Attorney Generals Reference No 114 - 115 of 2009

Where grave and persistent violent offending, viewed with relevant previous convictions, demonstrates a significant risk of serious harm through further specified offences, an indeterminate sentence for public protection may be required. A risk assessment report may assist the court but is not determinative; the statutory criteria can be established from the circumstances of the offending and criminal history.

When correcting an unduly lenient sentence, the court must set a minimum term reflecting punishment and deterrence. It may take account of double jeopardy, but should ensure that serious additional offending does not leave the offender serving no additional custodial period before parole eligibility.

The Solicitor General referred sentences imposed by HHJ Pegden QC at Woolwich Crown Court as unduly lenient under section 36 of the Criminal Justice Act 1988.

Jason McInerney had received concurrent determinate sentences for robberies and aggravated burglary committed while unlawfully at large. Those sentences did not extend the minimum term of an earlier sentence of imprisonment for public protection.

Wayne McInerney had received concurrent determinate sentences for two offences of causing grievous bodily harm with intent and one offence of inflicting grievous bodily harm. The sentencing judge found that he did not pose a significant future risk of serious harm. The common issues were whether the sentences were unduly lenient and whether sentences of imprisonment for public protection were required.

1. The references were allowed. The court quashed Jason McInerney’s determinate sentences for the two robberies and aggravated burglary, and substituted concurrent sentences of imprisonment for public protection with a minimum term of nine years from 19 November 2009. It left the remaining sentences undisturbed.

2. Jason’s determinate sentence was unduly lenient and an indeterminate sentence was inevitable. His offences were grave, numerous, weapon-related and committed while unlawfully at large to facilitate continued evasion. Although his age, guilty pleas and double jeopardy required allowance, the earlier sentence could not mean that this substantial additional offending added no time before his eligibility for parole. The appropriate notional determinate term was 18 years, producing a nine-year minimum term.

3. The court also held that Wayne McInerney’s total determinate sentence of four years was unduly lenient. On the material available, including the circumstances of the violent offending and his previous convictions, he met the statutory dangerousness criteria. The probation report supported that conclusion, although the court corrected or rejected several observations in it and held that the disputed matters were not decisive.

4. The court asked whether, at the expiry of an extended sentence, Wayne would still present a significant risk of serious harm through further specified offences, even with available licence conditions. It answered that question affirmatively. It therefore substituted concurrent sentences of imprisonment for public protection with a six-year minimum term from 19 November 2009 for counts 11 and 32. The sentence on count 33 was not disturbed.

• Court of Appeal (Criminal Division): On the Solicitor General’s references under section 36 of the Criminal Justice Act 1988, the court held the relevant Crown Court sentences unduly lenient and substituted sentences of imprisonment for public protection: [2010] EWCA Crim 1459.
• Crown Court sitting at Woolwich: HHJ Pegden QC imposed concurrent determinate sentences on 19 November 2009. The Court of Appeal substituted the sentences on the specified counts but did not interfere with the other sentences.