Smith, R v

A sentencing court may impose imprisonment for public protection on an offender who is already serving, and has been recalled under, a life sentence. The discretion under the Criminal Justice Act 2003 is not expressly excluded by the existence of another indeterminate sentence where the statutory dangerousness criterion is met.

The release provisions of the Crime and Sentences Act 1997 contemplate more than one life sentence, including imprisonment for public protection. A substantial criminal record and aggravating features may justify a sentence substantially above guideline starting points framed for first-time offenders.

The appellant pleaded guilty at Harrow Crown Court to eight robberies and eight offences of possessing a firearm when committing a Schedule 1 offence. He used an imitation handgun during planned robberies of bookmakers and stole about £13,000.

On 10 October 2008, the judge imposed concurrent sentences of imprisonment for public protection with minimum terms of six years. The appellant had been recalled under an earlier life sentence and had an extensive record of serious robbery and firearms offending.

He appealed against sentence. He contended that an imprisonment for public protection sentence was wrong in principle because the life sentence already protected the public, and that the six-year minimum term was manifestly excessive.

1. Appeal dismissed. The judge was entitled to impose imprisonment for public protection. The statutory dangerousness criterion under section 229 of the Criminal Justice Act 2003 was plainly met. The appellant posed a significant risk to the public of serious harm through further specified offences.
2. The existence of the recalled life sentence did not constrain the express statutory discretion to impose imprisonment for public protection for the new offences. The sentencing judge had to determine the appropriate punishment for those offences and could properly record the contemporary finding of dangerousness.
3. Sections 34(2) and 34(4) of the Crime and Sentences Act 1997 treat both life imprisonment and imprisonment for public protection as life sentences. They provide for a prisoner serving life sentences and determinate terms to be released only when release is required in respect of each determinate term. The court considered that this structure was designed to address the existence of more than one indeterminate sentence and meant that release would not be required before the latest minimum term had expired.
4. The six-year minimum term, derived from a notional determinate sentence of 12 years, was not manifestly excessive. The robbery guideline starting points concerned first-time offenders. This appellant was a repeatedly convicted armed robber with a grave record, and the offences involved planning, disguise, an imitation firearm, vulnerable staff and a substantial loss. Those features amply permitted the notional 12-year sentence despite the late guilty plea.

• Court of Appeal (Criminal Division): dismissed the appeal against sentence.
• Crown Court at Harrow: on 10 October 2008 imposed concurrent sentences of imprisonment for public protection, each with a six-year minimum term, after guilty pleas to robbery and firearms offences.