Kiely, R v

A sentence of life imprisonment under section 225 of the Criminal Justice Act 2003 is reserved for cases in which the offender’s culpability is particularly high or the offending is particularly grave. Dangerousness alone does not justify life imprisonment where an indeterminate sentence of imprisonment for the protection of the public will properly protect the public.

In fixing a reduction for substantial assistance to the authorities, the court should make an overall evaluation of the offending, mitigation and aggravation, and the quality and effect of the assistance. It should not apply a mathematical formula.

The appellant pleaded guilty at the Crown Court at Manchester to robberies, attempted robbery, firearms offences and arson committed during a period of about three and a half weeks. The firearms were discharged during two incidents, although no victim was struck. He had numerous previous convictions and the pre-sentence report assessed both his risk of reoffending and the risk of serious harm as high.

On 16 September 2008, the judge imposed life sentences under section 225 of the Criminal Justice Act 2003, concurrent on all counts, with a minimum term of five years less time spent on remand. The appellant appealed against sentence. The central issues were whether life imprisonment was justified, whether a determinate sentence would suffice, and whether adequate credit had been given for substantial assistance to the authorities.

1. The appeal was allowed in part. The court substituted a sentence of imprisonment for the protection of the public for the life sentence and reduced the minimum term to four years, less 360 days spent on remand.

2. The sentencing judge was entitled to find that the appellant was dangerous. The index offences, his previous convictions and the pre-sentence report justified the conclusion that there was a significant risk of serious harm from further specified violent offending. The judge was also entitled to rely on an OASys-based assessment: Boswell [2007] EWCA Crim 1587 confirmed that such assessment tools can properly underpin the conclusions of a report writer and sentencing judge.

3. However, dangerousness was not enough to justify life imprisonment. Applying Kehoe [2008] EWCA 819 Crim, the court held that, following the introduction of imprisonment for the protection of the public, life imprisonment under section 225 should be confined to offending of particular gravity or culpability. The robberies and firearms offences were very serious, but the appellant’s age and the availability of an indeterminate protective sentence meant that life imprisonment was not required. A long determinate sentence would not adequately protect the public.

4. The court also held that the reduction for assistance was insufficient. Consistently with P and Blackburn [2008] 2 Cr App R(S) 16, the assessment should not be mathematical. It required an overall evaluation of the offending and of the quality, quantity and practical value of the assistance, including the appellant’s information and evidence concerning a murder. That exercise justified the revised minimum term.

• Court of Appeal (Criminal Division) Allowed the sentence appeal in part and substituted imprisonment for the protection of the public with a minimum term of four years less 360 days on remand.
• Crown Court at Manchester On 16 September 2008, imposed concurrent life sentences under section 225 of the Criminal Justice Act 2003, with a minimum term of five years less 360 days on remand.