*Please note – under the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, Judges can no longer sentence offenders to Imprisonment for Public Protection (“IPP”) or pass an Extended Sentence for Public Protection (“EPP”) where the offender was convicted after 3rd December 2012.
The example below is based on the old law, and presupposes that Adam’s conviction was prior to 3rd December 2012.
The guidelines indicate that the starting point for rape (without any aggravating features) is 5 years. Assume that this is the sentence that the Judge is thinking of.
If the Judge considers Adam to be especially dangerous, or the offence particularly grave (not likely if the Judge was thinking of a 5 year sentence) then he can impose a life sentence. The tariff would be 2½ years (based on halving the 5 years).
If the Judge thinks that Adam presents a significant risk of serious harm to members of the public (and this could include, for example, one person, ie a girlfriend), then he would consider an IPP or EPP.
Due to the fact that the sentence would be over four years, it does not matter if Adam has been convicted of any offences before, both sentences are available. The Judge should consider both and, if he believes that an Extended sentence would provide sufficient protection, then impose that (as it is a less onerous sentence than an IPP).
If he did this, it would be an IPP with a tariff (minimum term) of 2½ years. If he were to concluded that an extended sentence would be sufficient, the extension period would have to be 8 years or less. If he chose a period of 6 years, the sentence would be an EPP of 11 years, comprising a 5 year custodial period and a 6 year extension period.
This can cause confusion in the press. If someone gets an 11 year ‘normal’ sentence, they will be released after 5½ years and spend 5½ years in the community being supervised by Probation. If it was a sentence such as Adam got, then he would serve 2½ before being eligible for release (and would have to be released after 5 years), and would be supervise by Probation until 11 years after the sentence was passed.
Imagine Adam gets 5 years and is later released. After his licence period has expired, he gets in a pub fight and is convicted of ABH (causing actual bodily harm).
The maximum sentence for ABH is 5 years and therefore (as this is not life, and less than 10 years), it doesn’t matter how serious the case is, or how dangerous the Judge thinks Adam is, he cannot impose a life sentence or an IPP.
As ABH is a specified offence, the Judge can, if he thinks that there is a significant risk of serious harm (note that serious harm means something more than ABH), impose an Extended Sentence.
The mechanics are difficult however. As Adam has a previous conviction for rape, the Judge can impose an Extended sentence whatever sentence he would impose for ABH. Say the Judge takes a starting point of 3 years. As the maximum sentence is 5 years, the extension period cannot be more than 2 years (as the Judge cannot sentence Adam to more than the maximum). If the Judge wanted to sentence Adam to 6 months, but felt Adam is a grave danger, he can pass an extended sentence. As the minimum is 12 months, that would be the custodial part, with the extension period being anything up to 4 years.