O'Brien & Ors v R

Three separate cases, one with two appellants, were listed before us because the three cases raised the same question: “Can a sentence of imprisonment for public protection (“IPP”) under section 225 (2) of the Criminal Justice Act 2003 be ordered to run consecutively to another sentence of IPP?”. The cases also raise another practical and linked question: “If a court wishes to order a defendant to serve the remaining period of a previous sentence of imprisonment pursuant to section 116 of the Powers of Criminal Courts (Sentencing) Act 2003 and is also sentencing the defendant to a sentence of IPP, how may that be achieved?”. (It should be noted that section 116 has been repealed by the Criminal Justice Act 2003 except in respect of offences committed before 4 April 2005. See Archbold 5-364 & 5-364n and the Comment in Sentencing News, June 5 2006, page 8 and the cases cited therein.) Although these cases concern sentences of IPP the same principles must, it seems to us, also apply to sentences of life imprisonment under section 225(2) of the Criminal Justice Act 2003 and sentences of detention for life or for public protection under section 226 of the same Act.

One of the appellants, Llewellyn, appeals his sentence by certificate of the sentencing judge. The Registrar referred the other applications for leave to appeal to the Full Court and we granted leave. To the extent to which any extension of time is required we grant it.

We start with O’Brien and Harris, both of whom were aged 23 at the time of sentence. On 5^th September 2005 at the Crown Court at Chester O’Brien pleaded guilty on re-arraignment to one count of assault with intent to rob (T20057261). On 4^th July 2005 at the Crown Court at Chester O’Brien and Harris pleaded guilty to one count of robbery (T20057262). On 3^rd November 2005 (following a Newton Hearing in relation to Harris in which the judge found against Harris) they were sentenced by HHJ Elystan Morris. The sentences which the judge must have meant to pass were as follows.

Their applications for leave to appeal sentence were referred to the Full Court by the Registrar on the basis that the case of O’Brien raised the novel point of whether a sentence of IPP could be made to run consecutively to a separate sentence of IPP. Harris was referred simply because he was O’Brien’s co-accused.

We start with indictment T20057261. On 17^th April 2005 a 21 year Chinese student, Mr Leang, was walking to work. He noticed O’Brien standing outside a newsagents with two male companions. He took out his mobile phone to make a call. O’Brien jumped on his back and reached for Mr Leang’s phone. Mr Leang attempted to get O’Brien off his back, fell to the floor and shouted for help. O’Brien put his hand over his mouth and punched him on the head, causing his glasses to fall to the floor.

Mr Leang managed to put his phone into his pocket and stood up to face O’Brien. He recognised O’Brien as a customer from his shop. He asked O’Brien what he was doing and O’Brien punched him in the face forcing him to fall to the ground in a dazed state. He got up and one of O’Brien’s companions pushed him to the right shoulder forcing him to stumble back. O’Brien then punched him to the lip and then pushed him in the back shouting “Come on, come on”. O’Brien and his companions walked off and Mr Leang telephoned the police. On apprehension, O’Brien said “It was me, I had a fight with someone who hit me.’ O’Brien was granted bail.

We turn to indictment T20057262. On 26^th June 2005 the complainant had been drinking in Chester and approached O’Brien and Harris to ask directions to a taxi. The appellants told him that they were going to get a taxi and that he could follow them. The complainant was a stranger to Chester. They walked, engaged in general conversation when the complainant was struck in the face by one of the appellants. As he fell to the floor his watch came off and was picked up by one of the appellants. The complainant was then punched and kicked, mainly around the face. One of the appellants pulled at the complainant’s necklace causing it to break and his gold link bracelet was pulled from his arm. An attempt was also made to pull the other two gold bracelets from his arm. The complainant managed to get to his feet, attempted to get away, but was pulled back and attacked again. The complainant then managed to get away. As a result of the attack, the complainant sustained facial cuts requiring stitches, swelling and bruising to the left eye area and bruising to his chest. The incident was captured on video. The appellants were arrested shortly after.

O’Brien is 23 years of age and has no previous convictions. He received a caution in 2004 for using threatening, abusive or insulting words or behaviour likely to cause distress.

Harris is 23 years of age and has 3 convictions for 9 offences. His first conviction was in 2001 for taking a vehicle without consent for which he was sentenced to 12 months detention in a young offenders institution. He was sentenced to a community punishment order in 2004 for a bail offence, a common assault and damage to property. In 2004 he was further convicted of having a bladed article in a public place and sentenced to a community punishment order.

A pre sentence report (“PSR”) prepared for O’Brien described his behaviour of 26^th June 2005 as indicative of a propensity to commit opportunistic offences including the use of violence. His minimisation of responsibility for his behaviour indicated that his risk of reconviction was at a raised level. In a later PSR, requested after O’Brien had pleaded guilty to the assault with intent to rob, it was pointed out that both these offences were serious specified offences under the Criminal Justice Act 2003 and both carried a potential sentence of life imprisonment. Both offences involved the appellant in unprovoked attacks on members of the public. As he previously only had a caution recorded against him, this was a significant escalation in his offending behaviour and his potential to cause harm to others was therefore increased. His risk of re-offending and therefore his risk of causing harm were high until he undertook a specific programme of work to address the underlying issues relating to his offending behaviour.

In his PSR Harris was assessed as being at medium risk of causing serious harm to the public, with an increased risk of harm when under the influence of alcohol and in the company of his peers. A further report was requested as the offence of robbery is a serous specified offence as defined in the Criminal Justice Act 2003. The report writer concurred with the risk assessment in the first report. In committing this offence the appellant displayed the potential to cause serious harm to the victim. However he had shown good insight into the factors behind his offending behaviour and if he remained motivated to address these issues then his risk of both offending and of causing harm would be reduced. The appellant did not have a previous conviction for a relevant offence (section 229(3) of the Criminal Justice Act 2003). He did not have an established pattern of violent offending and provided he undertook the work outlined in the reports, any potential risk he may pose could be reduced for his release.

We summarise the sentencing remarks. In relation to O’Brien, the second offence was committed whilst on bail for the first offence and required a consecutive sentence. Both offences were committed against people who appeared to be vulnerable at that stage and unlikely to offer any resistance to the violence used and threatened. O’Brien attacked a vulnerable Chinese student and had two other persons with him at the time. Mr Leang had been left feeling very uncomfortable and very vulnerable. The injuries that were sustained were bruising injuries but nevertheless nasty and O’Brien had used quite a bit of violence. The offence on 22^nd June was an even more cowardly attack. It was a wholly cynical joint enterprise and the camera film very adequately showed what happened leading up to the attack. The guilty pleas were taken into account. O’Brien had pleaded guilty in respect of the robbery in June almost at the very first opportunity. In respect of the robbery in April, O’Brien pleaded guilty on the day of trial and he was of previous good character. The discount for Harris’s guilty plea would be substantially reduced as he had insisted on a Newton hearing. Harris’s record was not of the worst but he had served 12 months youth custody for the taking of a vehicle and he had also been convicted of common assault and of having an unlawful blade in a public place.

The judge had no doubt that the appellants posed a significant risk to society in accordance with sections 224 and 225 of the Criminal Justice Act 2003. They both acted in a less than human way under the influence of alcohol. It might well be that if one could take alcohol completely out of the equation neither of them was a significant risk to society but bearing in mind their track record in relation to the abuse of alcohol one could not with any confidence say that that must be omitted from the equation at that stage. The judge concluded that each appellant was a significant risk to members of the public within the meaning of section 225(1)(a) of the Criminal Justice Act 2003. This was not a case that would in any way justify a sentence of imprisonment for life and therefore the court was left with no option but to impose a sentence that was indeterminate and also to pass what might be described as the basic sentence that would be passed were it not for sections 224 and 225 of the Criminal Justice Act 2003.

The judge continued in so far as the “basic sentence” was concerned:

“… the sentence that I impose … in your case O’Brien, for the first robbery 12 months imprisonment; for the second robbery, 2½ years imprisonment, making 3½ years in all. In your case Harris, 3 years imprisonment.”

The judge explained that O’Brien had received the full discount for his plea and Harris had received a “half of that discount”. He continued:

“The effect of these sentences is this. In your case … O’Brien with regard to the total sentence of 3 years and 6 months and in your case Harris of 3 years. You will be eligible after having served one half of that sentence to release ….”

The judge then said that “the time spent on remand, 128 days in the case of each of you will of course be discounted ….”

We quote the Registrar’s note to the Court:

“O’Brien

Both offences are specified offences and serious offences. The Learned Judge mentions a period of 12 months’ imprisonment for the assault with intent to rob and 2 ½ years imprisonment for the second robbery, making a total of 3 ½ years imprisonment. It appears that the Learned Judge was here identifying the notional determinate sentence which would have been imposed if imprisonment for public protection had not been required as he then goes on to explain that the effect of the sentence would be that he would be eligible for release after having served one half of that sentence.

Harris.

The Learned Judge mentions a period of 3 years’ imprisonment. It appears that the Learned Judge was here identifying the notional determinate sentence which would have been imposed if imprisonment for public protection had not been required as he then goes on to explain that the effect of the sentence would be that he would be eligible for release after having served one half of that sentence. The minimum term would therefore be 18 months imprisonment. The Learned Judge ordered that the 128 days spent on remand be deducted from the sentence. The Crown Court record sheet records the minimum term as 3 years’ imprisonment.

We agree with this note and we have therefore set out the sentences which the judge must have meant to pass. It would in any event have been necessary to allow this appeal in order to ensure that the actual sentence reflected the judge's intentions. In the remainder of this judgment we shall treat the intended sentences as those which are now appealed.

The Crown Court record sheet shows O’Brien’s sentence for the assault with intent to rob as 12 months imprisonment consecutive to an indeterminate sentence with a minimum term of 2 years and 6 months 128 days remand time allowed. The record sheet for the robbery reads:

“30 months imprisonment consecutive to T20057261 [assault with intent to rob] Indeterminate sentence of imprisonment with minimum term of 2 years 6 months 128 days remand time.”

According to the prison warrant prepared for O’Brien the sentence was an indeterminate sentence of 3 years 6 months with 128 days remand to be served. We note that O’Brien was told by HMP Altcourse, Liverpool that he would have to serve the full sentence of 3 years and 6 months and thereafter the Parole Board would determine whether or not he was to be released on licence and the length of that licence and that he was to be treated as a person serving a life sentence, the sentence he received being an indeterminate sentence.

One can only feel sympathy for those who have to sentence, record the sentence and implement the sentence.

It is sufficient for us to note that great care must be taken in passing sentences of IPP or life imprisonment and in setting the minimum term (sometimes called the “specified” period) so that the problems encountered by the appellants do not arise.

The grounds of appeal for O’Brien did not include a ground relating to the order that the two IPPs be served consecutively. That problem was identified within the Registrar’s office, to the credit of the relevant member of the Registrar’s staff.

At the conclusion of the hearing we announced that the appeal of Harris was allowed to the extent that the sentence of IPP was quashed. We substituted a sentence of 3 years imprisonment, and we directed that the 128 days “for which the [appellant] was remanded in custody” “is to count as time served by him as part of his sentence” (section 240(3) of the Criminal Justice Act 2003).

We are of the opinion applying sections 224 (3) and 226 (1)(b) of the Criminal Justice Act 2003 and Lang and others [2005] EWCA 2864 (which post dated the sentence in this case) that there is not a significant risk to members of the public of serious personal injury (whether physical or psychological) occasioned by the commission by Harris of further specified offences. This was an unpleasant robbery but neither the facts of the robbery nor the other convictions nor the PSR support a finding that Harris poses a significant risk to members of the public of serious personal injury

We reserved judgment in the case of O’Brien. It is accepted on his behalf that sentence of IPP were appropriate for the offences in question and we affirm those sentences. For reasons which we shall explain later the order that the two sentences of IPPs be served consecutively is quashed.

We turn to the requirement in section 82A of the 2000 Act to order that the early release provisions shall apply to the offender as soon as he has served the part of his sentence specified in the order, which we shall call "the minimum term." The starting point is the notional determinate term (or to use the language of the Practice Direction [2002] 1 WLR 2870 paragraph IV.47 “the relevant part” which consists of the period of detention imposed for punishment and deterrence). We do not accept the judge's notional determinate term was manifestly excessive or that insufficient credit was given for the pleas. We adopt the same approach as the judge. For the assault with intent to rob the notional determinate term remains at 12 months and for the robbery it is increased to 3½ years. We shall explain later why it is necessary to increase the term. As we explain in more detail below, the provisions of section 82A(3)(c) of the Powers of Criminal Courts (Sentencing) Act 2000 lead us to the next stage, which is to adjust the notional determinate term in order to reflect the comparison with s 244(1) of the 2003 Act. This is followed by the requirement under s 82A(3)(b) of the 2000 Act to take account of the effect of any direction which would have been given under s 240 of the 2003 Act (crediting periods of remand in custody). Our conclusion is that in this appellant's case the minimum term for the assault with intent remains at 6 months and the minimum term for the robbery becomes 21 months, minus the 128 days on remand.

We have halved the notional determinate sentence in accordance with the authorities (see Szczerba [200] EWCA Crim 440; [2002] 2 Cr App R(S) 387, at 395 and Archbold, 2006, paragraph 5-312) and taking account of section 244 of the Criminal Justice Act 2003 (which incidentally alters the regime which applied, by virtue of section 33 of the Criminal Justice Act 1991, to long term prisoners) and of section 82A of the Powers of Criminal Courts (Sentencing) Act 2000.

Section 244 reads:

“(1)

As soon as a fixed-term prisoner, other than a prisoner to whom section 247 applies, has served the requisite custodial period, it is the duty of the Secretary of State to release him on licence under this section.

(2)

…

(3)

In this section “the requisite custodial period” means—

(a)

in relation to a person serving a sentence of imprisonment for a term of twelve months or more or any determinate sentence of detention under section 91 [or 96] of the Sentencing Act, one-half of his sentence,

…”

Section 82 A of the Powers of Criminal Courts (Sentencing) Act 2000, as amended makes provision for the setting of the minimum term for sentences of IPP and for life sentences (other than for murder). It provides:

“(2)

The court shall, unless it makes an order under subsection (4) below, order that the provisions of section 28(5) to (8) of the Crime (Sentences) Act 1997 (referred to in this section as the “early release provisions”) shall apply to the offender as soon as he has served the part of his sentence which is specified in the order.

(3)

The part of his sentence shall be such as the court considers appropriate taking into account—

(a)

the seriousness of the offence, or of the combination of the offence and one or more offences associated with it;

(b)

the effect of any direction which it would have given under section 240 of the Criminal Justice Act 2003 (crediting periods of remand in custody) if it had sentenced him to a term of imprisonment; and

(c)

the early release provisions as compared with section 244(1) of the Criminal Justice Act 2003.”

By virtue of section 28 (1B) and section 34 (2)(d) of the Crime (Sentences) Act 1997 (as amended), O’Brien may only require the Secretary of State under section 28(7) to refer his case to the Parole Board after he has served the 21 months minus the 128 days. Given the minimum term of 21 months for the offence of robbery, he may not require the Secretary of State under section 28(7) to refer his case to the Parole Board after he has served only 6 months. The substituted sentences do not increase the length of time which O’Brien will spend in prison and thus do not offend section 11(3) of the Criminal Appeal Act 1968.

We turn to the case of Llewellyn (now aged 24). On 14^th September 2005 in the Crown Court at Bolton the appellant pleaded guilty to one count of robbery. On 7^th October 2005 he was sentenced by HHJ. Warnock to IPP with a minimum term of 2 years and 3 months. On 20^th October 2005 and on review of the sentence, HHJ Warnock the Learned Judge reviewed the sentence and reduced the minimum term by 24 days to take the time spent in custody on remand into account. The judge ordered that the revised minimum term would be 2 years and 68 days in custody. Having committed an offence before the expiry of a full term of an earlier sentence of imprisonment, he was ordered to return to custody to serve the remaining period of 300 days pursuant to section 116 Powers of Criminal Courts (Sentencing) Act 2000, to be served before the sentence for the instant offences. The total sentence was therefore: a sentence of imprisonment for public protection pursuant to section 225 Criminal Justice Act 2003 with a minimum term of 2 years and 68 days, consecutive to 300 days.

Shepherd, the co-accused, pleaded guilty to one count of robbery and was sentenced to 42 months detention in a young offender institution. It was directed that the 113 days spent in custody on remand would count towards that sentence pursuant to section 240 of the Criminal Justice Act 2003.

Llewellyn appeals against his sentence by certificate of the sentencing Judge in the following terms:

“Should a sentence for Public Protection under the Criminal Justice Act 2003 be treated as a ‘life’ sentence such that it is unlawful to activate an unserved period of imprisonment, such to be served before the commencement of the ‘minimum period’ set by the Court?”

He further applies for leave to appeal against sentence on a further ground that the learned judge erred in concluding that the appellant represented a significant risk of serious harm to the public. We granted leave on that ground during the hearing.

On 11^th June 2005 Mr Ryder was at home with a friend. The friend went out to take the dog for a walk and five minutes later Mr Ryder took some rubbish to the adjacent rubbish chute, leaving his front door open as he did so. Upon re-entering his property the appellant and his co-accused were present within. The co-accused was unplugging his Playstation in his living room. The co-accused sprung up and lunged towards him; holding a silver handled carving knife with a six inch blade. Mr Ryder recognised this knife as one of his own from his kitchen. The co-accused held the knife to Mr Ryder’s throat and said ‘Don’t do anything stupid’. He put the knife down on a nearby speaker and continued to steal Mr Ryder’s property. The appellant appeared from behind the living room door and kept an eye on Mr Ryder while the co-accused continued to steal various items (a Playstation, ten games and two control handles.) Both men then left carrying the property. Importantly the respondent does not dispute that the appellant was not a “party” to the obtaining from the kitchen of the knife or its subsequent use.

Shepherd and the appellant were subsequently arrested and interviewed whereupon they chose to make no comment during the interview.

Llewellyn is 24 years old and has 9 convictions for 24 offences. The majority of offences are for dishonesty. He has convictions for 11 offences of robbery and 2 offences of attempted robbery. The first offence was an indecent assault on a male under the age of 14 for which he was sentenced to a 2 year supervision order. His first custodial sentence was for robberies committed in 1997 and for which he received 4 months detention in a young offenders institution. On 9^th August 2002 he was convicted on two indictments of 4 offences of robbery, 1 attempted robbery and 1 offence of theft for which he was sentenced to 3 years and 9 months’ imprisonment. For having committed an offence before the expiry of a full term of an earlier sentence of imprisonment, he was ordered to return to custody to serve the outstanding 399 days before commencing his sentence for those offences. His total sentence was 60 months’ imprisonment. He was released on 18/04/05 on licence until 12/09/05.

The PSR prepared in February 2002 stated:

“The three offences of robbery in May 1998 relate to three different individuals, on separate occasions. Two of them were particularly vulnerable given their age, 82 years and 64 years, having cash stolen after the appellant had gained entry to their homes on some pretext. Whilst all victims were threatened, the first offence also involved the presence of a knife and the latter, physical violence.”

According to the PSR prepared for sentencing for the index offence, the appellant’s use of substances, willingness to commit high harm offences against vulnerable people and threaten violence are contributory factors in assessing that he represents a high risk of harm to members of the general public as well as committing further offences of a specified violent nature. Until he can successfully refrain from substance misuse and address his tendency to resolve issues in a violent manner, the risks he poses will remain high. There was a high likelihood that he was at high risk of further acquisitive and harmful offences. His ongoing drug use, propensity to commit serious offences and his entrenched pattern of offending were causes for concern.

In passing sentence the judge said that he had pleaded guilty to an exceptionally serious robbery in somebody’s home. He was party to the use of a weapon because he was disturbed in the course of a burglary. He had the most appalling record relating to violence and dishonesty. The Learned Judge had no hesitation in concluding that he represented a significant risk of serious harm. This conclusion was reached because of the statutory assumption, his record and the facts of the offence. Full credit was given for his guilty plea.

In the grounds of appeal it is submitted that the judge erred in concluding that the appellant represented a significant risk of serious harm to the public and, therefore, in imposing a sentence of IPP; and in ordering such a sentence (if otherwise appropriate) to run consecutively to a period of recall under section 116 of the 2000 Act.

At the conclusion of the hearing we announced that the appeal was allowed to the extent that we quashed the sentence of IPP and substituted for it a sentence of 4 and a half years imprisonment to be served consecutively to the period of 300 days which the judge ordered to be served under section 116 of the 2000 Act. It was conceded, following an enquiry by the Registrar, that the appellant was not entitled to a reduction for days spent on remand and that the period of 300 days was the appropriate period.

Not without some difficulty because of the way that the PNC record was prepared and presented, we conducted an examination of the appellant’s antecedents in an attempt to understand the circumstances of the previous robberies or attempted robberies. They were largely street robberies some accompanied by the threat of a weapon which, so it seems, he did not actually have. Two involved entry into a house when the appellant grabbed the occupants (82 years old in one case and 64 in the other) and on one occasion the victim suffered cuts and bruises to his right hand.

It was conceded by Mr Robinson that section 229(3) applied. We therefore had to ask ourselves whether it would be unreasonable to conclude, after taking into account the matters set out in the section and Lang and others particularly paragraph 17 (iii) and (v) (Lang post dated the sentence in this case), that there is a significant risk to members of the public of serious personal injury (whether physical or psychological) occasioned by the commission by the appellant of further specified offences. The difficulty we face is that the judge wrongly (as the respondent concedes), said that the appellant was a party to the use of a weapon because he was disturbed in the course of a burglary. If he had been a party to the use of a weapon, the sentence of IPP would have been unappealable. Since he was not, we have decided that, in all the circumstances, it would be unreasonable to draw the conclusion.

We turn finally to Moss, now aged 40. On 28^th October 2005 at the Crown Court at Bournemouth the appellant pleaded guilty to 2 counts of robbery. On 19^th January 2006 he was sentenced by HHJ.Wiggs on each count to IPP with a minimum term of 6 years minus the 83 days spent in custody on remand, to be served concurrently to each other. Having committed an offence before the expiry of a full term of an earlier sentence of imprisonment for robbery offences, he was ordered to return to custody to serve 180 of the remaining period of 252 days pursuant to s.116 Powers of Criminal Courts (Sentencing) Act 2000, to be served before the sentence for the instant offences. Thus the total sentence was: a sentence of IPP pursuant to section 225 of the Criminal Justice Act 2003 with a minimum term of 5 years and 282 days, consecutive to 180 days pursuant to section 116 of the Powers of Criminal Courts (Sentencing) Act 2000.

The lawfulness of making the sentence of IPP consecutive to the section 116 order was referred to the Full Court by the Registrar.

Moss is a crack cocaine addict and commits offences to fund the habit.

The facts of the first robbery were as follows. At around 2am on 12^th August 2005 Mr Houari, a taxi driver, took the appellant to Hamilton road. Upon arrival the appellant asked Mr Houari to give him some money. When Mr Houari refused the request, the appellant produced a steak knife and demanded ten pounds Mr Houari gave him the money and the appellant left. The following day Mr Houari provided the police with CCTV stills of the inside of his taxi. On 17^th August 2005 the appellant was arrested for unconnected matters and while in custody was arrested for the above offence. Upon arrest he was wearing the clothing described by Mr Houari.

We turn to the other robbery. On 13^th August 2005 Ms Daste was in a telephone box when the appellant opened the door and told her that he needed all her money. He shouted at her aggressively and she gave him a £2 coin. He then reached around her and took the rest of her money from her back pocket. After he had taken the money, he told her that she could use the telephone and left. On 19^th August 2005 Ms Daste identified the appellant in a video identification parade. On 9^th September the appellant admitted the offence in interview.

The appellant had six previous convictions for eleven offences. His first offence was for rape in 1985 for which he was sentenced to four years youth custody. He was sentenced to 2 years imprisonment for robbery in 1999 and to four years imprisonment for robbery in 2002.

The writer of the PSR understood that the Court requested an investigation into dangerous offender provisions. In the writer’s opinion the appellant did not fit into the category. The aiding and abetting rape was committed some considerable time ago and there had been no further convictions of this nature. With regard to the offences of robbery, the appellant had been in possession of a weapon but had not used it. The risk of further offending by the appellant was directly related to his crack cocaine addiction.

There were a number of reports before the court the effect of which was that the most significant factor which would lead to him committing further offences was his addiction to drugs though he recognised that and was attempting to conquer his addiction.

In passing sentence the judge gave the appellant credit for his guilty pleas. The appellant had a number of previous convictions of relevance to the offences for which he was being sentenced: in 1985 he was sentenced to 4 years youth custody for a very serious offence of rape, in 1999 he was sentenced to 2 years imprisonment for a robbery of a mini-cab driver with a knife and in 2002 he was sentenced to 4 years’ imprisonment for three robberies including one street robbery, one of a taxi driver with a knife and one of a woman with a knife. The judge relied on the case of Lang in deciding whether it was unreasonable to come to the view that there was no significant risk to members of the public of serious harm occasioned by the commission by the appellant of further such offences. The judge disagreed with counsel’s submission that there was no evidence of serious harm in the appellant’s offending. The robbery of a taxi driver at knife-point in the small hours of the morning which left him frightened to go to work was properly called “serious harm”. The judge agreed with counsel’s submission that if the appellant could keep away from drugs, there was no significant risk to the public. He concluded that there was a significant risk of relapse in the appellant's case and it was not therefore unreasonable to conclude that he was dangerous. A sentence of imprisonment for public protection had to be passed. With a record of offences of this kind, if these matters had been uncontested, the judge would have imposed concurrent sentences upon each count of 9 years imprisonment. Giving credit for his guilty plea, that would be reduced to 6 years. The judge then deducted the 83 days served in custody awaiting sentence from the 6 years, and ordered that in the event of the calculation of 83 days being wrong such period as he was found to have served in custody pending the sentence should be deducted from the sentence and regarded as already having been served. The appellant was liable to serve 252 days from his previous sentence he had been administratively re-called but this had to be ignored. The judge ordered that the appellant serve 180 days of that sentence before beginning the sentence for the present offences.

HHJ Wiggs has sent a note to the Full Court (in response to the Registrar’s request for an accurate record sheet) in which he states that he had intended the minimum term to be 3 years minus the time spent on remand. The judge had overlooked the need to halve the period (see paragraph 25 and following above).

There is no challenge to the imposition of the sentence of IPP. As to the notional determinate term it is submitted that the starting point of 9 years (from which the judge deducted 3 years to reflect the plea) was manifestly excessive and that the judge erred in principle in taking into account the appellant’s previous convictions when setting the notional term. We disagree with the latter proposition. In deciding the period to be imposed for punishment and deterrence, the court is quite entitled to take into account previous serious convictions. We are concerned about the starting point of 9 years. We were referred to Jackson [1995] 1 Cr App R (S) 259. The appellant, much younger than Moss, pleaded guilty to robbery. At a time when he was on licence from prison following a conviction for robbery, he called for a taxi and having directed the driver to stop, he pressed a metal object into the back of the driver’s neck, said he had a gun and demanded money. He was sentenced to 6 years imprisonment following a plea. The previous offence of robbery involved a threat with a knife to a young person at a bus station. The Court decided that the proper sentence was one of 4½years imprisonment. Not without some reluctance, we have reached the conclusion that the notional determinate sentence should have been one of 5 years. For reasons which we shall give below, the correct way of reflecting the 180 days is not to require the 180 days to be served before the sentence of IPP but to add the 180 days to the 5 years, making a total of 5½ years or 66 months. This will be halved to 33 months from which will be deducted the 83 days spent on remand. The minimum term is therefore 33 months less 83 days.

We were taken through the statutory provisions relevant to indeterminate sentences and it is agreed that there is no provision which forbids the imposition of consecutive indeterminate sentences or the imposition of an indeterminate sentence consecutive to another period of imprisonment. The situation has not changed since the decision in Jones [1962] Cr.App.R.129. Ashworth J giving the judgment of the Court of Criminal Appeal said: (pages 148-149)

"There remains the question of sentence. The learned judge in passing sentence said:

'You have been found guilty now of two crimes, evil to a degree beyond all adjectives, and it is proper that you should serve your sentence for the first crime and that neither as a matter of fact nor of appearance should it cease to be operative. In these circumstances, I pass upon you the sentence according to statute that you can be sentenced to imprisonment for life and for the protection of the public I think firstly that it should be a sentence to commence upon the expiration of your existing sentence and secondly that it would be lamentable indeed if upon the second sentence you did not serve a far longer time than upon the first.'

It was contended before us that the form of the sentence was wrong in principle in that it amounted to a "sentence of life imprisonment less the unremitted portion of the sentence of fourteen years." Further, it was contended that the learned judge was in error in supposing that if the sentence of life imprisonment were made to take effect at once, the sentence of fourteen years would merge with it and for practical purposes cease to operate.

We were assisted on this point by the Attorney-General as amicus curiae, and he assured us that the two sentences would not merge, if the life sentence were made concurrent, and that the sentence of fourteen years would not be affected in any way. According to him, there was no practical difference whatever between a life sentence made concurrent and one made consecutive, but he submitted the view that it is undesirable to make the life sentence consecutive since it achieves no practical result.

We have no doubt that the learned judge had power to make the life sentence consecutive to the earlier sentence of fourteen years, but we accept the Attorney-General's submission that a consecutive sentence is undesirable. Since the practical result would be the same in any event, we see no reason to allow the appeal against sentence, and it is dismissed.

We would only add that our attention was called to several unreported judgment of this court in regard to life sentences. It is, in our view, difficult to reconcile all the observations contained in those judgments, but on the present occasion there is no need to attempt the task."

We share the view expressed in that case that it is undesirable to impose consecutive indeterminate sentences or order an indeterminate sentence to be served consecutively to another period of imprisonment. Common sense suggests that a sentence of life imprisonment or of IPP starts immediately on its imposition. Given the difficulties that may be encountered already in determining when a prisoner must be released or is eligible for parole, it seems to us to be much easier not to compound those difficulties by making indeterminate sentences consecutive to other sentences or periods in custody.

We are supported in our conclusion by a passage in Lang and others where the Vice President said (in paragraph 20) that it “will not usually be appropriate to impose consecutive extended sentences”. (See also S [2005] EWCA Crim 3616, paragraph 30.)

We shall consider first the following situation: but for the undesirability of making indeterminate sentences consecutive to other terms, the judge would want the period before which the defendant will become eligible for parole to be consecutive to an existing sentence or to follow a period imposed under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 (return to prison where offence committed during original sentence). How does the judge ensure that the sentence includes the balance of the existing sentence or the section 116 period?

The judge should increase the notional determinate term to reflect that balance or that period. The authority for so doing is Haywood [2000] 2 Cr App R (S) 418. The appellant had been sentenced to 8 years’ imprisonment for robbery etc and two days after being sentenced he attacked a prison officer. He pleaded guilty to wounding with intent (section 18). The Recorder of Liverpool sentenced him to life imprisonment, as he was obliged to do and specified:

“the part to be served by reference to the period the appellant would have had to serve if the Recorder had imposed seven years' imprisonment consecutive, as he would have done but for section 2 [automatic life sentence].”

The Recorder started with a term of 15 years and halved it and then (wrongly as the Court of Appeal said) reduced that period by the time spent in custody on remand (the appellant had never been in custody anyway for the robbery).

In the words of Lord Bingham CJ (pages 432-433):

“In our judgment the Recorder took a logical and obviously sensible step ... This result is in no way unjust to the appellant who on any showing deserves a measure of punishment for this serious offence, and who clearly presents a continuing risk of danger to the public. We consider that the course which the Recorder adopted promotes the public policy underlying the Act and it furthermore avoided the obvious anomaly which would have arisen had the submissions of counsel been accepted.”

If the Recorder had set the notional determinate term to reflect only the section 18 offence, then, in Lord Bingham’s words, “virtually nothing” would have been added to the sentence which the appellant was already serving, a result which Lord Bingham described as obviously absurd” (page 422). The principle in Haywood was cited with approval by the Vice President in Szczerba [2002] EWCA Crim 440, paragraph 33; [2002] 2 Cr App R(S) 86, at page 387. The statutory provision in Haywood equivalent to what is now section 82 A of the Powers of Criminal Courts (Sentencing) Act 2000 (pargraph 31 above) was section 28 of the Crime (Sentences) Act 1997. Given that the two provisions are very similar, the principles laid down in Haywood would also apply to section 82 A.

In Szczerba the Vice President said (pargraph 33):

"There are, however, circumstances in which more than half may well be appropriate. Dr Thomas identified two examples. In Hayward [2000] 2 Cr.App.R. (S.) 418 a life sentence was imposed on a serving prisoner for an offence committed in prison. In such a case the term specified can appropriately be fixed to end at a date after that on which the defendant would have been eligible for release on licence from his original sentence. This may involve identifying a proportion of the notional determinate term up to two-thirds. Another example is where a life sentence is imposed on a defendant for an offence committed during licensed release from an earlier sentence, who is therefore susceptible to return to custody under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000. In such a case the specified period could properly be increased above one-half, to reflect the fact that a specified period cannot be ordered to run consecutively to any other sentence."

On our reading of Haywood the Recorder achieved the desired objective by increasing the notional determinate term and not by dividing that term by (up to) two thirds rather than by a half to reach the minimum term. We think that increasing the notional determinate sentence is the better way. Indeed, for cases to which section 244 of the Criminal Justice Act 2003 applies (see above paragraph 29) the notional determinate sentence should be divided by half to arrive at the specified minimum term.

In our view any section 116 period should be treated in the same way, that is by adding it to the notional determinate term which the judge would otherwise have set. As we understand it, a section 116 period attracts the early release provisions. A defendant sentenced to three years imprisonment to be served following a one year section 116 period will be released after two years. By adding the period to the notional determinate term and then halving it, the prisoner is in the same position as he would have been if the judge had passed a determinate term of the same length as the notional determinate term and made it consecutive to the section 116 period.

There is one more practical problem which we should address. Assume that a judge is imposing concurrent indeterminate sentences for two or more offences with corresponding concurrent minimum terms. Assume that, if he had not passed indeterminate sentences he would have passed determinate custodial sentences for those offences consecutive to each other. How does he reflect in the notional determinate term the totality of the offending? The answer is, we believe, either to choose the same notional determinate term for all of the offences or take the most serious and make the notional determinate term reflect the totality of the offending. We return to the O’Brien case. The notional determinate term for the robbery should reflect the need to punish both the assault with intent to rob and the robbery. That is why we increased the notional determinate sentence for the robbery in his case. This is in accordance with section 82 A(3)(a) of the Powers of Criminal Courts (Sentencing) Act 2000 (set out in paragraph 31 above).

Finally we wish to say something about appeals. Given our view that it is not unlawful but merely undesirable to make consecutive indeterminate sentences or to make them consecutive to some other term or period of imprisonment, permission to appeal should not normally be granted on this ground only. Our reason for saying this is that if an appeal succeeds on this point only, then it is unlikely that the length of time which the prisoner will have to serve before being eligible for parole will be altered. In such circumstances there would be no practical point in giving permission to appeal.