R v Ashley Eugene Gibson

A sentencing court must usually obtain a pre-sentence report before deciding dangerousness and imposing an extended sentence. It may proceed without one where, in the circumstances, it considers a report unnecessary and has sufficient information to assess risk and the need for public protection. The omission does not invalidate a custodial sentence. On a sentence appeal, fresh psychiatric evidence must satisfy the statutory conditions for admission and must be capable of providing a ground for allowing the appeal. A later diagnosis, without evidence addressing its effect on culpability or dangerousness at the time of the offences, will not ordinarily establish an arguable appeal.

The applicant pleaded guilty in the Crown Court at Southend to two aggravated burglaries, two assaults on emergency workers and criminal damage. On 13 October 2021 he received an extended determinate sentence of 13 years 2 months, including an eight-year custodial term and a five-year extended licence period.

Nearly three years later, he renewed an application for an extension of time to seek leave to appeal against sentence. He challenged the finding that he was dangerous and sought to adduce notes concerning a later ADHD diagnosis under section 23 of the Criminal Appeal Act 1968. The central issues were whether the sentencing judge should have obtained a pre-sentence report and whether the proposed fresh evidence could afford any ground for allowing the appeal.

1. Applications refused. The court refused both the 1028-day extension of time and leave to appeal. The proposed appeal had no arguable merit.
2. Under sections 280(2) and 30(2) of the Sentencing Act 2020, a court considering dangerousness must obtain and consider a pre-sentence report unless, in the circumstances, it considers one unnecessary. Section 30(4) provides that failure to obtain such a report does not invalidate a custodial sentence.
3. The sentencing judge was entitled to proceed without a report. Although obtaining one will usually be the better course, the judge had the admitted facts, the applicant’s extensive record and his conduct towards the police. Those matters supplied a sufficient basis for assessing dangerousness and the need for an extended sentence. The court distinguished the materially different circumstances considered in R v Allen [2019] EWCA Crim 1772, where the defendant was younger and had a much less serious relevant record.
4. On a sentence appeal, the requirements of section 23 of the Criminal Appeal Act 1968 apply to fresh evidence in the same way as on a conviction appeal. The court must consider whether the evidence appears capable of belief, may afford a ground for allowing the appeal, would have been admissible below, and whether there is a reasonable explanation for not adducing it earlier.
5. The proposed psychiatric evidence consisted only of clinical notes. It did not address whether ADHD affected culpability at the time of the offences or the assessment of significant risk of serious harm from further specified offences. It therefore could not afford an arguable ground for allowing the appeal.
6. The later treatment was potentially relevant to the Parole Board’s future consideration of release, but it did not undermine the sentence. The extension of time and leave to appeal were both refused.

• Court of Appeal (Criminal Division): renewed application for an extension of time and leave to appeal against sentence refused. The Crown Court sentence remained in force.
• Crown Court at Southend: on 13 October 2021, HHJ Samantha Leigh imposed an extended determinate sentence of 13 years 2 months following guilty pleas.