MJ, R v

For imprisonment for public protection, the assessment under section 225(1)(b) of the Criminal Justice Act 2003 is predictive and must be made at the sentencing hearing, on the premise that the offender is at large. It does not require the sentencing judge to predict the risk at expiry of the minimum term. The judge may consider all relevant material bearing on future risk, including treatment, maturation and whether an extended sentence with protective orders would adequately protect the public.

R v Smith (Nicholas) did not displace that established approach. An indeterminate sentence remains appropriate where an extended sentence would not provide sufficient protection.

The appellant pleaded guilty in Plymouth Crown Court to raping his son, who was under three years old. The sentencing judge imposed imprisonment for public protection, with a minimum term of seven years less 59 days, and made ancillary protective orders.

On appeal, the appellant accepted that he was dangerous but contended that an indeterminate sentence was wrong in principle, that the minimum term was excessive, and that an extended sentence would provide adequate public protection. The appeal also raised the effect of R v Smith (Nicholas) [2011] 1 WLR 1795 on the assessment of risk under section 225 of the Criminal Justice Act 2003.

1. The appeal was dismissed save that the Sexual Offences Prevention Order was quashed. The order was inappropriate in light of the indeterminate sentence and the circumstances that would require consideration if the appellant were released.
2. The minimum term was not manifestly excessive. The sentencing judge was entitled to regard the rape of a two-year-old child by his father, involving a sustained assault to ejaculation and an extreme breach of trust, as falling outside the Sentencing Council guideline range. Its exceptional depravity justified an exceptionally long determinate equivalent.
3. Under section 225(1)(b) of the Criminal Justice Act 2003, dangerousness is assessed at the date of sentencing. The statutory question is whether there is a significant future risk of serious harm if the offender commits further specified offences, assessed on the premise that the offender is at large. The sentencing judge must not treat the offender’s present custody as eliminating that risk.
4. R v Smith (Nicholas) [2011] 1 WLR 1795 did not require the judge to predict the risk at the expiry of the minimum term. That later assessment is for the Parole Board, using information about the offender’s progress and conduct in custody. Smith addressed the time at which the sentencing court makes its predictive assessment, not the relevant material by which it reaches it.
5. The court endorsed the established approach of identifying the total protective sentencing package. The judge could take account of treatment, behaviour in custody and whether an extended sentence would sufficiently protect the public. Here, the judge had considered an extended sentence and permissibly concluded that it would not suffice. The imposition of imprisonment for public protection was therefore appropriate.

• Court of Appeal (Criminal Division): Appeal against sentence dismissed, except that the Sexual Offences Prevention Order was quashed.
• Plymouth Crown Court: On 21 October 2011, the appellant was sentenced to imprisonment for public protection with a minimum term of seven years less 59 days for rape of a child under 13.