Morley, R v

For a dangerous offender convicted of a specified violent offence, the court must impose the least onerous sentence that adequately protects the public from serious harm. A sentence of detention for public protection is justified only where an extended sentence would not adequately address the risk. The assessment may take account of the offence, previous violence, conduct after the offence, and reliable evidence bearing on whether the risk is likely to diminish.

An offender aged 18 to 20 cannot receive imprisonment. Where the statutory conditions otherwise justify a public-protection sentence, the correct form is detention in a young offender institution for public protection.

The appellant was convicted in the Crown Court at Liverpool of causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861. He had brutally assaulted a pregnant 16-year-old, causing grave head and facial injuries. The sentencing judge found him dangerous and imposed imprisonment for public protection under section 225 of the Criminal Justice Act 2003, with a minimum term of seven and a half years less time on remand.

With leave, he appealed against sentence. He accepted the dangerousness finding and the notional determinate sentence, but contended that an extended sentence would have adequately protected the public. A further issue was that, because he was aged 20 when convicted, the sentence had been expressed in the wrong statutory form.

1. The appeal was allowed only to correct the form of sentence. The court upheld the minimum custodial term and the substantive decision that a public-protection sentence was necessary. It substituted detention in a young offender institution for public protection for imprisonment for public protection.

2. The statutory scheme required the court first to decide whether the offender posed a significant risk of serious harm through further specified offences. Having found such dangerousness, it had to impose the least onerous sentence capable of protecting the public. An extended sentence was available only if a commensurate sentence was inadequate; detention for public protection was available only if an extended sentence was also inadequate.

3. The dangerousness finding was plainly open to the sentencing judge. It was supported by the extreme violence of the offence, the appellant’s previous convictions for violence, and his threats to kill the victim if she identified him.

4. The judge had sufficiently considered the alternative of an extended sentence. His sentencing remarks showed that he did not regard release in the appellant’s twenties, even on an extended and conditioned licence, as adequate protection. That conclusion was justified. The appellant’s claimed change of lifestyle was weak evidence of reduced risk, given his conduct after the attack, his continued denial at trial, a later assault conviction, and adverse prison conduct. The sentence was neither wrong in principle nor manifestly excessive.

5. Under section 89 of the Powers of Criminal Courts (Sentencing) Act 2000, imprisonment was unavailable to an offender aged 18 to 20. The later purported variation was invalid because section 155(4) allowed variation only by a court constituted as it was when sentence was imposed. The Court of Appeal therefore made the required correction itself.

• Court of Appeal (Criminal Division): Allowed the appeal only to correct the sentence’s statutory form: [2012] EWCA Crim 2430.
• Crown Court at Liverpool: On 23 April 2012, the appellant was convicted of causing grievous bodily harm with intent. On 18 May 2012, he received imprisonment for public protection with a minimum term of seven and a half years less time on remand.