R v AZV

The statutory assumption of dangerousness under section 229(3) of the Criminal Justice Act 2003 is rebuttable. The sentencer must exercise judgment on all available information and ask whether it would be unreasonable to conclude that there is a significant risk of serious harm from further specified offences. The seriousness of the anticipated offence alone cannot establish that risk. Relevant considerations include the current offence, previous offending and any pattern, social and economic circumstances, and the offender’s thinking, attitude, supervision and emotional state. A youthful, isolated incident committed in circumstances of sexual abuse and intellectual limitation may carry little weight in assessing a later, materially different offence. Where the statutory assumption cannot properly be applied, the court must impose the appropriate determinate sentence.

The appellant pleaded guilty in 2005 to sexual assault under section 3 of the Sexual Offences Act 2003 and received imprisonment for public protection, with a 15-month minimum term. The sentence was imposed by the Crown Court at Carlisle under sections 225 and 229 of the Criminal Justice Act 2003.

The appellant’s relevant previous conviction was for an indecent assault committed at age 15 against his younger brother. The sentencing judge treated that offence and the later sexual assault as showing a risk of further specified offending. On appeal, the issue was whether the judge had correctly applied the rebuttable statutory assumption and whether the circumstances justified a sentence of imprisonment for public protection, in light of R v Lang [2005] EWCA Crim 2864; [2006] 1 WLR 2509.

1. Appeal allowed. The sentence of imprisonment for public protection was quashed and replaced with a determinate sentence of 30 months’ imprisonment. A later request to alter that term was refused.
2. Section 229(3) of the Criminal Justice Act 2003 creates a rebuttable assumption of significant risk of serious harm from further specified offences. The judge correctly understood that the assumption was rebuttable and did not think imprisonment for public protection was automatically mandatory.
3. Applying the guidance in R v Lang, the court held that the judge nevertheless erred in deciding that it would not be unreasonable to conclude that the relevant risk existed. The assessment had to consider the nature and circumstances of the current offence, the offender’s previous offending and any pattern, social and economic factors, and the offender’s thinking, attitude towards offending and supervision, and emotional state. The sentencer must not infer significant risk merely from the seriousness of the anticipated offence.
4. The earlier offence, committed by the appellant at 15, bore the hallmarks of youthful sexual experimentation. It had occurred against a background of intellectual limitation and the appellant’s own intrafamilial sexual abuse. It was not properly open to the judge to derive a pattern of behaviour from that incident and the materially different later offence. The absence of intervening sexual misconduct and the appellant’s willingness to undertake therapeutic intervention further weakened the risk assessment.
5. Once the judge had correctly concluded that the relevant risk could not be inferred from the later offence alone, he should have considered it unreasonable to apply the statutory assumption. The appropriate sentence was therefore a standard determinate sentence of not more than 30 months, and 30 months was substituted.

• Crown Court at Carlisle: following a guilty plea, HH Judge Phillips imposed imprisonment for public protection with a 15-month minimum term, less 121 days spent on remand.
• Court of Appeal (Criminal Division): allowed the appeal, quashed the sentence and substituted 30 months’ imprisonment: [2023] EWCA Crim 818.