Ashmore, R. v

Factual and Procedural Background

On 1 November 2005, in the Crown Court at Minshull Street, The City, the Applicant, aged 18, pleaded guilty to causing grievous bodily harm with intent (count 1) and to breach of an Antisocial Behaviour Order (count 3). On 6 December 2005, His Honour Judge Lowcock sentenced the Applicant on count 1 to an indeterminate sentence of detention for public protection under the Criminal Justice Act 2003, with a minimum term of 17 months, and on count 3, to a concurrent determinate term of 15 months' detention in a young offender institution.

The Applicant, born on 9 March 1987, was involved in a violent incident on 29 April 2005 outside a public house in Oldham Town Centre. He and two co-defendants, after heavy drinking, assaulted the victim by stamping on his head and punching him, causing serious injuries requiring hospitalisation and surgery.

The Applicant was arrested on 20 July 2005, admitted to assaulting the victim but was intoxicated at the time and could not recall the events. Both co-defendants pleaded guilty to similar charges. The Applicant had a previous conviction for violent disorder committed in 2003 at age 16, for which he received a Detention and Training Order and an Antisocial Behaviour Order, though details of his involvement were unclear.

The Applicant applied for an extension of time of 6,771 days to seek leave to appeal against sentence. The Registrar referred this to the full court, with the extension contingent on the merits of the proposed appeal.

Legal Issues Presented

1. Whether the imposition of an indeterminate sentence of detention for public protection on the Applicant was wrong in principle or manifestly excessive under the legal framework applicable at the time of sentencing.
2. Whether the sentencing judge erred in applying the dangerous offender provisions of the Criminal Justice Act 2003, particularly in relation to the presumption of dangerousness under section 229(3).
3. Whether the sentencing judge properly considered the Applicant's youth, maturity, and potential for rehabilitation.
4. Whether there was unjustified disparity between the sentence imposed on the Applicant and those imposed on his co-defendants.

Arguments of the Parties

Appellant's Arguments

• The sentence was manifestly excessive and/or wrong in principle; a determinate sentence should have been imposed.
• The sentencing judge failed to apply the principles from R v Lang [2005] EWCA Crim 2864 regarding dangerousness and sentencing.
• The judge did not adequately consider the Applicant's immaturity and greater potential for rehabilitation due to his young age.
• The judge did not properly assess the Applicant's previous conviction for a specified offence in determining dangerousness.
• There was disparity in sentencing between the Applicant and his co-defendants unjustified by their roles and antecedents.

Respondent's Arguments

• The judge correctly applied the statutory test for dangerousness and considered the nature of both the 2005 and 2003 offences along with the Applicant’s pattern of behaviour.
• Despite the Applicant’s youth and immaturity, the judge was entitled to apply the presumption of dangerousness under section 229(3).
• However, the judge was not assisted by submissions on Lang when imposing the indeterminate sentence for public protection, which might have influenced the decision.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Lang [2005] EWCA Crim 2864	Principles governing dangerous offender provisions and sentencing discretion, particularly regarding youthful offenders and the presumption of dangerousness.	The court held that the sentencing judge failed to apply these principles properly, especially in assessing the Applicant’s maturity and rehabilitation prospects, contributing to the sentence being manifestly excessive.
R v Roberts [2016] EWCA Crim 71	Appellate review of sentences must be based on the legal framework at the time of sentencing, not subsequent changes.	The court applied this principle to evaluate the correctness of the original sentence without regard to later developments in the Applicant’s conduct or law.
R v Leighton Williams [2024] EWCA Crim 686	Clarification of the evaluative nature of dangerousness assessments and the need to consider offender maturity and pattern of behaviour.	The court relied on this precedent to emphasize that the sentencing judge’s decision was an evaluative judgment and that errors of principle must be identified to overturn it.
R v Peters [2005] EWCA Crim 605	Consideration of biological versus developmental maturity in sentencing young offenders.	Referenced to highlight the importance of assessing maturity beyond chronological age, which was not done in this case.
R v Clarke [2018] EWCA Crim 185	Reiteration of the need to consider young offender's maturity and impulsivity in sentencing.	Supported the argument that the sentencing judge failed to consider relevant factors relating to the Applicant’s youth and impulsivity.

Court's Reasoning and Analysis

The court began by affirming that the review of the sentence must be conducted under the legal framework as it stood in December 2005, without regard to subsequent developments. The central question was whether the sentencing judge erred in principle or imposed a manifestly excessive sentence by treating the Applicant as dangerous under the Criminal Justice Act 2003.

The court noted that the sentencing judge was required to assume dangerousness under section 229(3) due to the Applicant’s previous specified offence, unless it was unreasonable to do so. However, the judge failed to properly consider several critical factors:

• The nature and extent of the Applicant's involvement in the 2003 offence was not identified or considered.
• No pattern of behaviour was established from the 2003 and 2005 offences to justify dangerousness.
• The Applicant’s maturity, both biological and developmental, was not assessed.
• The implications of maturity, pattern of behaviour, and rehabilitation prospects were not evaluated in relation to future risk.

The court acknowledged the limited assistance from the pre-sentence report but highlighted that it contained pointers to the Applicant’s immaturity and vulnerability to negative influences such as peer pressure and alcohol. The sentencing judge should have factored these into the dangerousness assessment.

Applying the principles from R v Lang and related authorities, the court concluded that the presumption of dangerousness was displaced and that the indeterminate sentence was therefore wrong in principle and manifestly excessive. The court found no merit in the claim of unjustified sentencing disparity between the Applicant and co-defendants, given their differing roles and antecedents. It also found that the determinate sentence after trial would not have been excessive.

Holding and Implications

The court granted the Applicant an extension of time to apply for leave to appeal against sentence, granted leave to appeal, and allowed the appeal.

The sentence of detention for public protection imposed on count 1 was quashed. It was substituted with a determinate sentence of detention in a young offender institution for three years and six months. The concurrent sentence on count 3 remained undisturbed.

The decision directly affects the Applicant by replacing an indeterminate sentence with a determinate one, reflecting a more appropriate assessment of risk and maturity. No new legal precedent was established beyond the application and reinforcement of existing principles concerning dangerousness and sentencing of young offenders.