Penfold v R

A finding of dangerousness may properly rest on the overall evidence of a serious, planned offence against a vulnerable victim and the resulting reasonable apprehension of significant future harm. A refusal to admit guilt may form part of that assessment, but need not be its sole basis.

When fixing the minimum term for imprisonment for public protection, the court must respect the statutory maxima and apply totality. Where serious offences form a continuum on one occasion, their notional determinate terms may properly be concurrent rather than consecutive.

Penfold v R was an appeal against sentence from the Crown Court at Preston. The appellant had been convicted of sexual assault, administering a substance with intent, and theft after an attack on an elderly and disabled woman in her home.

The sentencing judge imposed concurrent sentences of imprisonment for public protection and set a minimum term of six years, having treated the notional determinate terms for the two principal offences as consecutive. The appellant challenged the finding of dangerousness, the length of the notional terms, concurrency, and totality.

The central issue was whether the dangerousness finding was open to the judge and whether a six-year minimum term properly reflected concurrent sentencing and totality.

1. The appeal was allowed in part. The finding that the appellant was dangerous was upheld. The judge was entitled to assess dangerousness from the overall picture: the serious psychological harm caused, the targeting of a vulnerable person, and conduct involving planning and determination. The appellant’s continued denial of guilt was only one element of that assessment.

2. The court distinguished Xhelollari [2007] EWCA Crim 2052. This was not a case in which dangerousness had been founded solely on a first-time sexual offender’s refusal to admit guilt. The sentencing judge had relied on a broader evidential basis, and her conclusion that the public might remain at significant risk was open to her.

3. The minimum term was nevertheless excessive. The court had regard to the ten-year statutory maximum for each principal offence and to the fact that the offences formed a continuum of wrongdoing on one occasion. The notional determinate sentences should have been concurrent.

4. A notional determinate sentence of nine years was appropriate for the sexual assault. The notional seven-year sentence for administering the drugs was not criticised. The court quashed the sentence and substituted a minimum term of 54 months, less 91 days on remand.

• Court of Appeal (Criminal Division): allowed the sentence appeal in part and reduced the minimum term: [2012] EWCA Crim 1222.
• Crown Court at Preston: convicted the appellant of sexual assault, administering a substance with intent, and theft; imposed concurrent sentences of imprisonment for public protection with a six-year minimum term.