McDonald, R v

A sentence of imprisonment for public protection may be justified where the gravity of the current offending, relevant previous convictions and a marked escalation in dangerous conduct demonstrate a significant and unquantifiable future risk of serious harm.

A discretionary life sentence under section 225 of the Criminal Justice Act 2003 remains reserved for offences of the utmost gravity. Public abhorrence of violent firearm offending does not alone place an offence in that highest category. The court must assess the seriousness of the offences actually proved.

The minimum term for an indeterminate sentence requires an evaluative assessment of the appropriate determinate term. It is not a purely mathematical exercise, and it may properly reflect that continued detention until safe release addresses future dangerousness.

The appellant was convicted at Preston Crown Court of robbery, wounding with intent to resist arrest, and possessing a firearm while committing an offence. During a planned armed robbery he used gratuitous violence and fired a loaded shotgun towards a uniformed police officer. The jury acquitted him of attempted murder.

The Recorder of Preston imposed life sentences for public protection on each count, with a minimum term of 10 years and 232 days. The appellant appealed with leave, challenging the use of an indeterminate sentence, the appropriateness of discretionary life imprisonment, and the length of the minimum term.

The central issues were whether he was dangerous, whether the offences actually proved justified a discretionary life sentence, and whether the minimum term was excessive.

1. Appeal allowed in part. The discretionary life sentences were quashed and replaced by sentences of imprisonment for public protection. The minimum term of 10 years and 232 days was upheld.

2. The Recorder was entitled to decide dangerousness on the evidence heard at trial and the information available, despite the absence of reports. The current offences involved serious planned armed robbery, gratuitous violence, and the firing of a loaded shotgun towards a police officer. The appellant also had previous firearm and burglary convictions, and his offending at age 47 represented a significant escalation from his earlier criminality. Those matters demonstrated a significant risk of serious harm to the public for a duration that could not be estimated.

3. The court applied the approach in R v Wilkinson & Ors [2009] EWCA Crim 1925. A discretionary life sentence under section 225 of the Criminal Justice Act 2003 is reserved for offending of the utmost gravity, where its denunciatory value reflects public abhorrence and the notional determinate term would be very long. Although these offences were exceptionally serious and publicly abhorrent, the acquittal on attempted murder was material. The offences of conviction did not fall within the highest bracket requiring life imprisonment.

4. The minimum term was not excessive. The appropriate determinate sentence was about 24 to 25 years. Fixing the minimum term was an evaluative exercise rather than a mechanical calculation. Since the indeterminate sentence itself addressed the appellant’s future safety for release, there was no basis to reduce the Recorder’s minimum term further.

• Court of Appeal (Criminal Division): In [2010] EWCA Crim 127, allowed the appeal in part by quashing the discretionary life sentences and substituting imprisonment for public protection; upheld the minimum term.
• Preston Crown Court: On 15 May 2009, imposed life sentences for public protection with a minimum term of 10 years and 232 days following convictions on 29 April 2009.