Vieira, R v

A finding that an offender is dangerous does not, by itself, authorise or require an extended sentence. Under Criminal Justice Act 2003, section 226A, the court must also establish an applicable statutory gateway. The gateway based on the intended custodial term is unavailable where that term is below four years. A foreign conviction can satisfy the alternative gateway only where Criminal Justice Act 2003, Schedule 15B treats the equivalent domestic offence as listed. Where neither gateway is met, an extended sentence is unlawful and must be quashed.

The applicant pleaded guilty at Snaresbrook Crown Court to robbery committed in September 2014. The offence involved a threat to kill, the taking of a mobile telephone, and repeated kicking and punching of the victim while he was on the ground.

On 19 February 2015, the Recorder imposed an extended sentence of four years and ten months, comprising three years and four months’ custody and an 18-month extended licence period. The Recorder found that the applicant posed a significant risk of serious harm, having regard to the index offence and three Portuguese robbery convictions.

The application for leave to appeal against sentence was referred to the Full Court. The central issue was whether the finding of dangerousness lawfully permitted the extended sentence imposed.

1. Appeal allowed. The court granted leave, quashed the extended sentence, and substituted a determinate sentence of three years and four months.
2. The Recorder was entitled to find that the applicant was dangerous within the meaning of the Criminal Justice Act 2003. The Portuguese convictions showed a pattern of robbery by mugging. The index offence was more serious, particularly because the applicant kicked and punched the victim while he was on the ground. Taken together, those matters supported a finding of significant future risk of serious harm.
3. That finding did not make an extended sentence mandatory. It also did not, by itself, provide a lawful basis for one. Under section 226A(3), an extended sentence was available on the relevant route only if the custodial term was at least four years. The Recorder had selected a custodial term of three years and four months, so that condition was not met.
4. The alternative route in section 226A(2) was also unavailable. Schedule 15B permitted account to be taken of an offence committed in an EU Member State only if, had it been committed in England and Wales, it would have fallen within Part I of that Schedule. Robbery was listed there only where the offender possessed a firearm or imitation firearm. There was no evidence that the applicant had done so in any Portuguese robbery.
5. As neither statutory alternative applied, the extended sentence was unlawful. The proper substitute was the three years and four months’ custodial term.

• Court of Appeal (Criminal Division): granted leave to appeal against sentence, allowed the appeal, quashed the extended sentence, and substituted a determinate sentence of three years and four months.
• Snaresbrook Crown Court: following a guilty plea to robbery, the Recorder imposed an extended sentence of four years and ten months on 19 February 2015.