No: 201203474 A8
Neutral Citation Number: [2012] EWCA Crim 2430
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL 

Wednesday, 24 October 2012
 
B e f o r e:

LORD JUSTICE PITCHFORD

MR JUSTICE HICKINBOTTOM 

HS HONOUR JUDGE BONEY QC
(Sitting as a Judge of the CACD)
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R E G I N A 

v 

MICHAEL JAMES MORLEY 

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Computer Aided Transcript of the Stenograph Notes of 
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Ms Rachael Oakdene appeared on behalf of the Appellant
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Judgment
1.	MR JUSTICE HICKINBOTTOM: The Appellant, Michael James Morley, was born on 15 July 1991, and so at the beginning of 2010 he was 18 years old. MISS W was then 16 years old. The Appellant regarded her as a casual sex partner, but not as a serious girlfriend. She became pregnant by him. He was angered by the pregnancy. 
2.	In the early hours of the morning of 16 January 2010, the Appellant was at a party, when Miss W telephoned him. She wanted to discuss the pregnancy. He arranged to meet her at a location in Anfield, described by the sentencing judge as "a dark, secluded street". A friend drove him there at about 4 o'clock in the morning.
3.	When they met, the Appellant assaulted Miss W with a heavy weapon. The weapon used was disposed of and has never been found; but, although the Appellant has always denied the fact, it was most probably a heavy torch taken from his friend's car. In any event, there is no doubt that he struck her a number of times to the head with a heavy blunt object with very considerable force. She fell to the ground, where he kicked and stamped on her head whilst she was unconscious. Miss W was at the time, as the Appellant well knew, pregnant with his child. 
4.	That assault left Miss W with multiple breaks of bones in her face and skull. Medically, they are described as fractures of the left frontal, left ethmoid and left maxillary bilateral sphenoid bones of her skull, and the left zygomatic and nasal bones in her face. She also had three dural bleeds between the brain and the skull, some bruising to the brain, a 10cm x 10cm area of skin loss at the back of her head, and other cuts and bruises which required in excess of 200 sutures. However, that simple medical description fails adequately to describe the full extent of this young woman's injuries. The photographs we have seen show how horrific they were. The Appellant left her for dead; and, after the event, he said that but for the associate who took him to the scene, he would have killed her. 
5.	Miss W spent a month in hospital, in her own words, "fighting for her life", a fight that was fortunately successful. She has suffered from long‑term scarring and psychological sequelae, but thankfully no more serious enduring physical effects. 
6.	Miss W was slow in identifying the Appellant as the offender – unsurprisingly, given that he threatened to kill her if she did so. She laid the blame, initially, at the door of a third party. The Appellant was only identified, and charged with causing grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861, as a result of the tenacity of the investigating police and the courage of Miss W herself, who, despite the threats, eventually identified him as the perpetrator. 
7.	The Appellant, however, denied the offence; but was convicted of it on 23 April 2012 in the Crown Court at Liverpool before His Honour Judge Boulton and a jury. On 18 May, Judge Boulton sentenced him to imprisonment for public protection pursuant to section 225 of the Criminal Justice Act 2003, with a minimum term to be served in custody of seven and a half years, less 293 days he had spent on remand. 
8.	With the leave of the single judge, the Appellant now appeals against that sentence.
9.	It will be helpful if we deal with a number of uncontroversial points before we consider the single substantive ground that Ms Oakdene relied upon on the Appellant's behalf. 
10.	First, we note the Appellant's previous convictions for violence. In October 2006, when he was 15 years old, he was convicted of assault occasioning actual bodily harm contrary to section 47 of the 1861 Act, for which he was sentenced to an action plan order. In May 2007, he was sentenced to an 18‑month supervision order for a section 20 wounding, following a contested trial. In June 2009, he was sentenced to an 8‑month detention and training order for another section 47 offence. Finally, in January 2012, he was sentenced to 90 days detention for a common assault on 19 June 2011. 
11.	Second, as we have described, the Appellant was sentenced to imprisonment for public protection. However, at the time of his conviction he was 20 years old. Imprisonment is not available for offenders aged 18 to 20 (section 89 of the Powers of Criminal Courts (Sentencing) Act 2000). In view of his age on conviction, the sentence should properly have been expressed as one of detention in a young offender institution for public protection. 
12.	On 25 May and 6 July 2012, Judge Boulton having retired, the matter was listed before another judge, who, on the second occasion, purported to vary the sentence to one of detention for public protection under section 225 under the power to vary a sentence given by section 155(4) of the Powers of Criminal Courts (Sentencing) Act 2000. However, that power to vary is restricted to the court constituted as it was when the sentence was imposed. The variation is consequently invalid, and the form of the sentence is still in terms of imprisonment rather than detention. Subject to the other issues in this appeal, we will make that correction.
13.	Third, the sentencing judge considered that the appropriate notional determinate sentence would have been 15 years, and Ms Oakdene does not suggest that he erred in doing so. We consider that concession well made in the light of the Sentencing Guidelines Council's Definitive Guideline for the offence, which suggests for an offence such as this, involving greater harm and higher culpability, a range of 9 to 16 years; and the aggravating factors of the location and timing of the offence, the vulnerability of the victim and the effect of the assault upon her, disposal of the evidence in the form of the heavy blunt instrument with which he beat Miss W, commission of the offence whilst under the influence of alcohol, and the steps that the Appellant took to dissuade Miss W from reporting the offence, which included the threat to kill her if she did so. 
14.	We consequently come to the issues in the appeal. 
15.	The relevant legal background is briefly as follows. An offence under section 18 of the 1861 Act is a “specified offence” listed in schedule 15A of the Criminal Justice Act 2003. Leaving aside cases where the offence is such that only a life sentence is appropriate - not this case - where such a specified offence is committed, by virtue of the provisions of Chapter 5 of the 2003 Act the court must consider whether there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences, i.e. whether he is dangerous in that sense. If it is of that opinion, it must consider how the public can most appropriately be protected from that risk; and, in particular, if a commensurate sentence is insufficient, which of two non‑commensurate sentences is necessary for the purpose of protecting members of the public from serious harm that might be occasioned by him in that way.
16.	Under an extended sentence (sections 227 and 228 of the 2003 Act), the offender is released at the halfway stage of his sentence as in a commensurate sentence, but the period of his licence is extended by, in the case of an offence of violence, up to 5 years. 
17.	However, if the court does not consider that an extended sentence adequately addresses the identified risk, then it may impose a sentence for public protection under sections 225 and 226. Such a sentence has a custodial part (of the term that would be spent in custody if the sentence were a determinate one), but the sentence is otherwise for an indeterminate period in the sense that the provisions of chapter 2 of part 2 of the Crime Sentences Act 1997, which apply to life sentences, also apply to sentences for public protection. Importantly, the offender is not released from custody unless and until the Parole Board is satisfied that it is no longer necessary for the protection of the public that he should be confined (section 28(6) of the 1997 Act). 
18.	A sentence of detention for public protection can only be imposed if the court considers that an extended sentence would not be adequate for the purpose of protecting the public from serious harm, as a result of other specified offences committed by the offender; and it can only impose an extended sentence if it is satisfied that a commensurate sentence would not be adequate for the same purpose. In short, the court must impose the least onerous sentence which appropriately addresses the identified risk. 
19.	In the Appellant's case, the judge found that he was dangerous within the meaning of the Act. Ms Oakdene concedes that that finding is unimpeachible, and rightly so. Given the brutality and other circumstances of this single offence, the judge was entitled to make that finding, the more so in the light of the Appellant's previous convictions and threats to kill Miss W if she were to disclose that he was the perpetrator. 
20.	However, the judge having correctly found that the Appellant posed the risk to the public identified in the statutory provisions, Ms Oakdene submitted that he did not consider an extended sentence, and, on the evidence before him, he could not properly have considered that a sentence of detention for public protection was necessary to protect the public from the risk posed. She submitted that an extended sentence would have been adequate in that respect. 
21.	The evidence Ms Oakdene relies upon for that submission is in the pre‑sentence report dated 16 May 2012, a day or so before the sentencing hearing. Whilst the Appellant confirmed to the author of that report that he had considered Miss W a "slag" - his term - with whom he had had only a casual sexual encounter. Although he accepts paternity, he "wishes to undertake a DNA test to be sure"; but he told the author of the report that "he now wishes to consider [Miss W] in the light of her being the mother of his child". He said that, in his previous period of being in custody in 2009, he had recognised the need to change and had tried to distance himself from his previous lifestyle, by moving from the Merseyside area and taking employment as an apprentice chef after the incident with Miss W and before his arrest. When released in the future, he hope to move to the London area. His training programme, he said, included mandatory drug testing; and he had not taken drugs since May 2011. 
22.	The author of the report, acknowledging the Appellant had made efforts to change his lifestyle and that, as a young man, he may mature in a different environment in the future, considered that an extended sentence may be more appropriate than a sentence for public protection. 
23.	The judge disagreed. Although he did not refer specifically to an extended sentence, it seems to us quite apparent from his sentencing comments that he considered the risk to the public posed by the Appellant could not be adequately addressed by a sentence that entitled him to be released from custody in his 20s (see page 4A‑B of the transcript), even though the period after any such release would be on licence and that licence could be made subject to conditions. Consequently, it seems to us from the face of the transcript that the sentencing judge did have an determinate sentence in mind; but did not consider that that would be adequate to protect the public from the risk the Appellant posed, even if the licence period were to be extnded. 
24.	We consider that the judge was entitled to come to that conclusion. Whilst we appreciate that the Appellant is young ‑ 18 at the time of the offence, 20 at the date of conviction, and still only 21 – and the young are inherently more likely to mature over time, we regard the evidence that the Appellant will do so, or may do so, to be very thin. The Appellant relies upon his purported change of lifestyle and understanding. However, his appreciation in 2009 that he should change did nothing to prevent his brutal attack on Miss W in 2010. And, during that same period between his attack on Miss W and his arrest, that appreciation, his job as an apprentice chef and his move to London did not prevent him, threatening to kill Miss W if she identified him as the perpetrator of the attack and requiring Miss W to go through the ordeal of a trial. In that trial, he denied any assault upon her and, before and during the course of that trial, given his previous assault and threats, she must have been in very considerable fear. Nor did those same matters which he now prays in aid prevent him from committing the common assault in June 2011, to which we have referred.
25.	Furthermore, the short recent report we have had from his prison, which the sentencing judge did not have, does not give grounds for optimism. Whilst on remand he was adjudicated for being in possession of an improvised weapon, and during the first five weeks or so at HMP Wormwood Scrubs in July and August of this year, he had eight unacceptable absences from his Personal Development and Computer Training programmes, and was issued with an IEP warning for non‑attendance.
26.	On the evidence before the sentencing judge, we consider that he was fully entitled to conclude, as he did, that an extended sentence would not adequately protect the public from serious harm as a result of further specified offences committed by the Appellant. The somewhat more extensive evidence that we now have does not, in our view, change that position. The Appellant represents a very substantial risk to the public; and there is no compelling evidence that that risk will recede within any particular time frame, or that it could adequately be addressed after his automatic release at the half-way point of a determinate sentence by conditions attached to his licence, even if the period of that licence is extended, or by any other steps. Indeed, if anything, the evidence points the other way. 
27.	For those reasons, we consider that the substantive sentence imposed was justified, and was neither wrong in principle nor manifestly excessive. We allow the appeal only to the extent that the error in form we have identified is corrected, so that the sentence imposed is not by way of imprisonment, but detention in a young offender institution for public protection. However, that sentence will include the same minimum custodial term imposed by the judge, namely seven and a half years less time spent on remand.