Baker & Anor v R.

An offender’s recall to custody under an existing life sentence or imprisonment for public protection does not prevent the imposition of an extended sentence under Criminal Justice Act 2003. The sentencing court must assess dangerousness on the premise that the offender is at liberty. It must not treat the existing recall or the Parole Board’s future assessment as displacing its statutory discretion.

When deciding whether an extended sentence is appropriate, the court should focus on the public protection provided by the additional licence period. It must disregard the effect of delayed early-release provisions. A victim impact statement must provide a sufficient evidential basis for serious psychological harm, but expert evidence is not invariably needed. Serious aggravating features may nevertheless justify a sentence outside the ordinary guideline range.

These conjoined sentence appeals concerned two offenders convicted of robbery while recalled to custody under unrelated indeterminate sentences. Baker, who had been released from an IPP sentence, received an extended sentence of 10 years and 4 months at Canterbury Crown Court. Richards, who had been released from a life sentence, received an extended sentence of 11 years at Wood Green Crown Court.

Both appellants accepted the findings of dangerousness. They contended that an extended sentence was unlawful, unnecessary, wrong in principle or excessive because their existing indeterminate sentences and the Parole Board already protected the public. They also challenged the lengths of their respective custodial terms.

1. The court granted Baker leave to appeal out of time but dismissed both appeals against sentence.

2. The conditions for an extended sentence under Criminal Justice Act 2003, section 226A, were met. Following R v Smith [2011] UKSC 37 and R v J(M) [2012] EWCA Crim 132, dangerousness had to be assessed at the sentencing hearing on the premise that each offender was at liberty. Their recall under earlier indeterminate sentences was therefore irrelevant to whether they posed the statutory future risk.

3. The existing life or IPP licence regimes did not remove the sentencing court’s discretion. An extended sentence has a discrete protective function: it can provide an additional period of licence after the custodial term. The court was required to assess that protection without taking account of delayed early release under the extended-sentence regime. The decision in Brown v Parole Board for Scotland and others [2017] UKSC 69 did not assist, since it addressed different statutory provisions and issues. To the extent that earlier Court of Appeal decisions conflicted, R v Smith was to be followed.

4. In Baker’s case, the victim impact statement did not establish serious psychological harm. However, the prolonged robbery, restraint and terror of the victim, together with Baker’s grave violent record, justified a sentence outside the category 2B range. The custodial term of five years and four months after guilty-plea credit was not manifestly excessive.

5. In Richards’s case, the professionally planned robbery, the value targeted, his previous offending, breach of licence, concealment of identity, and the risk and gratuitous violence towards intervening members of the public justified placing culpability between categories A and B. The eight-year custodial term after credit for plea was appropriate.

• Court of Appeal (Criminal Division) — sentence appeals dismissed: [2020] EWCA Crim 176.
• Canterbury Crown Court — Baker pleaded guilty to robbery and received an extended sentence of 10 years and 4 months.
• Wood Green Crown Court — Richards pleaded guilty to robbery and received an extended sentence of 11 years.