Update: sentencing

Review of case law on dangerousness '“ assessment of dangerousness

The Court of Appeal has indicated a reluctance to interfere with any assessment of dangerousness made by the sentencing judge unless it is shown to be unreasonable or unfounded. Some principles are emerging from case law giving examples of where assessments have been overturned. Some relate to defendants of previous good character in respect of whom the presumption of dangerousness does not apply.

In Xhelollari [2007] EWCA Crim 2052 the defendant was convicted of an offence of rape. It was agreed that this was a serious charge but the Court of Appeal held that it did not necessarily follow that every offence of rape required an indeterminate sentence for public protection to be imposed. There had to be some factors justifying the conclusion that there was a significant risk of serious harm posed by the offender of previous good character over and above the perceived vulnerability of the witness and the not guilty plea entered by the defendant.

Speculation about future behaviour or a mere apprehension of some risk of future harm did not amount to sufficient evidence on which to find dangerousness. This approach was also adopted in Winchester [2008] EWCA Crim 63 where the Court of Appeal also said that the information referred to in s 229(2) (b) included evidence of earlier good behaviour. In the case of Green [2007] EWCA 2172 it was confirmed that in assessing whether the criteria for dangerousness were met the nature of future specified offences was not relevant. All that was required is that the future offences are specified ones.

The defendant was convicted of causing death by careless driving when unfit through drink or drugs and causing death in an aggravated vehicle taking offence. He also pleaded guilty to unlawful wounding and he had a previous conviction for unlawful wounding. A sentence of imprisonment for public protection was imposed. The defence argued that the propensity of the defendant to get into fights and use a knife was not relevant to the fear of future offending in the context of causing death by careless driving while unfit. The Court of Appeal described this submission as 'hopeless' pointing to the fact that s 225 does not require any nexus of fact between previous convictions, the present offence and future offending in order for a finding of dangerousness to be made.

Although it might be rare for a finding of dangerousness to be made on the basis of material that had no close relationship with the offence falling to be sentenced the statutory framework does not require any connection as to the type of offending as long as it is a specified offence.

In Walsh [2007] EWCA Crim 3127 a sentence for public protection was quashed because the judge was held to have wrongly taken into account information about allegations of similar offences which remained unproved.

Indication of sentence

In the case of Kulah [2007] EWCA Crim 1701 the interaction between a Goodyear indication of sentence and the impact of the dangerousness provisions was considered. The court reiterated that a judge is not obliged to give an indication of sentence but if an offender may be subject to the dangerousness provisions then a qualified indication may be given.

This situation arose again in Seddon [2007] EWCA Crim 3022 when it was made clear by the Court of Appeal that a Goodyear indication in the Crown Court given prior to the possibility of determination of dangerousness cannot override the statutory obligation placed on the court to impose a sentence of imprisonment for public protection or an extended sentence.

Only if the sentencing court has made an assessment of dangerousness based on proper information will any decision that an offender is not dangerous be binding on a subsequent judge.

A tentative indication that an offender is not dangerous, given without benefit of reports, is not binding if the subsequent sentencer on receipt of full information is later satisfied that the dangerousness condition is met. In future defendants may not receive the benefit of a clear indication of sentence at an early stage when they could fall within the dangerousness provisions.

Young offenders

In Herbert [2007] EWCA Crim 3034 a youth convicted of causing death by dangerous driving was rightly held to be a dangerous offender but taking into account the proposition in Lang [2006] 2 Cr App R (S) 3, that young offenders have more potential to change and mature it was held that an extended sentence for public protection under s 228 with a finite term was more appropriate than an indefinite sentence of detention.

Concurrent or consecutive sentences

The case of Ashes [2007] EWCA Crim 1848 considered the complexities of dealing with offenders who were subject to the dangerousness provisions and qualified for a sentence for public protection or an extended sentence and who already were serving a custodial sentence. The three specific issues were identified as:

(a) How should the court set a minimum term of public protection on a prisoner serving a custodial sentence already;

(b) How should the court approach imposing a custodial sentence on a prisoner already serving a sentence for public protection; and

(c) What approach should be taken in both cases to time served in custody.

The answer to the final question appeared easiest to deal with and the court held that if the offender was in custody as a serving prisoner during his time on remand for the offence for which he fell to be sentenced then that time in custody would not be deducted. If he were in custody but not serving a sentence then the days should be taken into account under s 240 of the Criminal Justice Act 2003 and reference was made to the Remand in Custody (Effect of Concurrent and Consecutive Sentences of Imprisonment) Rules 2005.(SI 2005/2054.) which disapplied s 240 in respect of offenders serving a prison sentence.

More of a challenge is presented by the first two issues. What the decision appears to be is that where an offender is already serving a sentence then the court should try to impose a sentence for public protection that was concurrent with the existing determinate sentence but which also took into account the period remaining to be served under the determinate sentence (making allowance for a reduction of a half to include early release provisions). Then the court should consider the appropriate additional period for sentence for the offence being dealt with which also needed to be halved. The final sentence had to be fixed remembering the totality principle. In respect of a prisoner serving a sentence for public protection, a consecutive sentence was problematic as it is not known when the existing sentence would end. The provisional view of the court was that in dealing with a further offence an appropriate concurrent sentence should be imposed which could be determinate, indeterminate or extended. The commission of the other offence and sentence imposed for it could then be taken into account when release from the indeterminate sentence was considered.

Child pornography

The case of Terrell [2007]EWCA Crim 3079 concerned a defendant who pleaded guilty to offences of making indecent photographs of children contrary to s 1 of the Protection of Children Act 1978. He had downloaded images from a computer and copied them onto a CD. He was sentenced to imprisonment for public protection with a minimum term of five months. On appeal it was held that the offences were serious specified sexual offences under s 224 of the Criminal Justice Act 2003 and that because the defendant had previous convictions for similar offences, s 229 also applied. The court then had to go on to consider whether the offender posed a significant risk of specified re-offending which would cause serious harm to members of the public. The Court of Appeal held that it could not be reasonably said that there was a significant risk of any re-offending relating to further downloading of such images causing serious harm to a child or children.

The argument that such offences perpetuated the market in child pornography, caused further indecent images to be taken and caused harm to the children who may become aware of the photographs and the indecent purpose to which they are put was not accepted. It was held that the link was too remote to meet the condition that the defendant's re-offending would cause serious harm of the requisite gravity. The court said that if there was a risk to any particular child or some progression in terms of gravity of image or contact or of the network being widened by the offender then the dangerousness provisions might apply but they did not in the circumstances of this case. The appeal court also said that if a sexual offences prevention order could be imposed with effective restrictions to address the degree of risk and seriousness of harm then the statutory criteria of the Act might not be satisfied. A determinate sentence of 10 months imprisonment was imposed.

This case clearly provides authority for saying that a sentence of imprisonment for public protection cannot be imposed for downloading indecent images of children from the internet provided there is no perceived risk of an escalation in the nature of offending by the offender. Less clear are the comments made on the effect that other penalties or orders made by the court may have on the assessment of the risk of serious harm from future offending. However, the Act at s 150(d) prevents a community order from being made where the dangerousness provisions are found to apply, seemingly restricting sentencing options to imprisonment for public protection or an extended sentence. This restriction is expected to be relaxed under the Criminal Justice and Immigration Bill which in its amended form will allow the court discretion in relation to the imposition of imprisonment for public protection or an extended sentence if certain conditions are met.