| CRIME — Sentence — Protection of public from dangerous offenders — Assessing “dangerousness” — Further guidelines on sentencing — Criminal Justice Act 2003, s 229
Regina v Johnson
Regina v Hamilton
Regina v Lawton
Attorney General’s Reference (No 64 of 2006) (Andrew Jones)
Regina v Gordon
CA: Sir Igor Judge P, Goldring and Owen JJ: 20 October 2006
Strictly speaking, although punitive in its effect, a sentence of imprisonment for public protection did not represent punishment for past offending; it was concerned with future risk and public protection.
The Court of Appeal, Criminal Division, so stated when dismissing appeals against sentences of imprisonment for public protection by Paul Anthony Johnson and Jamie Lawton, allowing an appeal by Gerald Anthony Hamilton and refusing an application for leave to appeal by Tyrone Leslie Gordon. Johnson was sentenced on 13 February 2006 by Judge Globe QC at Liverpool Crown Court on his plea of guilty to manslaughter and affray to a term of imprisonment for public protection with a minimum term of 18 months. Hamilton was sentenced on 3 April 2006 by Judge Lorraine Smith at Southwark Crown Court on his conviction of attempted robbery, possession of an imitation firearm at the time of committing an offence and robbery to concurrent terms of imprisonment for public protection with a minimum term of four and a half years specified for each offence. Lawton was sentenced on 3 October 2005 at Sheffield Crown Court on his plea of guilty to criminal damage and arson, intending to destroy or damage or being reckless as to whether property would be destroyed or damaged for which he was sentenced for the offence of arson to imprisonment for public protection with a minimum term of two years. Gordon was sentenced on 27 October 2005 by Judge Goldsack QC at Sheffield Crown Court on his plea of guilty to an offence of wounding with intent to imprisonment for public protection with a minimum term of two years. The Attorney General was given to leave, under s 36 of the Criminal Justice Act 1988, to refer to the court the sentence of Andrew Jones, who was sentenced on 5 June 2006 by Judge Cutler at Winchester Crown Court to six months’ imprisonment for affray and a consecutive term of six years’ imprisonment for attempted murder.
SIR IGOR JUDGE P, in the reserved judgment of the court, said that invaluable understanding of ss 224-229 had been provided in R v Lang [2006] 1 WLR 2509 but their Lordships had decided that they should address some of the areas of potential misunderstanding arising from Lang in order to explain and amplify its guidance. S 229 provided statutory direction on the approach to the assessment of dangerousness which should be adopted by the sentencing court. It highlighted that it was not a prerequisite to a finding of dangerousness that the offender should be an individual with previous convictions. A man of good character might properly qualify for this sentence. The decision in Lang explained that sentencers should not allow the language of s 229(3) to obscure the ultimate responsibility of the sentencer to make the necessary assessment. The effect of Lang was that, in the end the question whether it was unreasonable to make the assumption of dangerousness on the basis of previous convictions for specified offences was left to his judgment. The sentencer was entitled to conclude, that notwithstanding the statutory assumption, the offender with previous convictions, even for specified offences, did not necessarily satisfy the requirements of dangerousness. Their Lordships addressed a number of specific issues. (i) Just as the absence of previous convictions did not preclude a finding of dangerousness, the existence of previous convictions for specified offences did not compel such a finding. There was a presumption that it did so, which might be rebutted. (ii) A pattern of minor previous offences of gradually escalating seriousness might be significant so that it was not right that unless the previous offences were specified offences they were irrelevant. (iii) It did not automatically follow from the absence of actual harm caused by the offender to date that the risk that he would cause serious harm in the future was negligible. (iv) Characteristics such as inadequacy, suggestibility or vulnerability of the offender might serve to mitigate the offender’s culpability but they might also serve to produce or reinforce the conclusion that the offender was dangerous. (v) If the prosecution failed to comply with the good practice of being in a position to describe the facts of previous specified offences, counsel for the defendant should be in a position to explain the circumstances, on the basis of his instructions, in which case, if the Crown was not in a position to challenge those instructions, then the court might proceed on the information it had. Failure to comply with best practice on this point should be discouraged but it did not normally preclude the imposition of the sentence. (vi) It was not obligatory for the sentencer to spell out all the details of the earlier specified offences but he should explain the reasoning which had led to his conclusion.
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