Tag Archives: discretionary life

Skullcracker gets another life sentence for another robbery

From the BBC News website

From the BBC News website

Michael Wheatley – the Skullcracker – pleaded guilty to robbery, possession of a firearm and being unlawfully at large on 7 May.

On 29 May, he was sentenced to life imprisonment with a minimum period of 10 years.

Wheatley was in prison for numerous armed robberies. He was on day release and failed to return. Predictably, he went and robbed a bank (£18,000) and was subsequently caught in east London.

Previous

As has been widely publicised, he had extensive previous. He had 23 previous convictions for robbery, two for attempted robbery and 18 for related firearms offences.

In 2002, he was given 13 life sentences for bank robberies.

Escape

He was serving a life sentence at an open prison when he failed to return from day release.

The BBC reported that ‘He had gone on the run twice in the past and each time staged a series of violent robberies before being caught and re-jailed.’

Sentence

So a straightforward life sentence? Er, not quite.

Wheatley was sentenced for the robbery and the related firearm counts. There are four types of life sentence in England and Wales:

1)      Mandatory life (murder cases only)

2)      Discretionary life (where the offender is ‘dangerous’)

3)      Discretionary life (where the offender is not ‘dangerous’)

4)      Automatic life (where the offender has particular previous convictions)

So which applies here?

Considering his previous convictions, it is undoubted that Wheatley is ‘dangerous’ within the meaning of the Criminal Justice Act 2003 which provides the power to imprison someone for life.

But also, due to his previous convictions, automatic life (also known as ‘two strikes life’) also applies. Here’s why:

a)      At the time of the new offence, Wheatley has a previous conviction (more than one actually) for armed robbery – this is a requirement under CJA 2003 Sch 15B

b)      The sentence(s) received a custodial term of either 10 years + or a life sentence

c)      He now, after 3 December 2012 (because that is when the automatic life sentence was available from) has another conviction for a CJA 2003 Sch 15B offence – armed robbery

d)     The sentence for the new offence is worth 10 years + or life

We don’t have a transcript so it may be that the Judge got it bang on. But what should have happened? The Judge should have considered dangerousness and recorded that Wheatley was dangerous and therefore was receiving a life sentence under those provisions. He should then have considered automatic life and recorded that Wheatley was also subject to those provisions.

Anything else?

The Judge should probably have made an order for Wheatley to pay £120 victim surcharge, although due to sloppy legistlative drafting this is not entirely clear.

A point of note

The way in which the automatic life sentence works means that in very rare cases, someone could receive a life sentence for an offence which does not carry life as its maximum. Here’s why:

The list of offences in Sch 15B contains offences which do not carry life as a maximum – making etc. indecent images of children (10 years) for example. If a person had a conviction for rape (max sentence life) and received 12 years, and then subsequently was convicted of the indecent images offence, and would (but for the automatic life provisions) receive the maximum 10 year sentence, automatic life would apply and they would be  in line for a life sentence, even though the new offence a) wasn’t ‘worth’ a life sentence and b) the maximum sentence for the new offence wasn’t life imprisonment.

Funny huh?

So why doesn’t life mean life?

We had a look at this issue previously, here. In essence, the ‘life’ in life sentence refers not to the imprisonment, but the sentence as a whole, being made up of a custodial term, and the life licence which the offender is subject to upon his or her release.

 

Nicky Suddons given second life sentence for attempted rape

Image from Daily Mail

Image from Daily Mail

Nicky Suddons, 26, has been given a second life sentence for attempted rape committed whilst on day release from prison.

An article in The Daily Mail set out the background

Previous convictions

He had received a life sentence (minimum term four years) in 2005 when aged 17 for rape and six sexual assaults. The victims were aged 13 to 28 years. Several of the attacks were committed with the use of a knife.

Day release

Whilst on day release from that life sentence, he – so say the Mail – assembled a ‘rape kit’ containing condoms, a knife, balaclava and gloves, and set about trying to rape a 50-year-old woman who was walking her dog in a park. The Mail reports that Suddons was unsuccessful in his attempted rape because the victim’s dog attacked him.

Second life sentence

Suddons was given a life sentence with a minimum term of 6 years. The Judge said:

“I strongly suspect that the lesson in your case has been learned, and it will be many years, if not decades – and it may be never – when it comes to considering your release.

You are an extremely dangerous human being. I am convinced you will sexually assault and rape women in the future if you are released.”

Suddons was convicted and so we can assume that the Judge took a starting point of 12 years. There was no credit for pleading guilty and the starting point would have been increased by his previous offending, and the fact the offence was committed whilst he was on day release. It is likely to have been mitigated by the fact that this was an attempt, and not the full offence, however the effect of that as mitigation will be limited because of the fact that Suddon was prevented from carrying out the full offence, as opposed to changing his mind and stopping the attack of his own volition.

Is this an automatic life case?

Automatic life is also known as ‘two-strikes life’. This is because where an offender has a second listed offence, they are liable to a life sentence – the conviction for the second listed offence being their ‘second strike’.

Rape is a listed offence and so as Suddons has a previous conviction for it (the 2004 rape), at first glance it appears that automatic life applies, because of his second listed offence – the 2013 attempted rape.

However, as usual, it isn’t quite as simple as it first seems. There is a condition which requires the sentence imposed for the ‘first strike’ – in this case, the 2004 rape – is of a certain length. For life sentences, the offender must not be eligible for release in the first 5 years of the sentence. In this case, Suddons would have been eligible for release after 4 years (notwithstanding that it appears he was kept in prison beyond that tariff).

So the conclusion is that automatic life did not apply in this case because there was no ‘first strike’.

The route by which the Judge determined that Suddons’ offence warranted a life sentence is therefore discretionary life under CJA 2003 s 225 – what is known as the dangerousness provisions. The Judge asked himself whether Suddons posed a significant risk of serious harm to members of the public. Clearly he did and therefore a life sentence was imposed. The minimum term was set at 6 years and so this would count as a first strike in the future, if Suddons was ever to be released.

Court of Appeal expect more discretionary life sentences in wake of LASPO

 

In conjoined appeals, the Court of Appeal considered the imposition of what is commonly known as a discretionary life sentence.

The appeals were heard together as they raised similar issues in relation to the correct approach to the issue of dangerousness in the wake of the changes to the Criminal Justice Act 2003 effected by LASPO.

 Life imprisonment

The court set out the circumstances in which a sentence of life imprisonment could be imposed:

1. Following a conviction for murder.

 The provisions are unchanged. The sentence is mandatory.

 2. Following a conviction for a second ‘listed’ offence.

Under CJA 2003 s 224A – the court must impose such a sentence unless the circumstances make it unjust to do so – the court described this as a statutory life sentence. This was the sentence described as ‘automatic life’ and ‘two strikes life’ by the press and the MoJ.

3. Following a conviction for a ‘specified’ offence.

Under CJA 2003 s 225 – the court must impose such a sentence where the conditions in s 225(1) and (2) are met (essentially that the defendant poses a significant risk of serious harm to the public, and that the seriousness of the offence justifies such a sentence).

This is the sentence known colloquially as ‘discretionary life’. The court took issue with that description in that the sentence is mandatory where the conditions are made out. The court said that in a broad sense, this was also a statutory life sentence.

4. Following a conviction for a sentence which carries life imprisonment but which is not a specified offence under section 225

 Of this situation, the court said this:

“The jurisdiction to impose a life sentence in an appropriate case has survived the enactment of the 2003 Act and the changes to the sentencing regime affected by LASPO. If it had been intended to abolish it, the appropriate legislative change could readily have been made by provisions restricting the life sentence (other than the mandatory sentence) to the statutory sentence or the discretionary sentence under s.225(1) and (2). As it is, neither the 2003 Act, nor LASPO, imposed any limit on the power of the court to impose a sentence of life imprisonment in such cases. Some of these offences may involve a significant risk of serious harm to the public, but are not included within the list of “specified” offences in the dangerousness provisions in the 2003 Act. One obvious example is the offender who commits repeated offences of very serious drug supplying which justifies the imposition of the life sentence. In circumstances like these the court is not obliged to impose the sentence in accordance with s.225(2), but its discretion to do so is unaffected.”

Why is this an issue?

Well as you will recall, the much criticised IPP sentence was repealed in December 2012.

Prior to the repeal, custodial sentences for serious offences were as follows:

  • Life (mandatory) – murder only
  • Life (discretionary) – limited offences such as s18 wounding and rape
  • IPP – a wide range of sentences including s20 GBH
  • Extended Sentence – a wide range of sentences including ABH
  • Determinate sentence – all serious offences

An IPP sentence was essentially a life sentence; a minimum term was set and the prisoner would be released only when the parole board was satisfied that he no longer posed a risk to the public. The test for imposing a an IPP sentence was essentially the same as ‘discretionary life’, but it was considered to be a less serious sentence in that the minimum terms were generally shorter, and they were imposed for crimes which did not carry life as a maximum sentence.

When LASPO changed the law, the hierarchy became as follows:

  • Life (mandatory) – murder only
  • Life (discretionary)
  • Life (automatic/two strike)
  • EDS (Extended Determinate Sentence) – this comprised of a determinate custodial sentence, and a licence extended beyond the normal term mandated by the length of the custodial sentence.
  • Determinate sentence

The new statutory life sentence, nor the new EDS sentence did not replace IPP. The court said:

“Many offenders who represent a danger to the public may not “qualify” for the statutory life sentence. Yet, for some offenders, the imperative of public protection continues undiminished, and is not wholly met by the “new” extended sentence. Very long term public protection must therefore be provided by the imposition of a discretionary life sentence.

[Due to the nature of an EDS sentence, which is not indefinite] in relation to the offender who will continue to represent a significant risk to the safety of the public for an indefinite period, the new extended sentence cannot be treated as a direct replacement for the old IPP.”

The court’s conclusion

“Accordingly, in cases in which, prior to the enactment of LASPO, the court would have been driven to the conclusion that an IPP was required for public protection … the discretionary life sentence will arise for consideration, and where appropriate, if the necessary level of public protection cannot be achieved by the new extended sentence, ordered.”

Essentially, the court was stating that in the absence of a power to impose IPP, a discreitonary life sentence will be imposed as the new EDS sentence will not provide the required level of protection for the public – there will be more discretionary life sentences.

Comment

This is no surprise.

In fact, three days after the repeal of the IPP sentence in December 2012, we published this post which raised exactly this question – in slightly less than neutral language – have the MoJ and Parliament inadvertently caused an increase in the number of life sentences?

Repealing IPP – the intermediary between an extended sentence and a life sentence – created a lacuna into which some (but not many) defendants will fall.

If an EDS (new extended sentence) will not suffice ie it will not provide sufficient protection for the public, then the only alternative is a discretionary life sentence.

Do we really want to be condemning increasing numbers to the heafty penalty of a life sentence? Do we need to? Should increasing amounts be spent on the ancillary costs associated by a life sentence (parole board, life licence etc.)?

More poor policy decisions from the MoJ, and the tax payer and defendants pay the price.

Life Sentences II (discretionary)

There are various other offences for which a life sentence can be passed. These tend to be the more serious offences – manslaughter, wounding with the intention of causing really serious harm, rape, robbery etc.

A life sentence would only be passed for an offence if the criteria for dangerousness and an IPP is met and the Court is of the view that because of the nature of the offence or offences, a sentence of life imprisonment should be imposed.

In practice, given the availability of IPP, discretionary life sentences should be imposed only rarely (Kehoe [2008] EWCA Crim 819) and only where the offence is ‘particularly high’ or the culpability of the offender is ‘particularly grave’.