Wilkinson & Ors, R v

The appeals of Wilkinson, Ali and others, and Olawaiye and others, involve gun crime, and the development of the guidelines in R v Avis and others [1998] 2 CAR (S) 128. Bennett is a Reference by the Attorney General involving a very grave sexual crime which, together with Wilkinson, requires the distinction between sentences of imprisonment for life and imprisonment for public protection in section 225 of the Criminal Justice Act 2003 (the 2003 Act) to be addressed.

The gravity of gun crime cannot be exaggerated. Guns kill and maim, terrorise and intimidate. That is why criminals want them: that is why they use them: and that is why they organise their importation and manufacture, supply and distribution. Sentencing courts must address the fact that too many lethal weapons are too readily available: too many are carried: too many are used, always with devastating effect on individual victims and with insidious corrosive impact on the wellbeing of the local community.

The purposes of sentencing are identified in section 142 of the 2003 Act. None of these purposes is pre-eminent. All apply to every case, but as a matter of sentencing reality, whenever a gun is made available for use as well as when a gun is used public protection is the paramount consideration. Deterrent and punitive sentences are required and should be imposed.

Avis and others was decided in December 1997. Lord Bingham CJ offered guidance to sentencers about the levels of sentence which would be appropriate for a variety of offences taking account of the ambit of the Firearms Act 1968, as amended by the wide-ranging, then recent statutory provisions of the Criminal Justice and Public Order Act 1994. The structure of the judgment is familiar. In effect sentencing decisions arrived at before the 1994 Act came into force were confined to oblivion. It was suggested that by addressing a series of questions the sentencing court would provide itself with appropriate indications of the true extent of the defendant’s culpability. For convenience we shall repeat them.

“(1)

What sort of weapon is involved? Genuine firearms are more dangerous than imitation firearms. Loaded firearms are more dangerous then unloaded firearms. Unloaded firearms for which ammunition is available are more dangerous than firearms for which no ammunition is available. Possession of a firearm which has no lawful use (such as a sawn-off shotgun) will be viewed even more seriously than possession of a firearm which is capable of lawful use.

(2)

What (if any) use has been made of the firearm? It is necessary for the court, as with any other offence, to take account of all circumstances surrounding any use made of the firearm: the more prolonged and premeditated and violent the use, the more serious the offence is likely to be.

(3)

With what intention (if any) did the defendant possess or use the firearm? Generally speaking, the most serious offences under the Act are those which require proof of a specific criminal intent (to endanger life, to cause fear of violence, to resist arrest, to commit an indictable offence). The more serious the act intended, the more serious the offence.

(4)

What is the defendant’s record? The seriousness of any firearm offence is inevitably increased if the offender has an established record of committing firearms offences or crimes of violence.”

The value of this series of questions for use by the judiciary in the Crown Court is undiminished. That said, the broad guidance requires further amplification both in the light of subsequent legislation and also because the criminality considered in Avis and others did not address the level of criminality, taking the form of large scale importation and/or manufacture, sale and distribution of guns involved in two of the present appeals.

In relation to legislation, two developments need specific attention. First, section 51(A) of the Firearms Act 1968, as inserted by section 287 of the Criminal Justice Act 2003, provides for minimum sentences for a variety of firearms offences committed after 22 January 2004. It provides:

“This section applies where –

(a)

An individual is convicted of

(i)

An offence under s5(1)(a), (ab) (aba), (ac), (ad), (ae), (af) or (c) of the Act or

(ii)

An offence under section 5(1A)(a) of this Act and

(b)

The offence was committed after the commencement of this section and at a time when he was aged 16 or over.

The specified minimum terms are 5 years’ imprisonment where the offender was 18 years or over at the date of conviction and, in accordance with section 289 of the Criminal Justice Act 2003, 3 years’ detention under section 91(A) of the Powers of Criminal Courts (Sentencing) Act 2000 for an offender aged at least 16 but under 18 years.

These provisions do not arise directly for consideration in this judgment, and it would therefore be inappropriate to examine the circumstances which it may be appropriate to regard as exceptional for the purposes of imposing a shorter sentence than the prescribed minimum, save to emphasise that they must indeed be exceptional. It is nevertheless necessary to focus attention on the importance of these provisions and their intended impact for sentencing in cases involving gun crime even at a lower level of seriousness than those which arise in the present case. They confirm, if confirmation were needed, that possession of a firearm, without more, and without any aggravating features beyond the fact of such possession, is of itself a grave crime, and should be dealt with accordingly.

The second legislative development arises from Section 225 of the 2003 Act (as amended by the Criminal Justice and Immigration Act 2008) which applies where:

“(1)(a) A person aged 18 or over is convicted of a serious offence committed after the commencement of the section and

(b)

The court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.

The terms of section 225 direct attention to two further statutory provisions. Section 143 of the 2003 Act requires the court determining the seriousness of an offence to:

“(1)…consider the offender’s culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused.

(2)…the court must treat each previous conviction as an aggravating factor if (in the case of that conviction) the court considers that it can reasonably be so treated having regard, in particular, to

(a)

the nature of the offence to which the conviction relates and its relevance to the current offence, and

(b)

the time that has elapsed since the conviction.

…”

The second further statutory provision arises from section 305 of the 2003 Act which explains the meaning of “associated” in section 225(2)(b) by reference to section 161 of the Powers of Criminal Courts (Sentencing) Act 2000. This provides:

“(1)

For the purposes of this Act an offence is associated with another if –

(a)

the offender is convicted of it in the proceedings in which he is convicted of the other offence, or (although convicted of it in earlier proceedings) is sentenced for it at the same time as he is sentenced for that offence: or

(b)

the offender admits the commission of it in the proceedings in which he is sentenced for the other offence and requests the court to take it into consideration in sentencing him for that offence.”

The relevant provisions of the 2003 Act were brought in to force on 4 April 2005.

The impact of these provisions on the guidance to be offered to sentencing courts in the context of gun crime requires specific attention because of an observation in Avis and others that “an indeterminate sentence should however be imposed only where the established criteria for imposing such a sentence are met”. The indeterminate sentence to which Lord Bingham was then referring was the discretionary sentence of life imprisonment where, following conviction, it was an available sentencing option. Since 4 April 2005 the effect of s 225 of the 2003 Act is that two indeterminate sentences, not one, imprisonment for life, and imprisonment for public protection (IPP) are available. The criteria had been expounded in a series of decided cases, and the principles were well established. Prior to the implementation of the 2003 Act, the first requirement for a discretionary life sentence was that the offence was sufficiently grave for a very long sentence to be justified. (see, for example, R v Hodgson, 52 CAR 113). Although there appeared to be a suggestion that the discretionary life sentence could be imposed for an offence which did not necessarily justify a long sentence if the offender represented a long term danger, R v Chapman [2000] 1 CAR 77 confirmed that the sentence should be reserved for cases where the offence itself was particularly grave. The second condition was the belief that the offender himself might constitute a serious danger to the public for an indefinite period. In relation to the question of future dangerousness the general, but not universal approach was that the mere fact that a grave offence had been committed would not of itself normally satisfy this condition. Usually, but again not universally, medical evidence to this effect was required. Although clearly reflective of principles identified in the decisions of this court, nowadays the criteria for the imposition of discretionary life imprisonment are statutory.

After 4 April 2005, where two pre-conditions, one of fact – the offender’s age – and one of law – the availability of imprisonment for life following conviction of a specified offence within the meaning of section 224 of the 2003 Act – are established, the court is required to make a judgment whether the conditions specified in section 225(1)(b) and 2(b) – the predictive risk and the seriousness of the offence – are established. As the court explained in the Reference by the Attorney General and others [2008] EWCA Crim 2790:

“The court must consider whether the seriousness of the offence, or the offence and one or more associated offences, justifies the sentence. If it does, however much judicial discretion (or more accurately, judgment) has been introduced into the assessment of dangerousness by the removal of the statutory assumption, or in relation to the imposition of imprisonment for public protection or an extended sentence, a sentence for imprisonment for life “must” be imposed if conditions in section 225(1) and (2) are established.”

Reference was made to R v Kehoe [2008] EWCA Crim 819 as indicative of the relevant considerations, an observation which we have been invited to re-assess.

Dealing with it very generally, IPP was an entirely new form of sentence created by the 2003 Act. IPP may be imposed following conviction for any specified offence which would otherwise carry a maximum sentence of 10 years’ imprisonment. Therefore one of its distinguishing features is that it permits a defendant’s incarceration to extend beyond what would otherwise be the lawful maximum for the offence. However the availability of this sentence is also subject to restrictive conditions which do not apply to discretionary life imprisonment. These include a requirement that the list of the offender’s previous convictions should include one of the offences listed in schedule 15A or ignoring section 240 of the 2003 Act, that the minimum term should be assessed at two years’ imprisonment or longer. (section 225(3A) and section 225(3B)). And, ultimately, the sentence is a discretionary sentence, which “may” not “must” be imposed.

For all that, it is well understood that an IPP has a great deal in common with a life sentence. “Its justification is the protection of the public. It is indeterminate. Release depends on the judgment of the Parole Board as to the risk which the prisoner presents. The court must fix a minimum term before which release cannot be considered, calculated by reference to the hypothetical determinate term which would have been called for if the indeterminate sentence were not being passed. All those features it shares with a discretionary life sentence”. (R v Pedley, Martin and Hammody…. Both sentences therefore address future dangerousness and public protection from the predictive danger posed by the offender.

Once passed, at least two express differences between the sentences are identified in the legislation. First, in relation to a discretionary life sentence, but not an IPP, the court has jurisdiction to make a whole life order directing that the early release provisions shall not apply to the offender, and, second, although the offender will not be released from a discretionary life sentence or IPP unless the Parole Board considers it safe for him to be released, in the case of an IPP, but not a discretionary life sentence, the Parole Board may give a further direction that supervision under licence shall come to an end 10 years after release. That said, the Parole Board would not dispense with the post release licence conditions unless satisfied that they were no longer necessary. Neither of these differences is trivial, but by their very nature they tend to suggest that assuming that both are available, the crucial difference between a discretionary sentence of life imprisonment and IPP arising at the time of sentence should reflect the seriousness of the instant offence as assessed in the overall statutory context. This is consistent with the regime which applied to a discretionary life sentence before the implementation of the 2003 Act and is confirmed by the legislative provisions which provide two, not one, indeterminate sentences.

The approach of this court can be readily illustrated. R v Stephens [2007] EWCA Crim 3021 indicated that a life sentence would only be appropriate if the case was one of the very limited number in which a discretionary life sentence would have been imposed before the enactment of the 2003 Act, and indicated that the most convenient expression of the pre-2003 Act test was to be found in R v Chapman. R v Kehoe made clear that where the offender was “dangerous” there was no longer any need to protect the public by imposing life imprisonment, because an IPP fulfilled that function and the discretionary life sentence should be preserved for those cases where the culpability of the offender was particularly high or where the consequent offence was particularly grave. R v Wood [2009] EWCA Crim 651 focussed on the assessment of the seriousness of the offence. We must express some reservations whether cases like Laxmidas [2008] EWCA Crim 2669, where the specified minimum term was 4 years 6 months, should normally attract a discretionary life sentence rather than an IPP. In Kehoe the notional determinate sentence would have been in the region of 6 years. An IPP was therefore unsurprising. On the other hand, in Wood the minimum term was fixed at 13 years, a notional determinate sentence of 26 years. That was reflective of the seriousness of the case. No further citation of authority is necessary.

These decisions, like virtually every sentencing decision, were fact specific. Nevertheless they give an indication of the approach of the court to legislative provisions which provide two forms of indeterminate sentence to deal with the dangerous offender. In our judgment it is clear that as a matter of principle the discretionary life sentence under section 225 should continue to be reserved for offences of the utmost gravity. Without being prescriptive, we suggest that the sentence should come into contemplation when the judgment of the court is that the seriousness is such that the life sentence would have what Lord Bingham observed in Lichniak [2003] 1 AC 903, would be a “denunciatory” value, reflective of public abhorrence of the offence, and where, because of its seriousness, the notional determinate sentence would be very long, measured in very many years. The application of this principle will be seen in the appeal of Wilkinson and the reference by HM Attorney General in Bennett.

We must now return to the absence of guidance in Avis about the approach to be adopted to cases of major seriousness, involving either the importation or the distribution and supply of firearms on a wide basis. One of the sentences in Avis involved Gerald Thomas. In due course he pleaded guilty to two counts of possessing a firearm with intent to enable another person by means thereof to endanger life, as well as six counts of selling or transferring firearms unlawfully, and two counts of selling or transferring ammunition unlawfully. The total sentence was 9 years’ imprisonment.

Thomas was a permitted firearms holder and dealer. He sold three revolvers and ammunition to an undercover police officer, and indicated that he could supply firearms regularly and easily. There was a further meeting with the undercover officer in which Thomas sold him two pump action, shortened shotguns as well as three pistols and ammunition for all five weapons. Thomas was 66 years old, without previous convictions, and a man with immense public support for his efforts for charity. It was emphasised on his behalf that he had not “gone to underworld suppliers” to obtain the weapons, and that he had shortened the two pump action shotguns himself. The court concluded that 9 years’ imprisonment, after a guilty plea, fully reflected the mitigation and that the sentence could not “sensibly” have been further reduced. In other words it was as low as it could have been.

In Attorney General’s Reference Nos 58-66 of 2002 [2003] EWCA Crim 636, the sentences on a number of young offenders were regarded as unduly lenient and significantly increased. They were members of a gang of major drug dealers who carried loaded firearms, “ostensibly” for their own protection. The firearms were described as an “integral part of the drug-supply network”, carried not only for the protection of the gang, but to enforce their territorial claims. The decision demonstrated that “in a contested case simple possession of a firearm together with ammunition with intent to endanger life merits a sentence of between 7 and 8 years’ imprisonment”. That, we emphasise, applied to “simple possession” with the necessary intent. Given the complications arising from the fact that the Reference extended to the sentences for conspiracy to supply class A and class B drugs, and that there were other offences of which the different offenders were convicted, this decision does not provide any more direct guidance.

More important is R v Saltmarsh and others [2007] EWCA Crim 876, which arose from application for leave to appeal against sentence following conviction in the Crown Court at Manchester. Saltmarsh was convicted of conspiracy to possess firearms with intent to enable another person or persons unknown to endanger life. He was still a young man, who had not previously served a sentence of imprisonment. He was sentenced to 20 years’ imprisonment. A co-conspirator, who also appealed against sentence, was sentenced to 14 years imprisonment. Three other defendants were sentenced, respectively, to 18 years’ imprisonment, 13 years’ imprisonment, and 11 years’ imprisonment on conviction of the same conspiracy, and a conspiracy to contravene section 170 of the Customs and Excise Management Act 1979. For practical purposes their conviction of an additional count made no difference to the level of sentencing. They did not appeal. This conspiracy involved the importation of 30 9mm self-loading pistols and 1220 rounds of live ammunition from Lithuania. They were designed for blank firing and would normally have had choked barrels. The barrels were cut off and replaced with steel tubes. Silencers were fabricated to fit the steel tubes. The magazines were adapted to fire live ammunition. The handguns were imported into the United Kingdom from Belgium. The particular feature of the case was the impact which this importation would have had on gun crime in Greater Manchester if it had been successful. Saltmarsh was at the head of the conspiracy, who while keeping himself “distant from the importation and subsequent distribution of the firearms” was its controlling mind. His application for leave to appeal was dismissed as unarguable: similarly, with the sentence on the second applicant, who was an essential link in the conspiracy but whose role was rather less important.

We must pause briefly to comment that, first, Saltmarsh was a case heard at Manchester Crown Court, and that when the judge came to consider Ali and others in particular, which was a case heard in the same court, he rightly attached importance to the earlier decision of his judicial colleague, and that, second, in Saltmarsh the issue of an indeterminate sentence did not apparently arise for consideration. Dealing with it broadly, Saltmarsh underlines that the guidance offered in Avis and others did not cover cases involving gun crime at the level of seriousness demonstrated in Saltmarsh itself, and indeed in others of the present cases to which we must now turn.

The final strand for analysis arises from the statutory sentencing provisions which apply to the importation and supply of prohibited goods. Mr Nicholas Clarke QC helpfully identified two sentencing anomalies which relate to firearms. First, whereas for the importation of class A drugs a discretionary life sentence is available, and indeed for the importation of class B and class C drugs, the maximum available sentence is 14 years imprisonment, the maximum sentence for importing firearms (including handguns and machine guns with ammunition suitable for use) is 10 years imprisonment. This is consequent on section 170 of the Customs and Excise Management Act 1979. Second, in relation to firearms, there is no equivalent statutory offence to the offence which applies to the possession of drugs with intent to supply. Section 3 of the Firearms Act 1968, which creates the offence of dealing in firearms by anyone who is not registered as a firearms dealer is designed to deal with the apparently legitimate firearms dealer who is trading without the relevant registration rather than enterprises involving the illegal supply of firearms between criminals. It also addresses the sale or transfer of any firearm or ammunition to someone who does not produce a firearms certificate (section 3 (2) of the 1968 Act). In any event, these offences attract a maximum penalty of 5 years imprisonment (section 51 and schedule 6 of the 1968 Act) which in circumstances like the present would be wholly inadequate. The result is that where the prosecution discovers evidence of criminal activity involving the importation or manufacture or distribution of firearms and ammunition on a large scale, the defendants are indicted with offences contrary to section 16 of the 1968 Act, that is, possession of firearms and ammunition with intent to endanger life. Although this offence does attract the maximum penalty of life imprisonment, and it is a specified violent offence for the purposes of sections 224 and 225 of the 2003 Act, the prosecution must prove the specific intent to endanger life or to enable another to endanger life: otherwise a defendant involved in the importation of firearms cannot be liable to discretionary life imprisonment.

We respectfully suggest that the offence of importing firearms, or being in possession of firearms with intent to supply them, whether manufactured by someone else or not, is not less criminally reprehensible than the importation of drugs or possession of drugs with intent to supply them. It is indeed difficult to anticipate many such cases where an imminent risk to life is not an inevitable concomitant of the offence. If so, the availability of a discretionary life sentence should not be dependant on proof of the specific intent required by section 16 of the Firearms Act.

Where however the statutory intent involving danger to life has been established, and it is clear that the firearms were subsequently used with homicidal intent by others to whom they were supplied or who obtained them in the criminal firearms market, the sentences on the importer or supplier should always reflect these dreadful consequences. In the context of section 225 of the 2003 Act the fact that the importer or supplier is not an individual who pulled any trigger, or discharged any firearm, or caused serious injury himself, does not resolve the issue of future dangerousness in his favour. Criminals who are prepared to deal in such lethal weapons invariably represent a serious public danger, and it cannot be assumed that the danger they represent will have dissipated when the determinate element of their sentences has been completed. We therefore supplement the guidance in Avis and others by emphasising that for criminals involved in this level of gun crime along with very lengthy determinate sentences, indeterminate sentences, whether discretionary imprisonment for life or IPP, inevitably arise for consideration. We shall apply this guidance to the present appeals.

Grant Wilkinson was born in 1974. He has many previous convictions, some for dishonesty, some connected with the misuse of drugs, and some for violence. In 1996 he was convicted of causing grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861 and sentenced to 4 years’ imprisonment. In 2004 he was convicted of affray and a community penalty was imposed.

Following a less than comprehensive examination by a consultant educational and child psychologist his intelligence quotient score was assessed at 67. That evidence was called at trial: so too was contradictory evidence from Professor Thomas-Peter, of the Reaside Clinic and School of Psychology at the University of Birmingham. This evidence was critical of the earlier examination and rejected the assessment. Professor Thomas-Peter concluded that on balance Wilkinson was less than enthusiastic about his efforts at psychometric examination. His day to day functioning was not significantly different from normal.

That is the background to the present application for leave to appeal against a discretionary sentence of life imprisonment with a specified minimum period of 11 years imposed at Reading Crown Court by Her Honour Judge Smith on 28 August 2002 following Wilkinson’s trial and conviction by a jury. In view of the issues which arise in these cases, leave to appeal was granted.

The convictions and sentence were as follows: Conspiracy to convert imitation firearms into firearms, 7 years’ imprisonment: conspiracy to sell or transfer firearms, 5 years’ imprisonment: conspiracy to sell or transfer ammunition, 5 years’ imprisonment: two counts of possession of a firearm with intent to enable another person by means thereof to endanger life, life imprisonment: and two counts of possession of ammunition with intent to endanger life, life imprisonment.

The judge concluded that the offences for which life imprisonment was an available sentence were of sufficient seriousness to justify imprisonment for life. She indicated that if a determinate sentence had been appropriate it would have been 22 years’ imprisonment. The remaining sentences were each ordered to run consecutively to each other, totalling 17 years in all, but concurrent to the minimum specified term of 11 years. An appropriate order was made under section 240 of the Criminal Justice Act 2003 in relation to days spent in custody.

The convictions arose out of large-scale conversion and sale of Mach 10 sub-machine guns. These, together with appropriate ammunition, were found during the course of a Thames Valley Police investigation into large scale supplying of prohibited firearms and ammunition. They discovered what was described as the largest “arms factory” for the manufacture and distribution of these weapons within the United Kingdom. It was a feature of the case, that a steady increase in the use of Mach 10 sub-machine guns that had taken place since 2004 was almost exclusively attributable to the replicas which were converted at the appellant’s premises.

In July 2004, using a false name, the appellant placed an order with a reputable company for 90 Mach 10 blank firing replica sub-machine guns together with 25 shot magazines. When making the purchase, the appellant represented the guns were for use in a new James Bond film. Arrangements were made for him to collect the guns in batches of 10. The total value of the order was £55,201.50. The defendant collected the guns on each occasion and made payments in cash.

From there the guns were taken to the gun factory which was operated from outbuildings at a residential property in Reading. The main house was let out to tenants by the defendant, although he did not himself own the property. The Crown’s case was that these transactions had been arranged to disguise the nature of the activities which were taking place in the outbuildings. Wilkinson then oversaw arrangements for the conversion of derelict sheds in a paddock attached to the property. One into a workshop and the other into a soundproof test firing room. The workshop was the size of a double garage. The appellant purchased a large number of precision tools, including lathes, drills, a centrifugal machine, grinders, a milling machine and other tools. The entire workshop outbuilding was reinforced and soundproofed and an alarm was fitted at the entrance. The test firing room was about the size of a single garage. A secure steel container was placed within it. Both walls and the steel container itself were soundproofed. A large plank of wood was later found within the container. Bullets had been fired into it. Approximately 2695 discharged cartridges were also found together with 3 Mach 10 type machine guns, one of which had been converted into a fully functioning firearm, together with 10 other replica hand guns, 63 gun barrels, 4 revolver cylinders, 1.8kg of smokeless powder, 1100 bullets and primers, with packaging for over 1500 as well. It was established that all the necessary equipment was present and available to enable the adaptation and conversion of replica firearms into working firearms, and the firearms had been test fired in the test firing shed.

Following his arrest, in December 2007, the appellant voluntarily led the police to an address in Buckinghamshire which was searched. 40 large plastic barrels were found buried in a field. These contained further firearms and a substantial quantity of ammunition including 8 Mach 10 sub-machine guns, 2 other replica handguns, 14 gun barrels, 9400 bullets, 700 live rounds, 22800 spent cartridges, 3500 new cartridge cases and 47 blank cartridges.

At the date of sentence it was proved that 51 shootings had involved these converted replica Mach 10s, resulting in 8 fatal shootings, and 13 instances of injury to the person. All but 5 of the 51 incidents occurred in the Greater London area, 4 occurred in Birmingham, and one in Manchester. Of the 90 replicas bought by the appellant, 53 had been recovered. The balance was still unaccounted for and presumably continue to be available for use.

The defence case at trial was rejected by the jury. It was suggested in mitigation that Wilkinson was not the organiser or key person within the conspiracy, not someone “in the boardroom” but more a manual worker acting as a caretaker. It was also suggested that appellant was far removed from those who used the weapons and that there was no connection between them. He had offered assistance to the police with the recovery of a substantial quantity of guns and ammunition.

In her sentencing observations the judge, having carefully recited the facts, explained that the appellant had been engaged in serious organised crime involving firearms for a period of years, and that, taking all the evidence into account, she was satisfied that there was a significant risk that the appellant would commit further specified offences resulting in serious public harm in the future. She concluded that the offences for which a life sentence was available were of such seriousness as to justify the sentence. She could find no mitigation in relation to the counts where the maximum sentence was imposed, although when fixing the specified minimum term in relation to the sentences of life imprisonment, she gave the appellant credit for his co-operation and assistance to the police after his arrest.

The essential arguments in support of the appeal are that the judge failed to take sufficient account of Wilkinson’s role within the conspiracy and that, given the mitigation, a sentence of life imprisonment was excessive. The problem with the first argument is that it fails sufficiently to address the nature of the Crown’s case. The Crown was content to accept throughout the trial that others were involved with Wilkinson. However the Crown challenged the suggestion that he was a mere subsidiary participant in the conspiracy, and ignorant of a number of essential matters. At the end of the trial the judge was entitled to conclude that Wilkinson’s activity was essential to the outcome of the conspiracy, and that the issue of his intellectual capacity had to be addressed not only in the context of Professor Peter-Thomas’ conclusion, but in the light of the appellant’s activities in furtherance of the conspiracy. As already noted, she took account and gave credit to the appellant for the fact that after arrest he did reveal the hiding place of some additional dangerous material. There was no other mitigation.

In our judgment the judge was not merely entitled, but fully justified in treating this offence as one of the utmost gravity. This was no exaggeration. Putting it simply, the weapons produced in this factory caused deaths and injuries. As we have already explained those involved in the manufacture of these guns, including the appellant himself, simply cannot wash their hands of the consequences and the sentence on him should reflect those consequences. The appeal will be dismissed.

Whereas Wilkinson was concerned with the manufacture of firearms, by converting replicas into lethal weapons, and providing ammunition for them, these four appellants were connected with the importation of dangerous weapons into this country. In colloquial language they were “gun runners”.

The appellants were involved in obtaining and distributing Russian Baikal 8mm self-loading pistols, sound moderators and 9mm ammunition throughout the North of England. Each played his part in arranging for the weapons to be acquired and sold on to different criminals. Each weapon seized in the course of the police operation came from the same source. Each was converted by the same method. The guns were stripped down, re-barrelled to take 9mm ammunition and the identification was obliterated. Each weapon exhibited a similar hand-stamp Roman Numeral designed to match up the separate component parts. Each was coated in an oil-based substance designed to hamper any forensic tests. The sound moderators were manufactured with a high degree of precision and all followed the same blue print. A high level of skill was employed throughout the modification process. The ammunition was predominantly of two types, originating in South Africa and Brazil. It is extremely rare, and so far as was known, had not been imported into this country since 1997.

A total of 56 weapons attributable to this conspiracy have been seized by the police, but without doubt, this reflects only a proportion of the number of weapons which were successfully distributed as a result of the conspiracy. The operation was co-ordinated by Madassar Ali. He gave instructions to Kaleem Akhtar, who in turn was responsible for instructing Asaid Salim. Ali communicated directly with a man known as Malcevas, who was responsible for bringing the weapons from the South of England to Manchester. Once the weapons were received in Manchester, Akhtar and Salim were involved with coordinating their onward distribution. Salim was responsible for re-packaging the weapons, breaking down the bulk deliveries into separate units, each of which comprised a pistol, magazine, sound moderator, and appropriate ammunition. Wilson, who is from Liverpool rather than Manchester, purchased some of the weapons from Akhtar and thereafter arranged for their onward distribution.

The weapons were described by the prosecution as an assassins’ armoury. That description was subjected to some criticism in this court, but in our judgment it was wholly justified. The weapons were clearly designed for use to endanger life. The presence of the silencers, more properly described as sound moderators, and the quantity of the ammunition amply justified that conclusion. The conspiracy involved the largest connected network of illegally held weapons, and the second largest single seizure of firearms, ever achieved in Greater Manchester. If the objective of the conspiracy had been fully achieved, the impact on gun crime in Greater Manchester, already deeply alarming as evidenced in Saltmarsh, would have been grave indeed.

In the end, Ali, Wilson and Salim pleaded guilty to conspiracy to possess firearms and ammunition with intent to enable another to endanger life, and Akhtar was convicted of the same offence after a trial before His Honour Judge Goldstone QC and a jury.

On 1 August 2008 they were sentenced by Judge Goldstone as follows: Akhtar, lacking the mitigation of a guilty plea, was sentenced to 20 years’ imprisonment, Ali to 18 years, Wilson to 11 ½ years, and Salim to 10 years 8 months’ imprisonment. Two other accused Agnius Malcevas and Edgaras Malcevas were sentenced to 12 years and 5 years’ imprisonment respectively. Neither of them sought leave to appeal against sentence. The applications of the remaining defendants leave to appeal against sentence were referred to the full court by the Registrar. In view of the broad nature of the issues raised by this particular case in the overall context of gun crime, as with Wilkinson, leave to appeal was granted.

The operation of this conspiracy can be illustrated by brief reference to a number of significant events. On 2 February 2007 a man called Michael Peake travelled from Liverpool to Manchester. He there met Akhtar, and they spent some time together. Peake then returned to Liverpool. On his journey he was intercepted by the police. Inside his vehicle they found two plastic bags each of which contained a Baikal semi-automatic pistol, a sound moderator, and 15 South African PMP brand 9 mm bulleted cartridges. Akhtar’s fingerprints were found on the handle of one of the bags which contained a weapons kit. Wilson’s fingerprints were found on the other carrier bag. Agnius Malcevas had brought the weapons to Manchester at Ali’s behest.

In the meantime, once Peake had driven away from Manchester a serious of telephone calls took place between Akhtar and Wilson. During the same period Akhtar was in close contact with Ali. Indeed it was possible to establish a pattern of contact between Akhtar, Ali, Wilson, and Salim, as well as Peake, which demonstrated that they were all involved in the eventual delivery of firearms to Peake. It was also established that Peake and Wilson were involved in an earlier attempt to supply a Baikal pistol, silencer and ammunition to criminals in Scotland.

On 2 April 2007 the police recovered 341 bulleted cartridges and a modified Baikal magazine from an address which was linked to Ali and Akhtar. Telephone records demonstrated Salim’s involvement with these weapons.

On 4 May 2007 Agnius Malcevas brought a further consignment of Baikal pistols, sound moderators and ammunition to Manchester at Ali’s request. Salim packaged the weapons for onward distribution. Telephone records showed that Akhtar was coordinating Salim’s activities on behalf of Ali. In the early hours of 5 May 2007 Salim was arrested. He was in possession of 13 pistols and sound moderators and 379 bulleted cartridges. When he was arrested, the police also recovered some drugs. The alarming feature of the case is that within hours of the successful interception and seizure of these pistols and cartridges, the conspirators were able to replace them. On 5 May itself Agnius Malcevas, on Ali’s instructions, brought a further consignment of weapons to Manchester, to replace the items seized by the police. He brought yet another consignment to Manchester on 11 July 2007, and was arrested on 15 July in the company of his brother, while bringing a further consignment of weapons, consisting of 13 pistols, 12 sound moderators, and 121 bulleted cartridges to Manchester on Ali’s instructions.

Quite apart from the firearms seized from Peake in February 2007, and the firearms seized on 5 May and 15 July, the police recovered a further 27 identical weapons, together with appropriate sound moderators and ammunition in 21 separate seizures between January 2006 and October 2007. These seizures were made in Liverpool, Blackley, Sheffield, Leeds, Manchester, Bradford, Liverpool and Prestwich. No less than 56 pistol, ready for use, together with just over 8000 bulleted cartridges for use in the pistols were recovered during the course of this operation, all attributable to the conspiracy. Ballistic tests on the weapons demonstrated that they performed with the same degree of accuracy and reliability as a factory produced firearm. Accordingly, in summary, this conspiracy involved the introduction of large numbers of lethal weapons and ammunition into the criminal community. The weapons were sourced from the South of England and distributed throughout the North. The appellants were undeterred by police activity, including three separate seizures of weapons in February, April and July 2007, and after each seizure arrangements were made for yet further weapons to be conveyed to Manchester for onward distribution.

Akhtar was arrested in 2007. He made no comment in interview. Salim who was in custody after his arrest in early May was re-arrested in October 2007. In due course he gave a prepared statement which denied any involvement. In November 2007 and January 2008 respectively Ali and Wilson were arrested and interviewed. Each made no comment.

When passing sentence, Judge Goldstone considered the sentencing decision in Saltmarsh and others. He concluded that the facts of the present conspiracy were more serious because the conspiracy ran for longer, and the number of guns involved was substantially greater. In Saltmarsh he noted that no single gun ever entered circulation, that there was a single batch of weapons, and a single incident, whereas in the present conspiracy there was substantial distribution of weapons throughout the North of England and into Scotland, some of the guns distributed in the course of the conspiracy had been used, and the conspirators were far from undaunted by the earlier seizures and instead made arrangements to replace the guns seized by the police. He decided that the starting point for those involved in the highest level of the conspiracy should be 25 years’ imprisonment. He believed that the sentences should be deterrent sentences, directed at those who were minded to involve themselves in the supply of deadly weapons where the only purpose of such supply is to arm those prepared to carry and if necessary use them.

Ali is 31 years old. He has no relevant previous convictions. He pleaded guilty shortly before the trial. His plea was entered on the basis that he was the co-ordinating link between the suppliers from the South of England and the distribution network in Manchester. Although he accepted that he was at a senior level in the conspiracy he maintained that he acted on the instructions of someone else to whom he was a trusted lieutenant. The judge was prepared to accept that Ali was not the main beneficiary of the conspiracy, but believed that he was at its heart. The pre-sentence report invited the court to consider a sentence of imprisonment for public protection or a discretionary life sentence. That approach, we suggest, is vindicated by the present judgment. The Judge took a starting point for Ali at 22 years, giving credit for the late plea and some belated remorse reducing the sentence to 18 years. We are told that the court drew back from imposing an indeterminate sentence on the basis that the length of the sentence to be imposed on Ali would be sufficient to reduce any danger he might impose on release. It seems more likely to us that Judge Goldstone was understandably seeking to pitch his level of sentence to provide consistency of approach with the sentences imposed in Saltmarsh.

It is suggested that he chose a starting point that was too high, and then gave insufficient credit to Ali for the guilty plea. It is argued that this was not a conspiracy to import firearms or to manufacture or convert the weapons. However that may be, we are unpersuaded. Ali’s role was to hire and fire conspirators, adapting the business as its needs required. He was close to the top of the conspiracy, and at the Manchester end, its manager. His role was pivotal. The weapons were lethal. They had only one purpose. This sentence was well within the appropriate range. There can be no justifiable complaint.

Akhtar is 31 years old, and like Ali, has no relevant previous convictions. Following the trial, the judge identified his role as close to but under the direct supervision of Ali. His role was to liaise and co-ordinate the onward transmission of guns with Salim. In the judge’s view he was drawn to the conspiracy out of greed and a misplaced desire for glory and reputation. It was submitted that the starting point of 25 years was too high for the notional head of the conspiracy, but we have rejected that submission. Although it is argued that Akhtar’s role was not as extensive as that of others, nevertheless he plainly played a prominent and important role in it, and lacking the benefit of any allowance for a guilty plea, his complaint at the sentence imposed on him is without merit.

Salim is 28 years old, with no relevant convictions. He was sentenced on the basis that he was not involved in the strategic planning of the conspiracy, but was rather a trusted employee playing a knowing and crucial role in the conspiracy. Akhtar was his line manager. The judge gave full credit to him for his guilty plea, taking a starting point of 16 years imprisonment.

The submission is that the starting point for Salim was too high, and failed sufficiently to distinguish between him and the other co-conspirators. We disagree. Salim’s function was essential to the conspiracy. It was his job to turn what were bulk deliveries to Manchester into the appropriate killing tool. He was fully aware of what was going on, and closely involved in the operation of the conspiracy. We are wholly unpersuaded that there is any legitimate complaint about his sentence.

Paul Wilson, unlike the other appellants, has a substantial criminal record. At 38 years old, he has 8 previous convictions including convictions for firearms and drug offences. In January 1999 he was sentenced to 10 years imprisonment for conspiracy to supply heroin, and was on licence following his release from custody when he became involved in this conspiracy. He was sentenced on the basis that he had recruited Peake to take a Baikal handgun together with a silencer and ammunition to Scotland, and that he had liaised again with the other defendants to arrange for Peake to collect weapons to be distributed from Manchester to Liverpool.

The judge took a starting point of 16 years’ imprisonment, allowing credit for a late guilty plea. It is suggested that the starting point was too high, and that the credit for the guilty plea was insufficient. Those submissions are unhesitantly rejected. This appellant is a man steeped in very serious criminal conduct, and although his participation in this particular conspiracy was limited in the way in which he contended and the basis on which he was sentenced, neither the starting point taken by the judge nor the level of discount following the guilty plea, are open to realistic criticism.

Each of these appeals is dismissed.

We cannot leave this case without recording that if these appellants had fallen to be sentenced in the light of the present judgment, the judge would have been required seriously to consider whether each of these offenders was properly to be described as a dangerous criminal falling within the ambit of section 225 of the 2003 Act for whom an indeterminate sentence would have been appropriate.

The case arose from the activities of an organised criminal group which came to the attention of the police in 2004. The head of this group was Osman-Hersi. These offences occurred in January 2005, before sections 224-229 of the Criminal Justice Act 2003 came into force. In essence the Crown’s case was that on or before 3^rd January 2005, these appellants, together with a man called Osman-Hersi conspired together to possess two firearms, self-loading pistols, with intent to endanger life and together with a man called Gregory, who was subsequently acquitted by the jury, were involved in an arms deal involving these weapons which took place in Hackney. Osman-Hersi was later to plead guilty, and to provide evidence for the Crown in accordance with an agreement entered into under the Serious and Organised Crime and Police Act 2005. The sentence on him reflected the relevant principles and guidance provided by this court, and, notwithstanding that the sentence on him can properly be described as modest in the extreme, no disparity issue arises because these appellants did not, as he did, turn what is sometimes called Queen’s Evidence.

Olawaiye was born in 1984. He has previous convictions, although none of this seriousness. Farah was born in 1981. He has many previous convictions, including an offence of robbery for which he was sentenced to 5 years’ imprisonment. Ahmed was born in 1974. He, too, has previous convictions and has been sentenced to imprisonment.

In the early evening of 3 January 2005, three plain clothes police officers were on patrol in the London Fields area of Hackney. PS Christianson, PC Tracey Parker, and PC Chris Brodie were driving an unmarked police car when they came across a black male called Jamie Gregory, who appeared to be urinating against some railing. As this was a residential area, they decided to have a chat with him. Gregory had been standing next to a Porsche car parked on the pavement. PS Christianson examined the car. It was empty, but the lights on the dashboard were illuminated, the door was open, and keys were still in the ignition. As Parker and Brodie approached Gregory, he hitched up his trousers and began to walk towards them, and said that he had been “taking a piss”. However there were no signs that he had been urinating and the officers thought he was behaving in an extremely nervous and odd way. He was told that he would be searched. As a result two substantial bundles of cash were found in each of his trouser pockets. The total amount of cash was just under £1600. Gregory’s left wrist was then handcuffed, and Parker was responsible for his custody.

While this was going on Brodie became aware of movement in a Renault Megane car which was parked in front of the Porsche. He and Christianson approached the Megane, Brodie from the rear, Christianson from the front. One of them thought there were five people in it, but the other thought there were only four. Nothing turns on the difference, although much was made of it at trial. Christianson shouted “stay in the fucking car” and kicked the driver’s door shut. The driver was Farah. When the door shut, Brodie saw the rear passenger door open and an arm emerged holding a black handgun with a barrel pointed towards him, effectively at point blank range. Olawaiye was carrying the firearm. Christianson kicked the door, so that it slammed into the hand carrying the weapon. This caused Olawaiye to release the gun, which flew into the air, where Brodie caught it, and in the process the magazine, which was later found in the car, was ejected from the gun. The gun was examined. It was a Browning 9mm automatic pistol. The magazine was found to contain 15 unfired 9mm rounds suitable for use in the handguns. Ten of the cartridges were loaded with jacket hollow-point bullets and the remaining 5 cartridges were loaded with jacket round nose bullets. In other words, when Olawaiye pointed his gun at Brodie the weapon was loaded and ready to be fired.

Olawaiye made to escape from the back of the Megane, and although Christianson grabbed at his coat, he was unable to restrain him. Olawaiye rushed at Brodie, and struck him, and with his weight and momentum, Brodie was thrown backwards. Brodie tried to grab hold of him, but Olawaiye struggled free and run away, dropping a small rucksack on to the pavement. Farah too made his escape.

In the meantime Osman-Hersi got into the Porsche. He started to drive away and refused to stop. As he drove away Brodie’s leg was caught by the car as he jumped out of the way. The Porsche was driven in the direction of Farah who was then taken away from the scene.

At the scene the police further encountered and after a struggle eventually arrested Jama Ahmed. He had been sitting in the front passenger seat of the Porsche.

An investigation of the Megane revealed the butt of a second firearm, and a plastic bag containing a black BBM handgun, with an empty magazine inserted into the pistol grip. Another plastic bag containing 4 rounds of short live ammunition, together with various mobile phones and other items, were found in the central console. £3,000 was found in the Porsche motor car, together with mobile phones and plastic bags. Olawaiye’s DNA was identified on the cartridge magazine found in the back of the Megane, and Farah’s finger marks were found on two plastic bags.

The BBM gun had been originally manufactured to fire blank cartridges, but had been modified and was capable of firing a lethal projectile. The short live cartridges were suitable for use in the gun.

The different roles played by the appellants can be readily summarised. Ahmed was not in immediate possession of the weapons, but he had access to them, and it was he who had facilitated the meeting between them in Hackney. Osman-Hersi was the purchaser of the firearms, party to the deal, who brought Gregory with him to the scene. Farah was the driver of the vehicle and a participant in the transaction in contact with Ahmed and he helped to arrange the meeting. Olawaiye was the custodian of the one of the firearms, and responsible for pointing the loaded weapon at a uniformed police officer.

On 5 February 2007, following a change of plea, Ahmed pleaded guilty to one count of possession of a firearm with intent to endanger life and a further count of possession of ammunition with identical intent. On 1 November 2007 in the Crown Court at Kingston-upon-Thames, before His Honour Judge Fergus Mitchell and a jury, Farah and Olawaiye were convicted of conspiracy to possess firearms with intent to endanger life.

On 26 November 2007 Farah was sentenced to 18 years’ imprisonment Olawaiye to 18 years’ imprisonment, and Ahmed to 9 years’ imprisonment concurrent on each count. Appropriate orders were made under section 240 of the Criminal Justice Act 2003.

The judge expressed his concern at the entire transaction, and emphasised the seriousness of involvement in buying and selling firearms, at a time when their use had increased. As he said, “these guns were to be used and involved with serious crime. There would be no other point in having them.” All three appellants were involved, pivotal to what he described as a “business transaction”, a feature demonstrated, notwithstanding Gregory’s acquittal, by the cash found on him. He also took the view that he could rely on some of the evidence given at trial by Osman-Hersi, even though it was apparent that the jury had not been prepared to act on the evidence from Hersi which implicated Gregory in the offence.

In relation to Olawaiye he noted his relatively minor criminal record, but regarded his preparedness to use or threaten a police officer with the gun as a serious aggravating feature of the case. As to Farah, however he was described, he was a man in whom an enormous level of trust was reposed by those involved in the business transaction. As the judge put it, this was not a “casual arrangement”, it was an agreement to sell and buy firearms. In relation to Ahmed, his role was to link Hersi with the others. On the other hand he acknowledged the value of Ahmed’s guilty plea, which was indicated before any question of Osman-Hersi giving evidence arose. The judge did not distinguish between Farah and Olawaiye, but took a starting point of 14 years’ imprisonment in relation to Ahmed, but then reduced it to make generous allowance for the guilty plea.

The pre-sentence reports suggested that Olawaiye posed a high level risk to the public generally: Farah posed a similar high risk : so did Ahmed.

Perhaps the first issue to be addressed in relation to the appeals against sentence is the suggestion that the judge misunderstood or misused, or perhaps failed to attend sufficiently to the jury’s verdict in relation to Gregory, and that he was wrong to approach his sentencing decision on the basis that any weight whatever could be attached to Osman-Hersi’s evidence at trial. We disagree. Gregory’s acquittal no doubt represented the consequence of the directions to the jury, first, to give separate attention to his case, and second, not to convict him unless sure of his guilt. Orman-Hersi’s evidence had to be approached with sensible caution, and although the cash found on Gregory would have provided support for his evidence against Gregory, the actions and activities of the appellant who were involved in the Megane car, together with all the objects which they carried or which emerged from or were later found in that car, made for an even more powerful case against them than against Gregory. None of the specific observations made by the judge based on Orman-Hersi’s evidence is open to criticism. The facts spoke for themselves, and the trial judge was the person best able to assess their significance.

It is further complained that the sentence on Olawaiye reflected an aggravating feature which went beyond the conspiracy of which he was convicted. The Crown’s case against all the defendants was that they were engaged in a plot to supply two-hand guns with the necessary intent. Therefore any use of the firearm by Olawaiye as the police officer approached the car went beyond that conspiracy and was not subject to a separate count in the indictment. The short answer to this submission is that Olawaiye’s handling of a loaded firearm represented an aggravated manifestation of his proved intent to endanger life. It therefore fell to be considered in the sentencing decision.

In relation to Olawaiye generally, the essential submission was that the term of imprisonment was manifestly excessive. It ignored the personal mitigation that, at the time of the offences, he was still young, without relevant previous convictions. Too great a distinction was drawn between him and Ahmed. In any event if the guidance for offences of this kind was being reviewed upwards, Olawaiye should not be prejudiced by a change in the sentencing regime which came in to force after he committed the offences. In relation to Farah the significant complaint is that the sentence imposed on him should not have been equated with that imposed on Olawaiye, because the aggravating feature in Olawaiye’s case, namely the pointing of the loaded gun, was absent in Farah’s case. For Ahmed the broad submission is that the starting point was too high, and failed in any event to acknowledge that Ahmed had not been convicted of the more serious conspiracy offence, of which the others were convicted, and that insufficient credit had been given for what is described as the totality of the mitigation or the guilty pleas.

Our conclusions can be briefly expressed. No legitimate complaint can be made about a starting point of 14 years’ imprisonment for involvement in transactions involving the purchase and sale of two lethal firearms with ammunition suitable for use in them. Notwithstanding his relative youth when the offence was committed, in Olawaiye’s case, the use of such a weapon to threaten a police officer amply justified a sentence in excess of the starting point. There was no other mitigation. In the case of Farah there was, similarly, no mitigation, but the pointing of the firearm at the police officer was an aggravating feature of the case which did not apply to him. Although he was older than Olawaiye, and had significant previous convictions, we have concluded that the sentence on him should have been lower than that imposed on Olawaiye. Ahmed has no legitimate complaint. Like Farah, he was pivotal to this transaction, and he had a substantial criminal record. Sufficient allowance was made for his guilty plea.

In these circumstances the appeals of Olawaiye and Ahmed are dismissed. In Farah’s case the sentence of 18 years’ imprisonment will be quashed and a sentence of 14 years’ imprisonment substituted.

We must add this further observation. For the reasons already given, if these offences had been committed in, say, January 2006, the judge would have been required to consider whether indeterminate sentences were appropriate.

This is a Reference by Her Majesty’s Attorney General under section 36 of the Criminal Justice Act 1988 of a sentence imposed on Craig Joseph Bennett who, on 25 March 2009 in the Crown Court at Preston, was convicted by a jury of five offences of which the victim was the same 12 year old boy. The offences were kidnapping, committing that offence with intent to commit a sexual offence, rape by oral penetration, rape by anal penetration, and making threats to kill. On 2 April 2009 he was sentenced by Her Honour Judge Badley to imprisonment for public protection with a minimum specified period of 10 years, based on a notional determinate sentence of 20 years.

Bennett is a dangerous predatory paedophile. His convictions include offences of burglary and theft, but his record extends to convictions of direct relevance to the present case. In March 1990, when he attempted anal penetration of a 12 year old boy, he was convicted of indecent assault. In November 1991 he was convicted of indecent assault on an 11 year old boy when, having induced the child to go to some fields with him by offering him money and food, he attempted anal rape. In breach of the probation order imposed for that offence, on 3 March 1993 he was convicted of forcible oral rape and forcible buggery of a 13 year old boy. This offence occurred at an address in Darwen, known as Bailey’s Field. He was released on license. In April 2003 he was sentenced to 30 months’ imprisonment for taking away a child without lawful authority. This was another example of offering a child money to go with him. Fortunately for that child the police challenged the offender and he was arrested. An Anti-Social Behaviour Order was made for a 10 year period, suspended while he was in custody.

The present offences occurred when a 12 year old boy went up to Bailey’s Field with the offender to try and find his dog. In due course the victim was taken to the woods to continue the search. When the victim said he needed to get home, the offender grabbed and threatened him. He then forced the victim under a fence and lay down with him. At that stage he told the boy that he would be dead in 2 minutes if he bothered to run or to shout. This threat was made repeatedly. He also said that he had done 10 years for this offence and was not bothered by the police, thus adding to the boy’s fears.

Threatened with death, the boy opened his mouth and the offender penetrated him with his penis. He then took the victim’s belt and tied his hands behind his back with it. He took off his own belt and tied it round the boy’s neck. The boy was ordered to lie on his side. Forcible anal penetration then occurred more than once. The boy started to choke. He became unconscious. Thinking that he had killed him, the offender left the boy for dead. In interview the victim said, “if it would have been an extra 10 seconds of him doing that, I would have ended up dead”. That was not an exaggeration. The boy’s neck was bruised, and when he was examined later, petechial haemorrhages indicative of non-fatal strangulation were found. The doctor described this attack as an attempted strangulation with a ligature.

When the offender then left the victim, he was still tied up. He was eventually able, with difficulty, to get up and attract some assistance.

Unsurprisingly the boy was traumatised. Initially he refused to be examined medically, but eventually he consented. It is clear that he is still very traumatised. He feels a profound sense of guilt because of the effect that his ordeal has had on his family life. He blames himself for what happened. His family believes that he suffered some sort of change of personality.

The offender made no comment in interview. He did not give evidence at trial. He declined to co-operate with the preparation of a pre-sentence report. The most recent report available to the court was a psychiatric report dated October 1991, which was linked to the first sexual offence summarised at paragraph … This report indicated that, notwithstanding the offender’s guilty plea, he showed no remorse for his crime, which was said to be “highly typical of sex offenders”.

The aggravating features of this case are all too obvious. The court was concerned with the abduction and violent rape of a young boy who was deliberately targeted because he was young and vulnerable. Quite apart from the sexual violence perpetrated on him, he was subjected to potentially lethal violence in the form of strangulation. Unsurprisingly the ordeal has had a serious psychological effect on him. The offender committed this offence in a place which he had used previously for a virtually identical crime. His previous record demonstrated not merely a total failure to respond to previous sentences, but that he was a merciless offender, whose serious sexual crimes were escalating in seriousness. On this occasion the boy’s survival was a matter of good fortune.

The judge identified the fact that the offender desisted from the strangulation of the boy as a mitigating feature. Although it was to be noted, the fact that the offender did not kill his victim did not provide mitigation for the offences he did commit, and was, in any event, no more than good fortune. The case did not even attract a discount for a guilty plea.

The judge was of the clear opinion that the offender represented a significant risk to the public of causing serious personal injury. She addressed the question whether to impose a sentence of imprisonment for life or imprisonment for public protection. Having considered the decision of this court in Kehoe, she concluded that the offences were not sufficiently serious to justify a sentence of life imprisonment. The sentence she imposed was designed to ensure that the offender was not released into the community while he continued to present a significant risk of harm. No complaint is made about the period to be served by the offender before the Parole Board could begin to consider the question of his possible release. Further ancillary orders consistent with proper approach to the sentencing of sexual offenders were made, but for present purposes these are not relevant. The single issue in the present Reference is whether the imposition of an IPP was unduly lenient.

The facts of these dreadful offences speak for themselves: So do the offender’s previous associated convictions for sexual crimes. Although the notional determinate sentence of 20 years’ imprisonment could, it is submitted on behalf of the Attorney General, have been somewhat longer, it is not contended that this element of the sentence should be increased. We agree. Nevertheless in our judgment the gravity of these offences, seen in the context of the associated offences to which the legislative structure directs attention, as well as the urgent need for public protection, justified an order of imprisonment for life.

As we have already explained, the feature common to IPP and a discretionary sentence of life imprisonment is their indeterminate nature. Until the Parole Board is satisfied that the offender has ceased to represent a danger to public safety, he will remain in custody, if necessary for the remainder of his natural life. Nevertheless two distinct sentences were created by the 2003 Act, and there is no doubt that it is the sentence of imprisonment for life, not the IPP, which is the ultimate penal sanction available to the court. It was suggested in argument that where the difference in practice between the two indeterminate sentences is proportionately of relative insignificance, it is not immediately apparent how the imposition of the lesser of the indeterminate sentences can realistically be described as an unduly lenient sentence for the purposes of section 36 of the Criminal Justice Act 1988. This is the question for decision.

Our attention was drawn to schedule 32 of the 2003 Act which amended section 36 of the 1988 Act so as to provide that references to the powers to increase sentence extended to any failure to impose “a sentence required by…any of sections 225-228 of the Criminal Justice Act 2003”. We simply note a potential problem with this provision is that under the 2003 Act both imprisonment for life and IPP were “required” sentences for the purposes of schedule 32, but that the Criminal Justice and Immigration Act 2008, which came in to force in July 2008, amended the provisions of section 225 of the 2003 Act to make an IPP a discretionary rather than a required sentence. As far as we can see no amendment to schedule 32 of the 2003 Act followed the coming in to force of the 2008 Act. However these considerations do not advance the argument.

In essence the submission on behalf of the Attorney General is that, by recognising the practical reality that although the element of leniency following the imposition of an IPP rather than a discretionary life sentence was not great, it was, for the purposes of the 1988 Act, as amended, the wrong and an unduly lenient sentence. An IPP was imposed when the correct sentence was imprisonment for life, and when, in accordance with the express language of section 225(2) it was in the context of the seriousness of the offence and associated offences fully justified, and if so justified, the mandatory sentence.

In many cases where the defendant’s dangerousness is established, there nevertheless will remain room for a sensible difference between sentencing judges whether a particular offence under consideration is or is not serious enough to require the imposition of a sentence of life imprisonment, or whether an IPP will suffice. As we have emphasised, the sentence of life imprisonment remains the ultimate sentence, to be reserved for the most serious and grave cases. Where a reasonable judgment is that the sentence arguably does not reach or does not quite reach that level of seriousness, an IPP would not be unduly lenient. Where however the case is plainly so serious that a sentence of life imprisonment is indeed required, then it is in our judgment unduly lenient for any lesser sentence (including an IPP) to be imposed. Given the delicacy and difficulty of making the necessary judgment, we accept that these cases will be exceptional. Nevertheless where the only realistic conclusion is that a discretionary sentence of life imprisonment should have been imposed, then this court will interfere even with an IPP and replace it with life imprisonment. Applying the statutory criteria to this individual case, that conclusion was inevitable. Accordingly we shall quash the IPP and replace it with an order of imprisonment for life.