Delucca, R v (Rev 1)

When imposing imprisonment for public protection, the court must set the minimum term by reference to the penal element of the totality of the offences before it. Where determinate sentences for associated offences would properly have been consecutive, their total may be used to calculate the notional determinate sentence, even if it exceeds the statutory maximum for the specified offence carrying the indeterminate sentence.

Following the 2008 amendments, the qualifying two-year notional minimum term is assessed on that same totality basis, before remand credit. Earlier offences may be included if IPP is imposed for an offence committed after the regime came into force. Severe consecutive notional terms may be justified for distinct, grave conduct involving separate victims.

Three appeals concerning sentences of imprisonment for public protection (IPP) were heard together. In Delucca, the Criminal Cases Review Commission referred the earlier sentencing appeal after questioning whether the notional determinate sentence used to fix the minimum term could exceed the statutory maximum for the specified offence. In Murray, the issue was whether associated offences could be included when deciding whether the two-year qualifying notional minimum term introduced by the 2008 amendments had been met.

Stubbings challenged as manifestly excessive a 12½-year minimum term imposed for his central role in procuring and distributing extreme child pornography. The common issues concerned the lawful calculation of an IPP minimum term and the effect of associated offending.

1. All three appeals were dismissed. The earlier decision in Delucca was correct. An IPP is an indeterminate sentence, not a determinate term capped by the statutory maximum for the specified offence. Its minimum term determines when the offender may require the Parole Board to consider release.

2. The statutory scheme requires the court to reflect the seriousness of the specified offence together with associated offences. Since an indeterminate sentence should not ordinarily be made consecutive to a determinate sentence imposed at the same time, the notional determinate sentence must reflect the totality of the sentences which would otherwise have been imposed for all offences before the court. Thus, where determinate sentences would have been consecutive, the notional term for the IPP may exceed the maximum for the specified offence. The contrary observation in Lang applies where IPP is imposed for a single offence.

3. Under section 225(3B) of the Criminal Justice Act 2003, as amended by the Criminal Justice and Immigration Act 2008, the two-year qualifying notional minimum term is calculated on the same totality basis, before remand credit. The amendments did not alter the statutory requirement to include associated specified and non-specified offences. Offences committed before the IPP regime began may be included in the calculation, provided that the offence for which IPP is imposed was committed after the regime came into force; this does not impose a retrospective penalty.

4. In Stubbings, consecutive notional terms properly reflected separate, exceptionally grave conduct involving different child victims. The 25% guilty-plea reduction was justified by the overwhelming evidence. Although unnecessary to the outcome, the court also approved the view that remorse may be reflected in the sentence as a whole, including in personal mitigation or the level of plea discount.

• Court of Appeal (Criminal Division): The Criminal Cases Review Commission reference in Delucca, and the appeals of Murray and Stubbings from the Crown Court, were dismissed.
• Crown Court: Murray was sentenced at Birmingham Crown Court to IPP with a 4½-year minimum term. Stubbings was sentenced at Stafford Crown Court to IPP with a 12½-year minimum term less remand time. The earlier Delucca sentencing appeal had fixed a 5½-year minimum term for the IPP count.