R v Darren Hilling

A finding of dangerousness does not make imprisonment for public protection automatic. The sentencing court must make a fact-specific assessment of the available protective sentences. IPP is a draconian sentence of last resort, subject only to discretionary life imprisonment. If an extended determinate sentence, with any necessary additional orders and licence conditions, can provide appropriate public protection, it should be imposed instead. The judge must address that question and give reasons for choosing IPP. Relevant considerations may include age and continuing maturation, the offender’s previous record, whether there is an entrenched pattern of serious violence, the length of adult custody, and the protective measures available under an extended sentence. The later abolition of IPP does not itself justify altering a sentence lawfully imposed under the former regime.

The appellant pleaded guilty to wounding with intent to cause grievous bodily harm and was sentenced by the Crown Court at Ipswich to imprisonment for public protection, with a minimum term of four years less 27 days. The sentence was imposed in January 2011 under the then applicable provisions of the Criminal Justice Act 2003. He appealed solely on the ground that an extended determinate sentence should have been imposed instead. The dangerousness finding was accepted, and the length of the notional determinate sentence was not challenged. The central issue was whether the Recorder had properly exercised the statutory sentencing discretion by considering whether an extended sentence could provide the necessary public protection.

1. Appeal allowed. The dangerousness criterion in section 225 of the Criminal Justice Act 2003 was satisfied, but that finding did not make an IPP sentence inevitable. Following the principles stated in Attorney-General’s Reference (No 55 of 2008) [2008] EWCA Crim 2790; [2008] 2 Cr App R (S) 22, the sentencing court had to exercise a fact-specific judgment among the available protective sentences.
2. IPP was the most onerous protective sentence below discretionary life imprisonment and a sentence of last resort. If an extended determinate sentence, supported where necessary by additional orders, could provide appropriate public protection, it should be imposed instead. A judge selecting IPP therefore had to confront whether an extended sentence was sufficient and give reasons for concluding that it was not.
3. The Recorder knew that an extended sentence was available, but his remarks did not show that he had applied those principles or concluded that an extended sentence could not provide adequate protection. He gave no reasons for selecting IPP as the necessary remedy.
4. That conclusion could not be justified on the facts. The appellant had just turned 21, was still developing towards full adult maturity, and had no entrenched pre-existing pattern of offending involving serious harm. Most previous violent offending had occurred during his minority. The rehabilitative programmes and stringent release conditions, including MAPPA referral, relied on in support of IPP could also have been provided under an extended sentence. The practical difference between IPP and life imprisonment with the same minimum term was also relevant: R v Wilkinson [2009] EWCA Crim 1925, per Lord Judge CJ at [16].
5. The subsequent abolition of IPP did not itself justify reducing the sentence. The error lay in the original sentencing exercise: R v Roberts [2016] EWCA Crim 71; [2016] 2 Cr App R (S) 14. The IPP sentence was quashed and replaced with an extended sentence of 12 years, comprising eight years’ custody less 27 days and an extended licence period of four years. The appellant was entitled to immediate release.

• Crown Court at Ipswich: On 21 January 2011, the Recorder sentenced the appellant to imprisonment for public protection with a minimum term of four years less 27 days.
• Court of Appeal (Criminal Division): The appeal against sentence was allowed. The IPP sentence was quashed and an extended sentence substituted.