Attorney General's Reference No. 53 of 2011

Detention for public protection is a last but one resort for a dangerous offender, subject to a discretionary life sentence. The court must consider whether an extended sentence adequately protects the public. It may nevertheless impose detention for public protection where the offender presents a significant risk of serious harm and the gravity and circumstances of the offending show that the more onerous protective sentence is required.

On an Attorney General’s reference, youth must be reflected in selecting the lowest sentence that is not unduly lenient. It does not prevent an increased minimum term for a premeditated and sustained violent sexual attack.

Following an eight-day trial in the Crown Court at Burnley, Farhan Ahmed, then aged 17 at the time of the offences, was convicted of four sexual offences committed during a prolonged attack on a woman in her home. The Recorder imposed detention for public protection with a five-year minimum term.

Ahmed sought permission, out of time, to appeal the detention for public protection. He accepted the finding of dangerousness but contended that an extended sentence was sufficient. The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient. The issues were whether detention for public protection was necessary and whether the five-year minimum term was unduly lenient.

1. The court granted the offender leave to appeal out of time but dismissed the appeal against detention for public protection. It also granted the Attorney General leave to refer the sentence and held that the five-year minimum term was unduly lenient.

2. Detention for public protection must be approached as the last but one protective sentencing option, subject to a discretionary life sentence. The court applied that principle, while recognising the offender’s youth, lack of previous convictions, family support and potential to mature in custody. However, dangerousness was unchallenged. The offender remained in complete denial, and the sustained, planned and armed sexual attack demonstrated a significant risk of serious harm from further specified offences. An extended sentence did not provide adequate protection. Detention for public protection was therefore required under the dangerousness provisions of the Criminal Justice Act 2003.

3. The minimum term required correction. The Recorder had not been assisted by Attorney General’s Reference Nos 73, 75 and 03 of 2010 (R v Anigbugu and Others) [2011] EWCA Crim 633, which concerned closely comparable home-intrusion sexual offending. The court considered the planned entry into the victim’s home, threats with weapons, vulnerability of the victim, repeated sexual assaults, duration of the ordeal and serious harm caused. Applying the lowest sentence which was not unduly lenient, it concluded that a 12-year sentence was appropriate.

4. The specified minimum term was increased from five years to six years.

• Court of Appeal (Criminal Division): In [2011] EWCA Crim 2598, granted the offender leave to appeal out of time but dismissed his appeal against detention for public protection. It granted the Attorney General leave under section 36 of the Criminal Justice Act 1988, held the minimum term unduly lenient, and increased it to six years.

• Crown Court at Burnley: Following conviction after trial, imposed detention for public protection with a specified minimum term of five years.