Fazli, R v

An extended sentence under Criminal Justice Act 2003 requires each statutory condition to be independently satisfied. Dangerousness is assessed prospectively. The court may consider all available information about the offender and any pattern of behaviour, rather than only admissible or charged facts. A significant risk of serious harm to one person or a limited group can satisfy the test.

However, the custodial-term gateway cannot be met by increasing a sentence beyond the term commensurate with the seriousness of the offence. The sentencing court must determine that term by reference to the qualifying offence, associated offences and admitted or proved facts. An extended sentence is unavailable where the proper term, including the appropriate guilty-plea reduction, is below the statutory threshold.

R v Fazli was a sentence appeal brought by leave of the Single Judge. At Southwark Crown Court, the appellant had received an extended sentence comprising four years’ custody and a 12-month extension for assault occasioning actual bodily harm. Concurrent three-month sentences were imposed for a common assault, criminal damage and cannabis possession.

The offences arose from serious and escalating domestic abuse of the appellant’s wife, including assaults and two incidents of throttling with a scarf. The sentencing judge considered that the appellant posed a significant future risk of serious harm and imposed an extended sentence under section 227 of the Criminal Justice Act 2003.

The appeal raised two questions: whether the dangerousness criterion was met, and whether a custodial term of at least four years was properly available.

1. Appeal allowed. The court quashed the extended sentence and substituted a determinate sentence of three years’ imprisonment for the assault occasioning actual bodily harm. The concurrent sentences for the remaining offences, and the direction crediting 200 days spent on remand, remained unchanged.
2. The dangerousness criterion was satisfied. Under sections 229(2)(b) and (c) of the Criminal Justice Act 2003, the judge could consider all available information about the appellant’s pattern of behaviour and personal circumstances. That material was not confined to admissible evidence, charged conduct or information tested by cross-examination. The judge was therefore entitled to rely on the victim’s statement and the pre-sentence and psychiatric reports.
3. Dangerousness is a forward-looking assessment. Although the appellant had not previously caused serious harm, the escalation of the domestic abuse and the two scarf-throttling incidents justified finding a significant future risk of death or serious personal injury to a future partner. The risk need only be to one member, or a limited group of members, of the public.
4. Nevertheless, the separate gateway in section 227(2)(b) was not met. The appropriate custodial term had to be commensurate with the seriousness of the qualifying offence, or associated offences, and could not be increased merely to reach four years or to enable rehabilitative work in custody. This reflected the principle stated in R v C and others [2008] EWCA Crim 2790.
5. On the admitted facts, even the maximum aggregate sentence available for the two violent offences after a contested trial was five and a half years. Giving the appellant the one-third reduction due for his early guilty pleas produced a maximum permissible aggregate below four years. The statutory condition for an extended sentence therefore failed.

• Court of Appeal (Criminal Division) — by leave of the Single Judge, allowed the sentence appeal and quashed the extended sentence: [2009] EWCA Crim 939.
• Southwark Crown Court — on 7 November 2008 imposed an extended sentence of four years’ custody with a 12-month extension for assault occasioning actual bodily harm.
• Westminster Magistrates’ Court — following guilty pleas, committed the appellant in custody to the Crown Court for sentence.