R v Steven Sillitto

An indeterminate sentence for public protection was a measure of last resort under the former dangerous-offender regime. Where an extended sentence, supported where necessary by ancillary orders, can provide appropriate public protection, it should be imposed instead. The assessment must focus on the offender’s future risk on release and the protective effect of an extended licence, notification requirements and a properly framed sexual-offences order. It must not focus disproportionately on the gravity of the index offences. On a sentence appeal, the court reviews whether the original sentence was wrong on the information then available. Later systemic difficulties affecting indeterminate-sentence prisoners do not retrospectively make the sentence wrong.

The appellant, aged 19, pleaded guilty in 2011 to two offences of trespass with intent to commit a sexual offence and an offence of possessing a bladed article. On 2 March 2012, the Crown Court at Newcastle upon Tyne imposed an indefinite sentence of detention in a young offender institution for public protection, with a three-year minimum term, and made a Sexual Offences Prevention Order.

Following a substantial extension of time, the Court of Appeal granted leave to appeal against sentence. Updated prison, probation, Parole Board and recall material was obtained. The central issue was whether, on the facts and information available to the Recorder at sentence, the indefinite sentence was wrong in principle because an extended sentence with appropriate protective measures would have sufficiently protected the public.

1. Appeal allowed. The Recorder erred in principle by imposing an indefinite sentence rather than an extended sentence. The appellant was properly found dangerous, but that finding did not itself require the most onerous protective disposal.

2. Under the former regime in the Criminal Justice Act 2003, an indefinite sentence for public protection was the penultimate protective measure. An extended sentence should be preferred where it could achieve appropriate protection, including through ancillary orders. The choice was fact-specific.

3. The court’s task was to review the legality and proportionality of the sentence on the information available in March 2012. Subsequent difficulties experienced by prisoners serving indeterminate sentences could not retrospectively establish error. Later evidence could, however, assist where the practical consequence of allowing an appeal might be release into the community.

4. The Recorder focused too closely on the grave facts of the offending when rejecting an extended sentence. He did not sufficiently assess the risk likely to be presented on release, the appellant’s youth and likely maturation, the effect of a first custodial sentence, or the protection available through an extended licence and a suitably drafted Sexual Offences Prevention Order. On the facts, those measures would have provided sufficient public protection.

5. The court quashed the indefinite sentence on Count 1 and substituted an extended sentence under section 227 of the Criminal Justice Act 2003 of nine years, comprising six years’ custody and a three-year extended licence period. It also quashed the original order and substituted a fixed-term Sexual Offences Prevention Order running until 17 June 2035, with additional restrictions directed to relationships, internet use, contact with children, association with sex offenders, and work involving children. The sentences on Counts 2 and 3 remained unchanged.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence and substituted an extended sentence and replacement Sexual Offences Prevention Order: [2025] EWCA Crim 868.
• Court of Appeal (Criminal Division): On 15 January 2025, granted an extension of time and leave to appeal against sentence, and directed further evidence concerning risk, recall and proposed protective orders.
• Crown Court at Newcastle upon Tyne: On 2 March 2012, imposed an indefinite sentence of detention in a young offender institution for public protection, with a three-year minimum term, and made a Sexual Offences Prevention Order.