Sangermano, R. v

Factual and Procedural Background

The Appellant was charged with multiple offences arising from an incident on 29 October 2020 involving the injured party. The initial charges included wounding with intent, possession of an offensive weapon with intent, criminal damage, and common assault. The Appellant pleaded not guilty at arraignment but later entered a guilty plea on an agreed basis to one count of causing actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861, with the remaining counts left on the books.

The sentencing hearing took place on 7 February 2022, following disclosure of various evidentiary materials including medical records, social services reports, and a pre-sentence report (PSR). The sentencing judge imposed an extended custodial sentence (ECS) of two and a half years immediate imprisonment with a two-year licence period and a five-year violent offences prevention order (VOPO) with multiple conditions aimed at protecting the public and the injured party.

The Appellant appealed the sentence on several grounds, primarily challenging the assessment of dangerousness, the length of the custodial term, and the imposition of the VOPO.

Legal Issues Presented

1. Whether the sentencing judge erred in law by attributing a level of culpability unsupported by the basis of plea.
2. Whether the judge’s finding that the Appellant was a “dangerous offender” was legally erroneous.
3. Whether the violent offences prevention order (VOPO) was necessary and appropriate.
4. Whether the immediate custodial term imposed was manifestly excessive or wrong in principle.
5. Whether the terms of the ECS licence and VOPO were disproportionate.

Arguments of the Parties

Appellant's Arguments

• The basis of plea (BOP) document inadequately and incompletely conveyed the factual basis of the guilty plea, lacking meaningful factual detail and containing vague statements such as "acted in a reckless manner" and "went beyond self-defence" without factual foundation.
• The sentencing judge impermissibly considered evidence and information outside the agreed BOP, including allegations related to discontinued counts and other conduct not admitted by the Appellant.
• The assessment of dangerousness was flawed due to reliance on impermissible information and a lack of proper evidential foundation.
• The VOPO was unnecessary and disproportionate given the circumstances and the nature of the offence.
• The immediate custodial sentence of 30 months was excessive, and a lesser sentence consistent with the BOP and seriousness of the offence was appropriate.

Respondent's Arguments

• The sentencing judge was entitled to consider the full range of information available, including the pre-sentence report, medical and social services records, and the Appellant’s criminal history, in assessing dangerousness and appropriate sentencing.
• The BOP, although imperfect, was accepted by the court and did not preclude consideration of relevant material facts outside the narrow wording of the BOP document.
• The ECS and VOPO were appropriate and necessary measures to protect the public and the injured party given the Appellant’s history and risk profile.
• The custodial term was justified by the gravity of the offending and the Appellant’s prior convictions and behaviour.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Newton [1982] 77 Cr App R13	Procedure where there is dispute about facts in a guilty plea context; judge’s approach to contested issues at sentencing.	The court emphasized the need for clear parameters and fair hearing rights, endorsing the principle that the accused’s version should be accepted "so far as possible" if disputes remain unresolved.
R v McCullough [1999] NI 39	Application of Newton principles; judge’s role in determining participation and culpability post-trial.	Confirmed that the judge must be satisfied beyond reasonable doubt regarding disputed facts relevant to sentencing.
Attorney General’s Reference No 6 of 2004 (Doyle) [2004] NICA 33	Confirmation of Newton principles and appellate court’s role in accepting particular facts without conducting Newton hearing.	Reinforced that appellate courts should accept certain agreed facts without re-hearing contested issues.
R v Magee [2007] NICA 21	Assessment of defendant’s conduct and state of mind in sentencing following guilty plea.	The appellate court made its own assessment of facts when sentencing issues were in dispute.
R v Cairns [2013] EWCA Crim 467	Principles governing basis of plea documents and sentencing; the judge’s duty to notify parties if not accepting agreed facts.	Adopted fully by the court; emphasized the importance of clear, truthful BOP documents and procedural fairness in sentencing.
R v Morrow [2019] NICA 71	Procedural fairness in sentencing and Newton hearings; importance of clear hearing structure and defendant’s right to fair process.	Found that the appellant was deprived of a fair sentencing hearing; stressed the need for clarity and procedural fairness.
R v EB [2010] NICA 40	Assessment of dangerousness and significant risk of serious harm; emphasis on pre-sentence report and procedural fairness.	Provided detailed guidance on the assessment of dangerousness, the role of pre-sentence reports, and the need for judicial caution and fairness.
R v Pluck [2007] 1 Cr App R (S) 43	Role of pre-sentence reports in assessing risk and dangerousness; requirement to warn counsel if judge intends to depart from report’s conclusions.	Affirmed importance of pre-sentence report as key source but not binding; procedural fairness demands warning if judge differs.
R v Hanrahan [2021] NIJB 344	Legal test for violent offences prevention orders (VOPOs); necessity for protecting the public from risk of serious harm.	Applied statutory test for VOPO; confirmed no burden of proof and requirement for predictive evaluative judgment based on sufficient evidence.

Court's Reasoning and Analysis

The court conducted a detailed analysis of the procedural and substantive issues arising from the sentencing process, focusing primarily on the adequacy and content of the basis of plea (BOP) document, the permissibility of information considered by the sentencing judge, and the assessment of dangerousness.

The court found the BOP document to be deficient, lacking sufficient factual specificity and containing vague assertions not supported by clear facts. It emphasized the shared responsibility of prosecution and defence counsel to ensure the BOP accurately and comprehensively reflects agreed facts to avoid confusion and unfairness.

Regarding the sentencing information, the court distinguished between material that the judge could permissibly consider—namely, information consistent with the BOP and relevant statutory provisions—and impermissible material relating to discontinued charges or unadmitted conduct. The court held that the judge should have disregarded evidence related to the three counts left on the books and other allegations outside the agreed factual basis.

Despite the inclusion of some impermissible information in the sentencing exercise, the court determined that sufficient permissible material existed to uphold the judge’s assessment that the Appellant was a dangerous offender. The court stressed the need to balance deference to the sentencing judge’s expertise with the requirement to exclude impermissible considerations.

On the VOPO, the court applied the statutory test and relevant case law, concluding that the order was appropriate and necessary to protect the public and the injured party. The court noted that the terms of the VOPO were compatible with the sentencing regime and the Appellant’s circumstances.

Concerning the custodial term, the court acknowledged that reliance on impermissible information had inflated the sentence. It substituted a reduced immediate custodial term of 21 months in place of the 30 months originally imposed, finding the former more proportionate and consistent with the proper sentencing framework.

The court also highlighted procedural shortcomings, including inadequate briefing of probation officers compiling the PSR and failure of counsel to properly address discrepancies between the BOP and other materials. It recommended consideration of separate protocols or practice directions to improve clarity and fairness in future cases.

Holding and Implications

The court dismissed the Appellant’s challenge to the dangerousness assessment and the imposition of the VOPO. It upheld the extended custodial sentence mechanism but substituted the immediate custodial term from 30 months to 21 months imprisonment.

The effect of this decision is that the sentencing package imposed remains largely intact, affording protection to the public and the injured party, while correcting the custodial term to better reflect the factual basis of the plea and sentencing principles. No new precedent was established; rather, the court reinforced existing principles regarding the importance of a clear basis of plea, procedural fairness in sentencing, and the proper application of statutory dangerousness and VOPO tests.