed that 80 days on remand should not count.
• Thames Magistrates’ Court: On 22 August 2008, the appellant admitted attempted arson and was committed for sentence under section 3(2) of the Powers of Criminal Courts (Sentencing) Act 2000.