R v Colin Barker

Where imprisonment for public protection is discretionary, the sentencing court must consider whether an extended sentence and other protective measures would adequately protect the public. Imprisonment for public protection, being the most draconian available sentence, should not be imposed if the overall sentencing package provides that protection.

A notional determinate term must also reflect timely guilty pleas and personal mitigation. An appellate court may replace an unjustified public-protection sentence with an extended sentence whose custodial and licence periods provide proportionate protection.

The applicant pleaded guilty in the Crown Court at Croydon to sexual offences against two child family members and to making indecent photographs of children. In February 2009, he received sentences described as detention for public protection, with a four-year minimum term, on four sexual-offence counts.

About 14 years later, after his release on life licence, he sought an extension of time and leave to appeal. He accepted that he was dangerous and that imprisonment for public protection was in principle available. He contended that the judge had failed to consider an extended sentence and had fixed an excessive notional determinate term.

1. Extension, leave and appeal allowed. The court accepted the applicant’s explanation for the long delay and granted an extension of time and leave to appeal.

2. The sentencing judge had erred in describing the sentence as detention for public protection. Given the applicant’s age when convicted, that form of sentence was unavailable; imprisonment for public protection was the relevant public-protection sentence.

3. Under sections 225 and 227 of the Criminal Justice Act 2003, imprisonment for public protection was discretionary and an extended sentence was available. Applying the approach in Attorney General’s Reference No 55 of 2008 (R v C and Others) [2008] EWCA Crim 2790, the court held that the judge had to consider whether an extended sentence and other available measures would provide adequate public protection. The sentencing remarks did not show why an extended sentence for this young adult of previous good character would be insufficient. Nothing in the offending or pre-sentence report justified treating imprisonment for public protection as unavoidable.

4. The notional determinate term of eight years was also excessive. Proper allowance for guilty pleas entered at an early stage, together with personal mitigation, meant that a sentence after trial of about seven years, reduced to five years, was appropriate.

5. The court quashed the public-protection sentences and substituted concurrent extended sentences on counts 6, 7, 11 and 15. Each comprised five years’ detention in a young offender institution and a five-year extension period. The substituted sentences took effect from the original sentencing date. The applicant had therefore completed his sentence and was no longer subject to licence.

• Court of Appeal (Criminal Division) — in R v Colin Barker [2023] EWCA Crim 1633, the court granted an extension of time and leave to appeal, allowed the sentence appeal, and substituted extended sentences.
• Crown Court at Croydon — on 11 February 2009, the applicant was sentenced to terms described as detention for public protection, with a four-year minimum term, for the sexual-offence counts.