Imprisonment - Length of sentence

R v Johnson: Court of Appeal, Criminal Division: 8 September 2011

In August 2005, the complainant went with a friend to a football match. They subsequently left the ground and went drinking. They left one public house in order to go to another and met a group, which included the defendant, whom they asked for directions.

The group led the complainant and his friend into some back lanes. The complainant and his friend became uneasy and attempted to turn back. The complainant's friend was asked for money and, whilst he argued with some of the group, others of the group approached the complainant. He was punched and kicked whilst on the ground and various items were stolen from him. The next thing the complainant recalled was being back at his hotel with, inter alia, a grazed knee and ripped jeans.

The blood on his jeans was found to match that of the defendant. When interviewed, the defendant denied it. Forensic evidence established that the defendant had to have been the person standing over the complainant, as his blood was on the complainant's jeans. The defendant had an extensive history of criminal convictions, most of which were for dishonesty of increasing gravity. The defendant later pleaded guilty to robbery.

The pre-sentence report stated that the root cause of his criminality was his abuse of alcohol and drugs. In March 2006, the defendant was sentenced to imprisonment for public protection for a minimum term of 18 months. A drug treatment and testing order which had been imposed in July 2005 in respect of a burglary offence was revoked. The defendant appealed against the sentence.

The issue was whether the judge had been right in principle to impose a sentence of imprisonment for public protection. The appeal would be allowed. The sentence imposed of imprisonment for public protection had not been just in the circumstances. The relevant law had required the recorder to start from the point of determining that the defendant posed a significant risk of causing serious harm to the public. He could decline to impose a sentence of imprisonment for public protection only if he was satisfied that that conclusion would be unreasonable.

The recorder had clearly had the relevant statutory provisions in mind and had sought correctly to apply them. In any view it was a borderline case. The defendant was not the prime mover and the offence did not appear to have been premeditated for more than the shortest of periods. The harm caused, although unpleasant, was not the most serious harm.

The recorder had been correct to have in mind the defendant's background of alcohol and drug abuse and he had undoubtedly posed a risk to the public of at least some harm. In conclusion, the defendant had posed a risk to the public, but the recorder had not been correct to conclude that such risk was of serious harm, as was required by the relevant statute.

The sentence of imprisonment for public protection for a minimum term of 18 months would be quashed and a determinate sentence of three years' imprisonment would be imposed. A consecutive sentence of two years' imprisonment for the burglary would be imposed and accordingly the total sentence would be five years' imprisonment.

A Cohen (assigned by the Registrar of Criminal Appeals) for the defendant.