Dangerousness and Extended Determinate Sentences: Reasons Must Address Public Risk (Baker & McGuire)

1. Introduction

R v Baker & Anor ([2026] EWCA Crim 154) is a Solicitor General’s reference for unduly lenient sentences under section 36 of the Criminal Justice Act 1988. The Court of Appeal (Criminal Division) reconsidered the sentences imposed on two offenders, Baker and McGuire, arising from a serious group attack in which Baker used a large machete to inflict multiple wounds on the victim, Daniel Pettit, and attempted to strike the victim’s partner, Keira Maguire.

The central issues were:

  • Whether the Recorder’s harm categorisation under the Sentencing Council guideline for wounding with intent (OAPA 1861, s 18) was too low.
  • Whether the overall sentences were outside the range reasonably open to the sentencing judge (the test for “unduly lenient”).
  • Critically, whether—having found Baker to be dangerous—the Recorder erred in declining to impose an extended determinate sentence (EDS) on reasons not sufficiently directed to management of future risk.

2. Summary of the Judgment

The Court granted leave and held the sentences were unduly lenient.

  • Harm: Even if not Category 1, the harm was at the top of Category 2, and the case lay close to the borderline requiring upward adjustment.
  • Baker: The Court substituted an EDS of 13 years comprising a 10-year custodial term and a 3-year extended licence period. It also corrected the concurrent sentence on the attempted s 18 count as wrong in principle (substituting 5 years and 2 months concurrent), though this did not change total custody.
  • McGuire: Despite his lesser role, the Court increased the determinate sentence to 8 years (no guilty plea credit).

3. Analysis

3.1 Precedents Cited

The Court anchored its approach to section 36 references in established authorities:

Attorney-General's Reference (Egan) [2022] EWCA Crim 1751; [2023] 2 Cr App R(S) 16

The Court relied on this case for the core framework governing “unduly lenient” references, including:

  • Deference to the first-instance judge’s advantage in weighing factors.
  • The strict threshold: a sentence is unduly lenient only if it falls outside the range reasonably open to the judge.
  • Leave is for exceptional cases, not borderline disagreements.
  • Section 36 addresses gross error.

In Baker & McGuire, this framework was decisive: the Court framed intervention not as a different preference, but as correction of sentencing outcomes and reasoning that could not reasonably stand.

Attorney-General's Reference No 132 of 2001 (Bryn Dorian Johnson) [2002] EWCA Crim 1418;[2003] 1 Cr App R(S) 41

The Court cited this authority to emphasise the public confidence rationale of the reference procedure: it exists to address widespread concern where a sentence appears to depart substantially from general norms. In the present case, the ferocity of a machete attack and the lasting effects described in the victim statement made that public confidence dimension particularly salient.

Attorney-General's Reference No 4 of 1989 (1990) 90 Cr App R 366

This “seminal decision” was cited for the proposition that even if a sentence is unduly lenient, the Court retains a discretion whether to increase it. Baker & McGuire illustrates the practical operation of that discretion: the Court chose to intervene robustly because the combination of (i) seriousness of harm, (ii) error in guideline application, and (iii) misdirection in the dangerousness/EDS analysis meant correction was required.

3.2 Legal Reasoning

(A) Harm categorisation and “borderline” adjustment

The Recorder had placed harm for the s 18 count in Category 2. The Solicitor General argued for Category 1, pointing to the extent of injuries, long-term functional impact, and the intended/foreseeable harm under section 63 of the Sentencing Act 2020.

The Court’s reasoning was careful and structured:

  • It acknowledged the trial judge’s superior position to assess the evidence and make evaluative judgments about harm.
  • Even so, it held that the harm was at the top of Category 2, expressly invoking the guideline’s direction that upward adjustment may be required where the case lies close to a category boundary.
  • The Court also stressed the need to incorporate the reality of the overall criminality (including the attempted s 18 and weapon count), rather than sentencing the lead offence in isolation.

(B) Intended/foreseeable harm (section 63 Sentencing Code)

The Court reaffirmed that sentencing for serious violence must reflect not only injuries actually caused but also harm intended or foreseeably risked. In the context of repeated machete strikes (including towards the head/chest), section 63 supported a more severe assessment of seriousness than a purely outcome-based analysis.

(C) Correcting a concurrent sentence “wrong in principle”

On Baker’s attempted s 18 count, the Court found the Recorder had effectively adopted a notional post-trial figure below the guideline range (for the assumed category) without explanation. The error mattered because:

  • Concurrent sentences can still be wrong in principle and distort the overall sentencing architecture.
  • The Court’s role under section 36 includes correcting identifiable guideline/structure errors, not merely altering totals.

The substituted concurrent term (5 years and 2 months) did not change total custody, but it restored guideline coherence.

(D) Dangerousness and Extended Determinate Sentences: reasons must be risk-focused

The most important doctrinal contribution of the judgment concerns the relationship between: (i) a finding that an offender is dangerous, and (ii) the decision whether to impose an extended determinate sentence.

The Court held that although there is discretion not to impose an EDS, where dangerousness is found there must be a sufficient and reasonable explanation for declining it—an explanation that engages with management of the risk to the public.

It accepted the Solicitor General’s critique that the Recorder’s listed reasons were “very largely unrelated” to risk management and that some were irrelevant. The Court singled out, in particular, reliance on the fact that the offender would serve two-thirds of the sentence as merely reflecting statutory early release policy, not an additional public protection measure.

The Court then reinforced the risk-based analysis by pointing to:

  • Baker being on licence at the time.
  • A prior bladed-article conviction and the inference that he had not learned from prior custody.
  • The risk indicators in the pre-sentence report, including the high risk of serious harm assessment.

The resulting EDS (10 years custody + 3 years extended licence) demonstrates the Court’s view that post-release controls were necessary to protect the public, beyond ordinary licence arrangements.

3.3 Impact

(A) Sentencing practice in serious group violence involving weapons

The judgment signals a firmer approach where:

  • A highly dangerous weapon is used repeatedly (particularly towards vulnerable areas such as head/chest).
  • The victim’s long-term functional impairment is evidenced (even if the medical material is limited).
  • The case sits close to a guideline boundary—courts must actively consider upward adjustment rather than treating categories as rigid boxes.

(B) Section 36 references: structured errors and “reasoning errors” can amount to undue leniency

Baker & McGuire illustrates that undue leniency can be established not only by an arithmetically low term, but by:

  • Misapplication of guideline ranges without explanation.
  • Failure to reflect total criminality across counts.
  • Inadequate risk-focused reasoning when declining protective sentencing measures after a dangerousness finding.

(C) Dangerousness/EDS decisions: mitigation is not the same as risk reduction

The decision is likely to be relied on in future as authority for the proposition that where a judge finds dangerousness, the decision not to impose an EDS must be justified by reference to public protection and risk management, not primarily by mitigation (remorse, prison courses, age, family support) unless clearly tied to a reduction in risk.

4. Complex Concepts Simplified

  • Unduly lenient (section 36 Criminal Justice Act 1988): Not “a bit low”. The sentence must fall outside the range reasonably open to the judge—typically involving “gross error”.
  • Category 1 vs Category 2 harm (s 18 guideline): Category 1 is reserved for the most extreme outcomes (life-threatening or permanent, substantial long-term impairment). Category 2 is still “grave injury”. A case can be “top of Category 2” where it nearly meets Category 1 features.
  • Section 63 Sentencing Act 2020: Courts must consider not only what happened, but what the offender intended or what harm was foreseeably risked (important where violence could easily have been fatal even if it was not).
  • Concurrent sentences: Sentences served at the same time. Even if they do not increase the total, they must still be correctly calculated and justified.
  • Dangerousness and an Extended Determinate Sentence (EDS): If the offender is “dangerous”, an EDS adds an extended licence period after release, increasing post-custody supervision and recall powers to manage risk. Declining an EDS requires reasons that genuinely explain why ordinary release/licence is sufficient.

5. Conclusion

[2026] EWCA Crim 154 strengthens the discipline of sentencing in two connected ways. First, it confirms that where serious violence sits near a guideline boundary, courts must engage with upward adjustment and with intended/foreseeable harm under section 63. Second—and most significantly—it establishes that where a court finds an offender to be dangerous, a decision to decline an EDS must be supported by a risk-management rationale; mitigation and general observations about statutory release provisions will not suffice. The result was substantial upward revision of both sentences and the imposition of an EDS on Baker to secure public protection.