Osborne, R. v

After finding an offender dangerous under the Criminal Justice Act 2003, the sentencing court must follow the statutory sequence. It must first decide whether the seriousness of the offence justifies life imprisonment. If it does not, it must consider an extended sentence, while retaining the discretionary possibility of a determinate sentence.

Potential release dates, licence arrangements and the likely approach of the Parole Board must be left out of account. A determinate sentence is unduly lenient where it fails to reflect the dangerousness finding or to provide sufficient public protection. On a reference under the Criminal Justice Act 1988, the question is whether the sentence was unduly lenient, not whether the sentencing judge made a gross error.

The offender was convicted by a jury at Portsmouth Crown Court of attempting to cause grievous bodily harm with intent. He had arranged for the victim, a sex worker, to attend his flat and then attacked her with a claw hammer. The attack followed his release on licence from a life sentence for manslaughter.

The sentencing judge found that the offender was dangerous but imposed a determinate sentence of 12 years' imprisonment. The Solicitor General referred the sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient. The central issue was whether the existing life sentence and the Parole Board's future role justified a determinate sentence rather than a life or extended sentence.

Decision

1. The court granted leave, held that the 12-year determinate sentence was unduly lenient, quashed it and substituted an extended sentence of 17 years: a custodial term of 12 years and a five-year extension period of licence.

2. The attempted offence fell within Category 1 of the applicable sentencing guideline. The planned use of a hammer, coupled with an intention to inflict more serious injury than was in fact caused, established high culpability. The victim was particularly vulnerable because she had been summoned after midnight to the offender's home.

3. The judge was entitled to find the offender dangerous within Part 12, Chapter 5 of the Criminal Justice Act 2003. His violent history, the commission of this offence six months after release from a life sentence, and the risk assessment established a plain and serious risk of further specified offending causing serious harm.

4. Section 224A did not require a further life sentence because the offender had been eligible for release within the first five years of his existing life sentence. Following the staged approach described in Attorney General's Reference No 27 of 2013 (Burinskas and others) [2014] 1 WLR 4209, the court had then to consider life imprisonment under section 225 and, if that was not justified, an extended sentence under section 226A.

5. Life imprisonment was not justified. Although the offence was grave, the victim did not in fact suffer really serious harm and the offender desisted after she fought back. An extended sentence was nevertheless fully justified. The sentencing judge had wrongly allowed the anticipated approach of the Parole Board to affect sentence. Potential release arrangements must be disregarded, and the determinate term did not provide sufficient protection for the public.

6. For a reference under section 36 of the Criminal Justice Act 1988, the governing question was whether the sentence was unduly lenient. It was not necessary to establish gross error.

• Court of Appeal (Criminal Division) — granted leave on the Solicitor General's reference under section 36 of the Criminal Justice Act 1988, quashed the determinate sentence and substituted an extended sentence.
• Portsmouth Crown Court — after conviction for attempting to cause grievous bodily harm with intent, imposed 12 years' imprisonment and found the offender dangerous.