By Anthony Edwards, TV Edwards, London


Dangerous offenders



Sentencing in relation to dangerous offenders is a matter that must be considered in any case involving a specified or serious specified offence.



This is the vast majority of sexual offences, and crimes of violence from the level of actual bodily harm. Even on a first offence, the court will need to consider the issue of dangerousness, and advocates and those conducting files for them will need to be prepared. This will often require preparation of a medical report.



If a specified offence is proved, and the court finds that there is a significant risk both of a further specified offence being committed, and that it will cause serious harm to a member of the public, then obligatory sentences apply. Serious harm means death or serious injury, whether physical or psychological.



In the case of both adults and youths, the sentence has to be an extended sentence that must carry a minimum custodial element of 12 months. Serious specified offences are specified offences, carrying ten years or more.



If such an offence is proved, and again the court is satisfied that there is both a significant risk of a further specified (but not necessarily serious specified) offence, and that the offence would cause serious harm to a member of the public, then, in the case of adult, either a life sentence must be imposed or imprisonment for public protection. In the case of a youth, detention for life, or an extended sentence, or detention for public protection are obligatory sentences. The approach to the imposition of these sentences was fully considered by Lord Justice Rose in the case of R v Lang [2006] Crim LR 173.



In the case of a youth who pleads guilty in the youth court when 17 years of age and who, following reports, is committed for sentence as a possible dangerous offender and reaches his 18th birthday before sentence is imposed, it is the age on the date of conviction that determines the powers of the court (see R v Robson [2006] Crim LR 935).



A large number of other cases, depending on their own facts, have now come before the Court of Appeal. These enable some general observations to be made on issues that will determine whether an obligatory sentence is required.



The court has tended to uphold imprisonment for public protection where the pre-sentence report indicates that there is a high risk of continuing dangerous offending, or that the offender does not fully recognise his responsibility for what has taken place, or does not understand the seriousness of the behaviour of which he has been convicted. While solicitors must not advise clients to mislead a probation officer, it is important that they do stress to clients the significance of every word they will exchange with probation officers preparing pre-sentence reports following conviction for a specified or serious specified offence.



In R v Davies [2006] Crim LR 558, there was no full understanding of the seriousness of the robbery. In R v Betteridge [2006] Crim LR 563, there was some evidence of denial. In R v Duncan [2006] Crim LR 450, there was both an admission of an attraction to children as young as seven years old, and no recognition by the defendant of the risk he represented. In R v Bennett [2006] Crim LR 667, there is a limited understanding of the impact of his behaviour. In R v Hillman [2006] Crim LR 662, there was a lack of insight and little remorse. In R v Manir (see [2006] Gazette, 21 September, 33), there was an unwillingness to explain the relevant behaviour and the use of alcohol as an excuse for the relevant actions.



On the other hand, there is also a significant group of cases in which the court did not uphold imprisonment for public protection. In almost every case, it was because the court was not satisfied that there was a significant risk that serious harm would be caused. This is often because the police had not provided evidence of psychological harm. This was the case in R v Johnson [2006] Crim LR 559, and there was no serious injury caused in the case of R v Shaffi [2006] Crim LR 665. In R v McGrady [2006] Crim LR 940, there was a significant risk that further specified offences would be committed but not a significant risk that they would cause serious harm on the particular facts.



These decisions will need to be carefully considered in the light of the decision in R v Johnson and other cases, (2006) The Times, 2 November. In that case, the court held that:

l the absence of previous convictions does not preclude a finding of dangerousness, and the existence of previous convictions for one or more specified offences does not compel such a finding, though it creates a rebuttable presumption;

l previous convictions for offences other than specified offences are not disqualified from consideration;

l it does not follow from the absence of actual harm caused by the offender to date, that the risk that he will cause harm in the future is negligible; and

l the inadequacy, suggestibility or vulnerability of the offender may go to his culpability, but they may also serve to produce or reinforce the conclusion that he is dangerous.



The defence should be able to explain the circumstances of a previous offence.



Minimum terms



There are three other areas where legislation requires that minimum terms be imposed on conviction. In the case of a third domestic burglary, a minimum sentence of three years must be imposed unless it is unjust in all the circumstances to do so, but there can be a 20% reduction in that sentence in the event of an early indication of a guilty plea. Similarly, where there is a third offence of drug trafficking in relation to a class-A drug, the court must impose a minimum sentence of seven years unless it is unjust in all the circumstances to do so, but again there is an opportunity to receive a 20% discount for an early indication of guilty plea.



The issue of whether it is unjust in all the circumstances to impose the minimum sentence is considered in a number of cases. In R v Parish [2006] Crim LR 772, the 12-year gap since the second drug trafficking offence made it unjust in all the circumstances to impose the minimum discounted sentence.



In R v Turner [2006] 1 CR APP R(S) 565, where the two previous convictions were for street-level dealing of the defendant's own drugs to feed his own habit, it was said to be unjust to impose the full discounted sentence. However, in R v McDonagh [2006] 1 CR APP(R) (S) 647, a slightly different approach was taken, where it was said that the mere existence of those circumstances did not make the minimum sentence unjust.



However, a significant time lapse since the second offence, the successful completion of a drug treatment and testing order, and a significant delay in the handling of the third prosecution did in all the circumstances make it unjust to impose the minimum sentence.



A minimum sentence is also required under section 51(A) of the Firearms Act 1968 in relation to a conviction for any offence listed in that provision. In these cases, the sentence must be imposed unless there are exceptional circumstances, and the sentence cannot be reduced even in the event of the earliest guilty plea. The provision requires that if the defendant is more than than 16 years of age but younger than 18, a period of three years' detention should be imposed. However, there is then a statutory error in the drafting of the section.



It states that if the defendant is 18 or older, the minimum sentence is one of five years' imprisonment. But it is still unlawful to impose imprisonment on a person who is older than 18 but younger than 21. The court considered this issue in R v Campbell [2006] Crim LR 654, which held that the error in the legislation meant that there was no minimum sentence for those who are in that age bracket. A discount for a guilty plea will be required in accordance with normal principles for this group.



It should be noted that under the provisions of the Serious Organised Crime & Police Act 2005, the mandatory minimum sentences do not have to be imposed where the defendant has entered into an agreement to give assistance to the Crown (see section 73(5)).