Shah, R. v

A whole life order attached to a discretionary life sentence is a sentence of last resort. Save in wholly exceptional circumstances, it is reserved for the most serious offending involving loss of life or a substantively planned murder close to execution. A grave campaign of sexual offending may justify an exceptionally long finite minimum term, but not necessarily a whole life order.

When fixing a minimum term, the court normally takes account of the one-half release point for a determinate sentence. It may adopt a higher proportion where persuasive exceptional circumstances require it. The seriousness and extent of offending may be relevant both to the notional determinate term and to that exceptional adjustment without double counting.

Risk-assessment tools do not bind the sentencing judge, who must assess dangerousness on all the available material.

The court considered two Attorney General references concerning Joseph McCann and Reynhard Sinaga, each sentenced to life imprisonment with a 30-year minimum term for exceptionally extensive sexual offending. The Solicitor General contended that whole life orders should have been imposed.

It also considered Manish Shah’s application for leave to appeal against a life sentence with a 15-year minimum term. Shah, a general practitioner, had been convicted after two trials of 90 sexual offences against 24 patients. He challenged the findings of dangerousness, the use of a life sentence, and the notional determinate term of 30 years.

A further issue was whether the Attorney General’s reference concerning sentences from Sinaga’s first two trials had been made in time.

1. Attorney General’s references. The court granted leave to refer the McCann and Sinaga sentences and varied each life sentence by substituting a minimum term of 40 years. The original 30-year terms were unduly lenient. Each offender’s campaign of rape and associated offending was among the gravest of its kind, and each merited a notional determinate term of 60 years.

2. Whole life orders. A whole life order is the severest available sentence and ordinarily remains reserved for the most serious cases involving murder. The court endorsed the established approach that the possibility is not conclusively closed in non-homicide cases. However, it should arise only in wholly exceptional circumstances. Examples may include a substantively planned mass murder prevented close to execution. The offending of McCann and Sinaga, though exceptionally serious, did not meet that standard. A finite term of appropriate length could meet the requirements of retribution and punishment.

3. Minimum-term calculation. The court followed Attorney General’s Reference (No.27 of 2013) (R v Burinskas) [2014] EWCA Crim 334. It rejected the submission that the minimum term should be calculated by reference to the release provisions for an extended sentence. The usual approach is to take account of the one-half release point for a determinate sentence. Exceptionally, the custodial period may exceed one half. The court held that the scale and gravity of these offences justified a two-thirds period. Considering seriousness when setting both the notional term and the proportion to be served was a permissible staged assessment, not double counting.

4. Time limit in Sinaga. A “case” under paragraph 1 of Schedule 3 to the Criminal Justice Act 1988 means the proceeding in which sentence was passed. Separate proceedings are not one case merely because the prosecution was divided into trials for convenience. The reference was therefore out of time for the sentences imposed after Sinaga’s first two trials, but was in time for trials three and four.

5. Shah. Permission to appeal was granted, but the appeal was dismissed. The judge was entitled to find Shah dangerous under section 225 of the Criminal Justice Act 2003. His inability to resume medical practice did not eliminate the real possibility of further serious sexual offending. Technical assessment tools did not bind the judge. The prolific, planned abuse of trust, the manipulation of vulnerable patients, and the lasting harm justified a life sentence. The notional determinate term of 30 years was not manifestly excessive, and the 15-year minimum term stood.

• Court of Appeal (Criminal Division) — in [2020] EWCA Crim 1676, allowed the Attorney General’s references concerning McCann and Sinaga in part by increasing their minimum terms, and dismissed Shah’s sentence appeal.
• Central Criminal Court — Edis J sentenced McCann to life imprisonment with a 30-year minimum term; Judge Molyneux sentenced Shah to life imprisonment with a 15-year minimum term.
• Crown Court at Manchester — Judge Goddard QC sentenced Sinaga to life imprisonment with a 30-year minimum term after the final trials.