No: 2005/5604/A3 & 2005/5763/A3 
Neutral Citation Number: [2006 EWCA Crim 3423
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Wednesday, 11 January 2006
 
B E F O R E:

MR JUSTICE FULFORD 
 
HIS HONOUR JUDGE FINDLAY BAKER QC
(Sitting as a Judge of the CACD) 

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R E G I N A 

-v- 

KEVIN FRIEND
RICHARD TARRANT 
 
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MR J O'HIGGINS appeared on behalf of the APPELLANTS

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J U D G M E N T 
1.	MR JUSTICE FULFORD:  On 7th October 2005 at the Crown Court at Maidstone, the appellant Tarrant pleaded guilty to an offence of robbery, together with his co-accused, Kevin Peter Lee Friend.  Prior to that date, namely on 22nd August 2005, Tarrant pleaded guilty at the Channel Magistrates Court to two offences of theft for which he was committed to the Crown Court for sentence.  His Honour Judge David Croft QC, sitting as a Deputy Circuit Judge, sentenced both men as follows:  Tarrant was sentenced to a term of detention for public protection pursuant to section 225 of the Criminal Justice Act 2003 with a minimum term of 19 months, less 48 days spent on remand.  In his case one offence of robbery was taken into consideration.  It is unclear both from the court record and the sentencing remarks exactly how the judge dealt with the two offences of theft, although one offence of robbery was taken into consideration.  Friend was sentenced to imprisonment for public protection pursuant to section 225 of the same Act with a minimum term of 12 months, less 17 days spent on remand.  
2.	Tarrant appeals against that sentence with the leave of the single judge.  Friend also appealed against that sentence and was granted leave by the single judge.  However, yesterday this court received notification from him indicating that he wished to abandon his appeal.  At our invitation his counsel, Mr O'Higgins, who also appears before us for the appellant Tarrant, has spoken with Friend in custody by telephone.  He has reiterated to Mr O'Higgins his intention to abandon his appeal, and having had carefully explained to him all the relevant issues that position is, persisted in by Friend, and in those circumstances Mr O’Higgins does not ask this court to adjourn consideration of Friend's case so that a conference can take place.  Therefore, we are now only concerned in this appeal with Tarrant.
3.	The facts of these offences can be shortly stated.  On 18th June 2005 the appellants entered a convenience store in Folkestone and they took some food and drink to the counter.  As soon as the till was opened by the assistant, Miss Kara Phipps, Tarrant went behind the counter and pushed Miss Phipps aside and he, followed by Friend, grabbed money from the till.  They then both left the store taking approximately £150 with them.  The two men had not taken any steps to disguise themselves and they were recognised by police officers from a CCTV record of this incident.  Moreover, Tarrant's fingerprints were recovered at the scene.  
4.	In due course the judge rejected Friend's mitigation that he had joined this criminal enterprise on the spur of the moment when Tarrant pushed the shop assistant to one side.  For wholly sustainable reasons the judge decided that both men had planned this offence in advance.
5.	As regards the offence of robbery which the judge took into consideration, on 17th June 2005 the appellant Tarrant committed a similar offence at a bookmakers in Folkestone.  He pushed the assistant at the till out of the way, grabbed some money and ran out.  
6.	As regards the two offences of theft, on both occasions, again in Folkestone, Tarrant entered jewellers' shops and having asked to look on one occasion at two engagement rings and on the other at some earrings, he ran out with the items without paying.  The overall value of this jewellery, which was never recovered, was over £10,000.  
7.	Tarrant maintained after arrest that he had committed each of the offences whilst under the influence of crack cocaine and that the stolen property had been used to buy more drugs.  He expressed remorse for his actions.  The author of his presentence report emphasised his early resort to drugs and rehearsed that he had a history of offending linked to drug and alcohol misuse, as well as a tendency to respond impulsively and aggressively.  It was recognised that the assumption had to be made that he posed a risk of harm but it was suggested that factors existed that indicated he did not pose a risk of serious harm, not least because in the commission of these offences there was little planning, no weapons were used and no serious physical injury had resulted.
8.	Tarrant is 20 years of age and he has accumulated a formidable criminal record.  He has been sentenced on 22 previous occasions for a total of 49 offences, of which 12 were for criminal damage, five for threatening behaviour, four for common assault, two for affray, two for possessing an offensive weapon, one for assaulting a police officer and one for attempted robbery.  The judge determined that both men having committed robbery, which is a specified offence under the Criminal Justice Act 2003, posed a significant risk to members of the public of serious harm from further offences of violence and as a result he imposed an indeterminate sentence on both for the protection of the public.  
9.	The minimum custodial element of the sentence as regards Tarrant was arrived at in the following way.  The judge noted that he was the person who was primarily responsible for the violence during the robbery on 18th June, although the judge accepted that this was not the worst of robberies in that no weapons were used and no physical injury was caused.  However, the judge rightly observed in our view that it must have been an extremely frightening experience for Miss Phipps.  Taking into account the additional robbery, the starting point for the sentence the judge would have imposed if he had not passed an indeterminate sentence was six years.  He made a deduction of two years for Tarrant's plea and deducted approximately 15 per cent because he would be on licence throughout the period of the sentence, leaving 38 months.  This was then halved, making a custodial period of 19 months, less the 48 days that Tarrant had spent on remand.
10.	In essence Tarrant's appeal is advanced on the footing that the judge should not have passed an indeterminate sentence because it was unreasonable to conclude that there was a significant risk of serious harm to the public.  Because he had been convicted of a serious offence for the purposes of section 225(1) of the Criminal Justice Act 2003, under section 229(1) it fell to the court to consider whether for the appellant there was a significant risk to members of the public of serious harm by the commission on his part of further such offences.  Serious harm is defined as meaning death or serious personal injury, whether physical or psychological (see section 224).  If the answer to that question was in the affirmative, unless a life sentence was appropriate the court is obliged to pass a sentence for public protection.  
11.	In Tarrant's case, because he had one conviction for attempted robbery and two convictions for affray, the court was obliged to assume that such a risk existed unless it considered that it would be unreasonable to conclude that such a risk existed.  In our view it is critical that a judge when deciding whether or not to pass an indeterminate sentence should focus with care and precision on each of the various stages of the test or tests that he or she must apply and that the reasons for the sentence should be clearly, if shortly, explained.  In this case it is submitted that the judge, certainly at times, appeared to be unclear as to the precise nature of the criteria or he ceased to focus on them consistently.  In explaining his decision to the appellants, the judge referred to both the existence of a "significant risk of serious harm" and "a risk of significant harm" and after Tarrant and Friend were taken down to the cells, when he was invited to correct what he had said in passing sentence, the judge referred to "a reasonable risk of them causing significant risk to the public" and "there is a risk and it is a reasonable risk, it is reasonable to conclude that there is such a risk."  Finally, when counsel indicated that there were problems with that formulation as well, the judge said, we observe correctly, "there must be a significant risk to members of the public of serious harm." 
12.	With respect to the judge, in light of those changing remarks, we accept that there is force in the submission advanced before us that bearing in mind his failure to use consistent language when setting out his reasons for passing these sentences the judge may not have approached the elements of the test properly.  He referred to both "a risk" and "a reasonable risk" as well as "a significant risk".  Furthermore, he conflated serious harm with significant harm or significant injury and, as we have already pointed out, serious harm is the subject, importantly, of a precise and narrow definition. "Significant harm" may well include harm that is less grave than "serious harm" as defined by the Act.  
13.	Although, as we have pointed out, the judge also referred to the correct tests during his sentencing remarks, the marked impression is left that he may unconsciously have applied a lesser criteria than that provided for in the relevant sections of this Act which we remind ourselves have only relatively recently come into force.  Furthermore, as this court made clear in R v Lang and Others [2005] EWCA Crim. 2864, unless the information about the offence or offences, the pattern of behaviour and the offender together show a significant risk of serious harm from further offences, it will usually be unreasonable to conclude that the assumption applies.  In our view on the particular facts of this case once the judge had considered the circumstances of the relevant offences, the pattern of Tarrant's behaviour and all of the information about him, he should have decided to use the language of the Act "that it would be unreasonable to conclude" that there was a significant risk of serious harm from him to members of the public.  Tarrant had not inflicted or attempted to inflict serious harm in the past.  As regards this joint offence of robbery, as well as the further offences involving him alone, aside from pushing a shop assistant to one side, Tarrant had not utilised any violence.  
14.	Although, as we have already observed, in the past he has been a prodigious offender, there is scant, if any, indication that his offending is worsening; still less that it is deteriorating to the level where he could be said to pose a significant risk of serious harm to members of the public.  For those reasons, in our view, this sentence that was passed of detention for public protection should be quashed.  
15.	The next issue is the sentence in his case that we should substitute.  We agree with the starting point identified by the judge and we note that in the grounds of appeal Mr O'Higgins on his behalf does not quarrel with this aspect of the sentencing exercise.  Given that for him this will now be a determinate sentence, the period will be 38 months, less the 48 days spent on remand.  To that extent and for those reasons this appeal is allowed.