R v Harrison Fryer

An extended sentence is discretionary even where an offender is assessed as dangerous. It should be imposed only where a lengthy determinate sentence would not adequately protect the public. A sentencing court should ordinarily obtain a pre-sentence report when dangerousness is in issue, save in an extreme case, because an extended sentence has severe consequences and requires careful assessment of all relevant information.

A high assessed risk of harm does not itself establish that a lengthy determinate sentence is insufficient. The court must assess the offender's risk in the particular circumstances, including the protection provided by the substantial custodial term.

The applicant pleaded guilty at Basildon Crown Court to aggravated burglary and possessing an imitation firearm while committing an offence. He received an extended sentence comprising 12 years' custody and a three-year extension for the burglary, followed by three years' imprisonment for the firearm offence.

His co-accused had successfully challenged comparable extended sentences in R v Johnson and Others [2019] EWCA Crim 2503. The applicant appealed only the extended licence period. He contended that the sentencing judge should have obtained a pre-sentence report and had wrongly assessed him as dangerous without sufficient regard to factors bearing on future risk.

The central issue was whether a lengthy determinate sentence was insufficient to protect the public.

1. The appeal against sentence was allowed. The court extended time, granted leave, quashed the extended sentence for aggravated burglary, and substituted a determinate sentence of 12 years' imprisonment. The consecutive three-year sentence for the firearm offence remained unchanged.

2. The court adopted the reasoning in R v Johnson and Others [2019] EWCA Crim 2503. Under Criminal Justice Act 2003, a pre-sentence report is required unless unnecessary. A report should generally be obtained where dangerousness is considered, except in an extreme case. That is because an extended sentence has serious release consequences and dangerousness requires careful consideration of all relevant information.

3. The Probation Service assessed the applicant as presenting a high risk of harm, notwithstanding his maturity in prison. However, the court held that the risk was sufficiently reduced by the very lengthy overall custodial term. The violent gravity of the burglary did not establish that a 12-year determinate sentence was inadequate for public protection.

4. The court reiterated that an extended sentence remains discretionary after a finding of dangerousness. It may be imposed only where the judge is satisfied that a lengthy determinate sentence would not be appropriate. On the particular facts, that condition was not met.

5. The court also noted that the two-thirds release requirement applied only to the extended sentence, not to the consecutive determinate sentence. As the extended sentence was quashed, no further ruling on that error was necessary.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence. The extended sentence for aggravated burglary was quashed and replaced with a determinate sentence of 12 years' imprisonment.

• Crown Court at Basildon: On 8 October 2018, following guilty pleas, imposed an extended sentence under Criminal Justice Act 2003 for aggravated burglary and a consecutive determinate sentence for the firearm offence.