R v Paul Elvis Fellowes

For a dangerous offender, imprisonment for public protection is a sentence of last but one resort. It may be imposed only where the court concludes that an extended sentence, with any appropriate support or orders, would not provide adequate public protection. The assessment is fact-specific and must consider the whole sentencing package, including the custodial term, the licence period, treatment and supervision.

A sentence of imprisonment for public protection cannot lawfully be imposed for unlawful wounding contrary to section 20 of the Offences against the Person Act 1861, because that offence was specified but not serious for the relevant statutory purpose.

The applicant was convicted at the Crown Court at Leicester of aggravated burglary, unlawful wounding and possessing a bladed article in a public place. In November 2010, the judge found him dangerous and imposed imprisonment for public protection for aggravated burglary and unlawful wounding, with a six-year minimum term.

About 11 years later, he sought permission to appeal his sentence out of time. He accepted the finding of dangerousness and the notional custodial term, but contended that imprisonment for public protection was unlawful for the wounding offence and unnecessary for the aggravated burglary offence.

The central issue was whether an extended sentence would have afforded adequate protection to the public.

1. Appeal allowed in part. The court granted the extension of time and leave to appeal. Although the explanation for delay was imperfect, the applicant’s intellectual limitations, his mistaken understanding of an indeterminate sentence, the unlawful sentence on one count and the failure to credit remand time justified the extension.

2. The sentence of imprisonment for public protection for unlawful wounding was unlawful. Unlawful wounding contrary to section 20 of the Offences against the Person Act 1861 was a specified offence, but not a serious specified offence for this purpose. The sentence on count 2 was therefore quashed and replaced with three years’ imprisonment.

3. For aggravated burglary, the sentencing judge was required to decide whether public protection could adequately be achieved by an extended sentence. The court applied the principles in Attorney General's Reference No 55 of 2008 (R v C and Others) [2009] 2 Cr App R(S) 22. Imprisonment for public protection was available only if the overall sentencing package could not provide appropriate protection.

4. The judge had been entitled to be concerned about the applicant’s dangerousness, but there was no sufficient basis for concluding that an extended sentence was inadequate. A 12-year custodial term followed by a five-year licence extension would keep the applicant in custody or under supervision until his mid-40s. His mental health had stabilised with treatment, and future supervision could monitor compliance with treatment and medication.

5. The sentence of imprisonment for public protection on count 1 was quashed. It was replaced by an extended sentence of 17 years, comprising 12 years’ custody and a five-year extension period. The concurrent 18-month sentence for possessing a bladed article remained. Time spent on remand was to count towards the custodial term.

• Court of Appeal (Criminal Division): allowed the appeal against sentence in part, quashed the unlawful and unnecessary sentences of imprisonment for public protection, and substituted lawful sentences.
• Crown Court at Leicester: following convictions on 3 March 2010, imposed sentences of imprisonment for public protection on 26 November 2010, with a six-year minimum term.