R v Colin Stephen Nourse

Dangerousness is assessed at sentence on the assumption that the defendant will not be in custody and by reference to the immediate future. Risk at the point of release remains relevant when deciding whether a determinate sentence will protect the public. An extended sentence is unjustified where the relevant risk is unlikely to persist beyond the custodial term. A deprivation order imposed as punishment must be proportionate in the context of the total sentence. A significant financial penalty is not normally proportionate in addition to lengthy imprisonment.

The appellant was convicted at Maidstone Crown Court of possessing a firearm with intent to endanger life, contrary to section 16 of the Firearms Act 1968, after being acquitted of attempted murder. The judge imposed an extended sentence of 18 years, comprising 14 years in custody and four years on extended licence, and ordered deprivation of a Mercedes used to leave the scene. The appellant appealed against the extended sentence and the deprivation order, without challenging the 14-year custodial term. The central issues were whether the risk to the public justified an extended sentence and whether punitive deprivation of the vehicle was proportionate.

The appeal was allowed in part. The extended sentence and the deprivation order were quashed. A determinate sentence of 14 years’ imprisonment was substituted.

1. Extended sentence. The court accepted that the absence of previous violent offending and the appellant’s recognised remorse and insight had particular force. Dangerousness is assessed at the time of sentencing on the hypothesis that the defendant will not be in custody and by reference to the immediate future. That assessment is distinct from an assessment at the point of release. Nevertheless, the risk at release is relevant to the later question whether a determinate sentence will adequately protect the public. The court relied on R v Smith [2011] UKSC 37, R v J(M) [2012] EWCA Crim 132 and R v Baker and Richards [2020] EWCA Crim. 176.
2. The appellant would not have been released without licence conditions for another 14 years. The sentencing judge had himself recognised, when rejecting a life sentence, that any risk was unlikely to continue for a long time. In those circumstances, an extended sentence could not be justified.
3. Deprivation order. The Mercedes had been used to facilitate the offence, and the existence of power to make an order under section 153 of the Sentencing Act 2020 was not challenged. Where deprivation is punitive rather than directed at removing an illegal item from circulation, it must be proportionate in the context of the total sentence. The court applied R v De Jesus (Pedro) [2015] 2 Cr.App.R (S) 44, including the principle that a significant financial penalty is not normally proportionate alongside lengthy imprisonment.
4. The Mercedes had been purchased for £78,000 and remained worth tens of thousands of pounds. Deprivation therefore imposed a significant additional financial penalty and was disproportionate and wrong in principle.

• Court of Appeal (Criminal Division) — In [2024] EWCA Crim 1517, the court allowed the appeal in part, quashed the extended sentence and deprivation order, and substituted a determinate sentence of 14 years’ imprisonment.
• Crown Court at Maidstone — Following trial before His Honour Judge St John-Stevens and a jury, the appellant was acquitted of attempted murder but convicted of possessing a firearm with intent to endanger life. An extended sentence of 18 years and a deprivation order concerning the Mercedes were imposed.