R v Ishmale Hanson

Under the historic dangerous-offender sentencing regime, a finding of dangerousness did not itself justify detention for public protection. The court had to decide separately whether an extended sentence would adequately protect the public from serious harm.

For a young offender, the assessment must give proper weight to youth, maturity and the prospect of relatively rapid change and development. An indeterminate sentence was unjustified where the available material did not show that a substantial custodial term followed by extended supervision would be inadequate. In a sentence appeal, inadequate reasons are not a free-standing ground, but their absence may expose that the sentence lacked a sufficient evidential basis.

The appellant was aged 15 when he committed five robberies in May 2007. He had a substantial record for offending at a young age. Butterfield J, sitting in the Crown Court at Birmingham, found that he presented a significant risk of serious harm and imposed concurrent sentences of detention for public protection.

The appellant appealed, with an extension of time, on the grounds that the judge had failed to give proper weight to his youth and potential maturation, had not explained why an extended sentence would be inadequate, and had imposed an indeterminate sentence in error. The central issue was whether the material before the sentencing judge justified detention for public protection rather than an extended sentence.

1. Appeal allowed. The court quashed the concurrent sentences of detention for public protection and substituted concurrent extended sentences under section 228 of the Criminal Justice Act 2003.

2. The judge was entitled to find dangerousness under section 229. The appellant's repeated and serious offending, despite earlier custodial sentences, and the circumstances of the robberies permitted a finding of significant risk that future offending could cause serious harm. Although greater weight could have been placed on maturation, the finding was not wrong in principle.

3. That finding did not determine the sentence. Applying R v Lang [2006] 2 Cr.App.R (S) 3, the court had to decide separately whether an extended sentence would adequately protect the public. For a young offender, this required attention to the prospect of change and development and to maturity.

4. There was no sufficient basis for concluding that the required extended sentence would be inadequate. The offending record was that of a very young child. The pre-sentence report identified a prospect that custody followed by supervision could break the pattern of offending, and did not suggest that an indeterminate sentence was necessary. A substantial custodial term and extended licence would provide adequate protection. These considerations pointed away from what Attorney General's Reference No 55 of 2008 (R v C) [2009] 2 Cr.App.R (S) 22 described as the last but one resort for a dangerous offender.

5. The absence of explicit reasons was not a free-standing ground of appeal, consistently with R v Roberts [2016] 2 Cr.App.R (S) 14. It nevertheless reinforced the conclusion that the material did not justify detention for public protection. The substituted sentence on each count was five years and six months, comprising three years and six months' detention and a two-year extended licence period, concurrent and effective from 24 September 2007.

The court observed, without finally deciding the point, that the substituted extended sentences appeared already to have been completed.

• Court of Appeal (Criminal Division) — in [2023] EWCA Crim 203, allowed the appeal, quashed the detention-for-public-protection sentences, and substituted concurrent extended sentences.
• Crown Court at Birmingham — Butterfield J sentenced the appellant on 24 September 2007 to detention for public protection for five robbery offences, with a minimum term of 21 months less 151 days on remand.