Gardener [2019] EWCA Crim 170

The appellant was sentenced to an extended sentence of 7 years and four months comprising a custodial term of five years and four months and an extended licence period of two years. He pleaded guilty to possession of an imitation firearm with intent to cause fear of violence. After his partner had left him he sent threatening messages and videos of him holding a shotgun.

The defence submitted, on appeal, that the probation officer and judge, in assessing dangerousness failed to remember that the imposition of an extended sentence does not follow automatically from a finding of dangerousness. 

Held: it was unfortunate that the judge’s sentencing remarks, ending with the words “the risk that you in my view so clearly still pose to her”, did not go on to add something along the lines of “the risk is such that in my view it cannot adequately be met by the imposition of a determinate sentence.” The missing words were clearly implicit, and the judge was entitled to form the view that a determinate sentence would be inadequate protection. The starting point was, however, too high and the custodial term was reduced to 56 months.