Rich (aka Whitelaw), R. v

Factual and Procedural Background

Judge [Sheldon] heard an appeal by the Appellant against a sentence imposed by Judge [Coates] at The City Crown Court on 20 May 2010. The Appellant had been sentenced to imprisonment for public protection under section 225 of the Criminal Justice Act 2003 for 15 years with a minimum term of seven-and-a-half years. The appeal was lodged very considerably out of time (3 March 2025) and the Appellant sought an extension of time and leave to appeal.

The offending arose from two indictments to which the Appellant pleaded guilty. The offences included three robberies and the theft of multiple motor vehicles; the aggregate value of property was stated as £150,000. The principal incidents were: an armed robbery at the premises of Company A on 11 October 2009 involving an imitation firearm and restraint of staff; forcible removal and assault of a driver on 1 February 2010; an armed robbery at a Company B store on 9 February 2010; and an armed robbery of a branch of Company C bank on 25 February 2010. A pre-sentence report noted drug use and an escalation in offending. The sentencing judge found the Appellant to be a dangerous offender and imposed aggregate sentences totalling 15 years' imprisonment for public protection (half to be served as the minimum term), with specified calculations for eligibility to apply to the Parole Board.

Legal Issues Presented

1. Whether the sentence of imprisonment for public protection was wrong in principle and manifestly excessive because the sentencing judge did not consider alternatives to an IPP sentence after finding the Appellant dangerous.
2. Whether an extended sentence (with a custodial element and an extended licence period) would have been sufficient to protect the public and thus been the appropriate sentencing choice.
3. Whether an extension of time for leave to appeal should be granted in the circumstances of this materially out-of-time application.

Arguments of the Parties

Appellant's Arguments (Attorney [Martin])

• The imposition of imprisonment for public protection was discretionary at the relevant time and not inevitable.
• The sentencing judge failed to consider alternative and cumulative protective measures (for example an extended sentence) and did not explain why alternatives would not protect the public.
• The IPP sentence was therefore wrong in principle and manifestly excessive; no challenge was made to the total custodial term of 15 years.
• Attorney [Martin] relied on principles in Attorney General's Reference No 55 of 2008 and on Pilling [2024] EWCA Crim 1279, noting the Appellant's youth and lack of prior violent convictions.

Respondent's Arguments (Attorney [Barry])

• The absence of explicit reference by the sentencing judge to an extended sentence does not necessarily mean the decision to impose an IPP was flawed.
• Certain cases justify IPP on the facts alone; the offences here were serious, showing escalation and significant risk.
• The court should consider whether, applying Attorney General's Reference, an extended sentence would have provided sufficient protection based on the risk as perceived by the sentencing judge.

Table of Precedents Cited

Court's Reasoning and Analysis

The court granted an extension of time to permit the late application for leave to appeal, finding it was in the interests of justice given the Appellant's lack of earlier knowledge about the availability of an out-of-time appeal and delays attributable to obtaining legal advice.

Substantively, the court found error in the sentencing exercise: Judge [Coates] had properly found the Appellant dangerous (a finding not challenged), but there was no indication in the available materials that alternatives to imprisonment for public protection had been considered or ruled out. The statutory scheme at the time made IPP discretionary and the court must, per Attorney General's Reference No 55 of 2008, consider whether an extended sentence or other measures could provide appropriate public protection before imposing IPP.

Applying those principles to the facts before the sentencing judge—Appellant's age (23), absence of prior violent convictions, guilty pleas and admissions, scope for rehabilitative work in custody, and the nature of the offending—the appellate court concluded an extended sentence would have met the public protection requirement. Therefore the original IPP sentence was outside the range a judge properly applying the relevant principles could reasonably have imposed.

Holding and Implications

The court quashed the sentence of imprisonment for public protection and substituted an extended sentence.

Direct effect: The IPP sentence was quashed and restructured. The court took the armed robbery at Company A as the lead offence and imposed an aggregated custodial term of 15 years (with the other sentences concurrent), together with an extended licence period of five years, producing a substituted 20-year extended sentence.

No broader novel precedent was announced; the court applied existing authority (notably Attorney General's Reference No 55 of 2008) to conclude that an extended sentence, rather than IPP, was appropriate on these facts.