Burinskas, R v, Court of Appeal - Criminal Division, March 04, 2014,  EWCA Crim 334
|Issuing Organization:||Criminal Division|
|Actores:||Burinskas, R v|
|Resolution Date:||March 04, 2014|
Case Nos: 2013/02323/A2, 2013/02443/A4, 2013/02383/A7,
2013/03426/A5, 2013/03003/A2, 2013/02750/A5,
Neutral Citation Number:  EWCA Crim 334
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE MITTING
MRS JUSTICE THIRLWALL DBE
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AND IN APPEALS FROM THE CROWN COURT
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Miss S Whitehouse for the Appellant
M Kirk for the Respondent (Burinskas)
B Hargreaves for the Appellant (Phillips)
M Roberts for the Appellant (Ahmad)
D Claxton for the Appellant (Hanson)
Miss J Smart for the Appellant (Donegan)
Miss S Cutter for the Appellant (Smith)
H Rees for the Appellant (Mathews)
D Sapiecha for the Appellant (Coleman)
A Edis QC for the Respondent
Hearing date : 20 November 2013
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JudgmentLord Thomas of Cwmgiedd, CJ :
Note: REPORTING RESTRICTIONS
The provisions of the Sexual Offences (Amendment) Act 1992 apply to offences in all of these cases save the fourth case, Hanson. No matter relating to a person against whom a sexual offence has been committed may be reported if it is likely to lead members of the public to identify the person as a victim of the offence.
This is the judgment of the court to which we have all contributed.
The eight cases before the court give rise to a consideration of the effect upon sentencing of amendments to the dangerous offender provisions in Chapter 5, Part 12 of the Criminal Justice Act 2003 (CJA 2003) made by the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO). In six cases life sentences were passed. In the other two extended sentences were passed.
There are seven applications for permission to appeal against sentence which were referred to the Full Court by the Registrar. There is also an application by HM Attorney General under s.36 of the Criminal Justice Act 1988. Save when dealing with the detail of the Attorney General's application (Burinskas) we shall refer to all those whose sentences we are considering as appellants. They are all over 21. We grant leave to the Attorney General and have substituted a life sentence. Although we have only quashed the life sentence in two of the appeals and substituted extended sentences for public protection, we grant leave in all cases.
I: THE GENERAL APPROACH
The legislative background
(i) The position before the CJA 2003
In the years prior to the Criminal Justice Act 2003, there were three kinds of indeterminate sentence:
i) The mandatory life sentence for murder.
ii) The automatic life sentence under the Crime (Sentences) Act, re-enacted as s.109 in the consolidation in the Powers of Criminal Courts (Sentencing) Act 2000.
iii) The discretionary life sentence.
At paragraph 20 below, we set out the considerations this court said should be taken into account when considering passing a discretionary life sentence.
The dangerous offender provisions of the CJA 2003 enacted, in addition to a sentence of life imprisonment, a new form of indeterminate sentence - the sentence of imprisonment for public protection (IPP). The conditions for the imposition of a sentence of IPP were modified in 2008. As we explain at paragraphs 13-14, this court set out the considerations that a court should take into account when deciding whether to pass a sentence of IPP or a life sentence.
The sentences available after the changes made by LASPO
In 2012, s.123 of LASPO abolished the sentence of IPP (and the equivalent for juveniles (Detention for Public Protection)) and established a new sentencing framework. Before turning to examine the provisions in detail, it is helpful to outline the new provisions.
i) Under s.224A, after conviction for a second listed offence, the judge must pass a life sentence, unless the particular circumstances make it unjust.
ii) Under s.225, a sentence of life imprisonment must be passed if the offender commits a serious offence, is dangerous and the seriousness of the offence is such as to justify the imposition of a life sentence.
iii) LASPO also introduced a new form of extended sentence and significant changes to the early release provisions for extended sentences.
We are solely concerned in this judgment with life sentences passed under s.224A and s.225 of the CJA 2003 (as amended by LASPO) and extended sentences. We do not deal with:
i) Mandatory life sentences which are governed by a different statutory regime recently considered by this court in McLoughlin and Newell  EWCA Crim 188.
ii) Discretionary life sentences passed other than under s.224A or s.225 of the CJA 2003. In R v Saunders  EWCA Crim 1027, Lord Judge CJ expressed the view of the court that discretionary life sentences could still be passed other than under s.224A and s.225 of the CJA 2003 (see paragraph 11). Some commentators have questioned that view in the light of the provisions of s.153 of the CJA 2003. We would simply observe that this questioning runs contrary to the Guideline of the Sentencing Guidelines Council at page 24, paragraph 1 (b) of the Sexual Offences Guideline,
``Life imprisonment is the maximum for the offence [of rape]. Such a sentence may be imposed either as a result of the offence itself where a number of aggravating factors are present, or because the offender meets the dangerousness criterion''
Since there is no case before us upon which this issue arises, even tangentially, there is nothing to be gained from considering the question further, still less endeavouring to come to conclusions in the absence of a specific case.
The sentence under s.224A: life imprisonment for a second listed offence
Section 224A was inserted by s.122 of LASPO. It introduces a new and separate route for a court to consider which might result in a life sentence. It provides in (1) -(4):
``(1) This section applies where-
(a) a person aged 18 or over is convicted of an offence listed in Part 1 of Schedule 15B,
(b) the offence was committed after 3rd December 2012, and
(c) the sentence condition and the previous offence condition are met.
(2) The court must impose a sentence of life imprisonment unless the court is of the opinion that there are particular circumstances which-
(a) relate to the offence, to the previous offence referred to in subsection (4) or to the offender, and
(b) would make it unjust to do so in all the circumstances.
(3) The sentence condition is that, but for this section, the court would, in compliance with sections 152(2) and 153(2) impose a sentence of imprisonment for 10 years or more, [or, if the person is aged at least 18 but under 21, a sentence of detention in a young offender institution for such a period disregarding any extension period imposed under section 226A].
(4) The previous offence condition is that-
(a) at the time the offence was committed, the offender had been convicted of an offence listed in Schedule 15B (``the previous offence''), and
(b) a relevant life sentence of a relevant sentence of imprisonment or detention for a determinate period was imposed on the offender for the previous offence''.
We do not need to refer to the other subsections. Schedule 15B is inserted by operation of Schedule 18 to LASPO.
It may be helpful to make three observations about this section, though none of the cases before us directly raise its application:
i) For a life sentence to be imposed under s.224A there is no requirement of a finding that the offender is dangerous within the meaning of the CJA 2003, although it is likely that in most such cases he will be. It follows that the fact that an offender is not dangerous is not something that of itself would make it unjust to pass a life sentence under this section.
ii) S.225(2)(b) does not apply to the relevant offence in s.224A. There is no requirement to consider whether the ``seriousness'' threshold has been passed.
iii) S.224A could lead in cases that may be rare to the imposition of a life sentence in respect of an offence which does not carry life as a maximum.
The sentence under s.225: life imprisonment for serious offences
(i) The terms of s.225
S.225 of the CJA 2003 applies where a person is convicted of a serious offence after 3 December 2012 and 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. S.224 of the CJA defines a specified offence and a serious offence:
i) An offence is a serious offence within the meaning of Chapter 5 if it is a specified offence and is punishable by imprisonment for life (s.224 (2)).
ii) A specified offence means a specified violent offence as set out in Part 1 of Schedule 15 to the CJA or a specified sexual offence as set out in Part 2 of Schedule 15. Serious harm means death or serious personal injury, whether physical or psychological (s.224 (3)).
If s.225 applies on the basis to which we have referred in the preceding paragraph, then s.225(2) provides that if
``(a) the offence is one where the offender would be liable for imprisonment for life and
(b) the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life,
the court must impose a sentence of imprisonment for life or in the case of a person aged at least 18 but under 21, sentence of custody for life.''
Where the sentencing judge is satisfied in the exercise of his judgment that an offender is dangerous and that the two conditions at s.225(2)(a) and (b) are met, there is no discretion. He must pass a life sentence.
Section 226 sets out the position for an offender under 18.
(ii) The meaning of the condition set out in s.225(2)(b)
The critical issue is the interpretation of the condition in s.225(2)(b). In several of these appeals the advocates submit that life...
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