Gisanrin & Ors, R. v

An appellate court will not ordinarily disturb a sentencing judge’s assessment of offenders’ respective culpability or dangerousness where it was reasonably open on the evidence, particularly when the judge presided at trial. A sentence of imprisonment for public protection may properly be imposed where the statutory dangerousness threshold is met and the gravity of the offences, prior record, role, and continuing attitude justify it.

Later progress in custody will usually be relevant to release rather than to whether an imprisonment for public protection sentence was proper when passed. A disparity with a co-offender’s more favourable sentence does not make another sentence excessive where the difference is rationally explained by individual mitigation and sentencing discretion.

Three applicants sought leave to appeal against sentences imposed for their involvement in conspiracies to kidnap, falsely imprison and blackmail a man who was abducted, assaulted and held for about 22 hours while a ransom was demanded.

Gisanrin and Harjinder Khakh had pleaded guilty after an earlier trial ended without verdicts on some counts. Sukhdev Khakh was later identified, separately tried and convicted. The sentencing judges imposed imprisonment for public protection sentences on each applicant, with concurrent sentences for blackmail.

The applications challenged the findings of dangerousness, the use of imprisonment for public protection rather than extended sentences, the minimum terms, and alleged disparity arising from the sentences imposed on co-offenders.

1. The applications for leave to appeal against sentence were refused. The sentences were neither wrong in principle nor manifestly excessive.

2. The sentencing judge was entitled to assess the applicants’ relative roles. An appellate court does not retry an assessment of culpability that depends on trial evidence, unless the conclusion could not reasonably have been reached or was clearly wrong. That restraint was especially appropriate where the judge had presided over the earlier trial.

3. The findings of dangerousness were properly reached. The judges did not depend solely on the pre-sentence reports. They could take account of the applicants’ serious previous convictions, organising roles in a violent and grave offence, lack of candour about their involvement, and the absence of demonstrated change. Those matters entitled the judges to conclude that the statutory threshold for imprisonment for public protection was met.

4. Although imprisonment for public protection was advanced as a sentence of last resort, the sentencing judges were entitled to prefer it to an extended sentence. The seriousness of the offending, the applicants’ records and the risk to the public justified that discretionary choice.

5. Favourable prison reports and later apparent rehabilitation did not undermine the propriety of an imprisonment for public protection sentence when imposed. They could assist the applicants at the release stage and, exceptionally, might bear on a tariff, but would not normally justify appellate interference with the original sentence.

6. The different sentence imposed on Sukhdev Khakh, and the determinate sentence imposed on Walrond, did not establish impermissible disparity. The other judges were entitled to give weight to distinct mitigation and individual circumstances. Any greater good fortune of a co-offender did not render these applicants’ sentences excessive.

• Court of Appeal (Criminal Division): Refused the three applications for leave to appeal against sentence.
• Crown Court at Southwark: Imposed imprisonment for public protection sentences on Gisanrin and Harjinder Khakh on 2 March 2009. Following a separate trial, imposed an imprisonment for public protection sentence on Sukhdev Khakh on 1 April 2009.