ATTORNEY GENERAL'S REFERENCE Nos. 4 & 7 of 2002 v UNDER SECTION 36 OF [2002] EWCA Crim 127

IN THE COURT OF APPEAL
CRIMINAL DIVISION
[2002] EWCA Crim 127Case No No. 2002/01148/R2 & 2002/00295/R2Venue Royal Courts of Justice, The Strand, London WC2
Between
ATTORNEY GENERAL'S REFERENCE Nos. 4 & 7 of 2002UNDER SECTION 36 OFTHE CRIMINAL JUSTICE ACT 1988REGINAADRIAN MICHAEL LOBBANCHRISTOPHER SAWYERSREGINASTEVEN JAMES Q
Before
Lord Chief Justice of EnglandLord Woolf of BarnesMr Justice AikensMr Justice PitchfordAPPEARANCES:2002/00114/R2 & 2002/00295/R2MR O POWNALL appeared on behalf of the ATTORNEY GENERALMR M SMITH appeared on behalf of THE OFFENDER ADRIAN MICHAEL LOBBANMR M J DUDLEY appeared on behalf of THE OFFENDER CHRISTOPHER SAWYERS2001/04543/X3MR M COLLINS appeared on behalf of THE APPLICANT STEVEN JAMES QDate 29 January 2002
[1]Tuesday 29 January 2002 THE LORD CHIEF JUSTICE: These three applications were listed together. There are two applications by the Attorney General and one application by an offender who has been convicted who wishes to appeal against his conviction and sentence and whose application was refused. They all relate to robberies in public places and involve the theft of mobile telephones and small amounts of money. They are offences of a particularly worrying nature. They are worrying because of the effect which they have on the public, the effect which they have on the victims in particular, and on the fact that they undermine the criminal justice system. Frequently they involve offences against victims who are either young in age, as is the position with these three applications, or elderly people -- people in both categories who are vulnerable because of their age.[2]In giving this judgment we are not seeking to set new guidelines. If we were intending to do so, we would have sought the advice of the Sentencing Advisory Panel before giving this judgment. Instead, we are seeking to draw together the principles which are already clearly established by the reported decisions of this court.Before coming to the facts of the individual applications, we wish to set out certain information which has been obtained by research conducted on behalf of the Home Office. It is published as Study 235, dated December 2001, entitled "Mobile Phone Theft". The research contains certain findings as to the level of mobile phone thefts and robberies and identifies a marked increase in the incidents of such offences. According to the research, the position today is that on average 70 per cent of United Kingdom adults own or use a mobile phone. Ownership among younger people is even higher. A source of information on which the study relied was that contained in the British Crime Survey which estimated that there are about 470,000 phone thefts against those aged 16 or over (including attempts) in the year 2000, originating from a number of different offences, including robbery. A school survey asked 15,000 11 to 15 year olds whether they had had a phone stolen in the last year. Grossed-up figures suggested that there were 550 phone thefts against this group between mid-2000 and mid-2001. Twelve per cent of those asked said that they had been victimised at least once. The risk of phone theft for those in the ages between 11 and 16 is five times higher than that for adults. The results show a substantial growth involving the theft of telephones. Figures from six police forces suggest that the number of recorded phone thefts has at least doubled between 1998/99 and 2000/01. There was an increase in the proportion of robberies involving telephones from about 8 per cent in 1998/99 (an estimated 5,500 phone robberies), to about 28 per cent in 2000/01 (an estimated 26,300 phone robberies). No doubt part of the increase was due to the greater phone ownership during that period.[3]The information available points in the direction of telephones having played a part in the rise in robberies. Those under 18 constitute nearly half (48 per cent) of all victims, with a peak age at 15 and 16.[4]Faced with that background the courts have no alternative but to adopt a robust sentencing policy towards those who commit these offences. Those who do so must understand that they will be punished severely. Custodial sentences will be the only option available to the courts when these offences are committed, unless there are exceptional circumstances. That will apply irrespective of the age of the offender and irrespective of whether the offender has previous convictions. However, both those factors are very important when a judge comes to decide on the length of sentence.[5]In his submissions on behalf of the Attorney General, Mr Pownall said that the bracket of sentencing which the authorities reveal for offenders of the sort we have been describing is 18 months to five years. We will look shortly at the some of the authorities to which we were referred. We agree with what Mr Pownall said, subject to this. If the offences are committed by an offender who has a number of previous convictions and if there is a substantial degree of violence, or if there is a particularly large number of offences committed, the five year upper limit may not be appropriate.[6]Mr Pownall also indicated that the authorities suggest that the upper limit is three years where no weapon is used. Again we agree, subject to the qualifications which we have already expressed in relation to the five year figure.[7]A factor which, in our judgment, is of importance is whether a team of offenders is involved. The fact that there are a number of offenders will make the offence more intimidating. From an examination of the authorities to which we were referred, we conclude that prior to 1995 they tend to indicate a level of sentencing which is not sufficiently severe. There has been an increase in the incidents of robbery of the sort to which we have referred. The need to deter those who commit offences of this nature has increased because of their prevalence.[8]Having said that, we urge the manufacturers and those who supply the means by which mobile telephones are used to make strenuous efforts to make the object of these offences more difficult to achieve. We recognise that efforts are already being made, but we hope that even greater efforts could be made which would reduce the attractiveness to dishonest people of offences of this nature.[9]In two of the cases which are before us the Attorney General applies under section 36 of the Criminal Justice Act 1988 for leave to refer the sentences to this court for review because he regards them as being unduly lenient. We grant leave. We propose to follow the usual practice of this court of taking into account that the sentence is being increased in determining the sentence the offenders are to serve. In other words, we propose to make an allowance for double jeopardy.[10]The first case to which it is necessary to make reference is the decision of his court in Attorney General's Reference No 6 of 1994 ( R v Christopher Lee ) (1995) 16 Cr App R(S) 343. In that case a community service order had been imposed for robbery by demanding money from a youth in a street and threatening to use a knife. The sentence was varied to 18 months' imprisonment. The offender together with an accomplice approached an 18 year old youth who was waiting for a bus. They demanded money, threatened to use a knife and made him empty his pockets. The victim handed over his wallet containing about £19 in cash and his pay cheque for £90.50. The offender and his accomplice were arrested and thereafter sentenced to a community service order for 120 hours. The Attorney General asked the court to increase that sentence. The court looked at a number of previous decisions of this court and took them into account in deciding that the sentence was unduly lenient and had to be increased, as indicated, to eighteen months' imprisonment. Lord Taylor CJ indicated in the judgment of the court that offences of this kind required an element of deterrence in the sentence and that even a first offender must expect a period of custody for robbery of this kind in a public place. The decision makes it clear that a substantial period of custody was the norm. The sentencer had been influenced by the fact that the offender had played a lesser part in the offence than his co-defendant, and his good character. These factors did not in the view of the court justify a departure from the norm so striking as to justify a non-custodial sentence. It was because of this that the sentence was treated as unduly lenient.[11]The next case to which we refer is the decision of this court in Attorney General's Reference No 73 of 1999 ( R v Mark Charles ) [2000] 2 Cr App R(S) 209. The court was presided over by Lord Bingham CJ. The offender, who was aged 23, pleaded guilty to robbery. He was one of a group of several young men who encountered two boys, one aged 16, shortly after midnight. The offender and two others approached the boys and demanded money from them. The offender searched the pockets of one of the boys and found a mobile telephone. The offender's accomplice attacked the boy and subsequently demanded a ring which was on his finger. The accomplice punched him several further times and he fell over a wall. The offender joined in in punching the victim and eventually the victim surrendered the ring and a pair of sunglasses. The offender and the accomplices were arrested shortly afterwards. The sentencer accepted that the accomplice, who was 16, was the main aggressor, although the offender had taken a full part in the robbery. The sentencer made a supervision order in respect of the accomplice on the grounds which were personal to him. In order to avoid a sense of injustice on the part of the offender, the sentencer imposed a community service order on him. As a result of the Attorney General's reference the court emphasised that robberies committed in streets made members of the public afraid to walk out alone; that such offences required an element of deterrence; and that even in the case of a first offence a custodial sentence must be expected. Furthermore, the court said that the mitigation available for one offender did not entitle another offender to take advantage of it. There were strong and special factors which indicated an unusual sentence in the case of the co-defendant. The offender was not in the first flush of youth. He had played a full part in a frightening robbery and he had no excuse to advance to explain or justify his behaviour. Allowing for his good character, his plea and personal mitigation relating to his family circumstances, the judge's sentence fell outside the range of sentences which were reasonably open to him. On conviction after a trial the offence would have earned a sentence of three years. On a plea of guilty the appropriate sentence was two years' imprisonment. The court went on to allow an element for double jeopardy and imposed a sentence of 18 months' imprisonment.[12]The next case to which we refer is R v Bol Joseph [2001] 2 Cr App R(S) 398. In that case three years' detention was upheld in the case of an appellant aged 14 at the time he committed the offence of attempting to rob a man in the street. The appellant and a group of others, including a young woman, approached a man who was on his way home from work, carrying a lap-top computer. The young woman asked the man for money, which he refused to give her. She abused him and flicked his spectacles off, causing them to fall to the ground. The appellant then went up to the man, punched him on the face and head-butted him. As he did so, he told the others to take the man's wallet and computer. The appellant produced a knife with a four-inch blade and the man ran off. The appellant and one of the others chased him and forced him to the ground. The man managed to hold on to his computer and ran away. The court pointed out that they had to look at the principles involved in sentencing in a case of this kind. They recognised that when sentencing an offender aged 14 or 15 the appropriate sentence would always be shorter than that which would be appropriate for an adult. A balance was required between the youth of an offender, deterrence, and the effect of a long sentence on the perception of the offender. The court also considered the gravity of the offence which had been committed. A further consideration was that attempted offences usually carried a lesser sentence than that imposed for the full offence. This was not a potent factor because of the circumstances. The important features of the case were that the appellant was convicted after a trial; the robbery was committed at night; the appellant was with others and took a prime role in the attempted robbery. The court concluded that the sentence was not manifestly excessive or wrong in principle.[13]There is one further case to which we refer. In R v Neil Gordon and John Foster [2001] 1 Cr App R(S) 200 a sentence of five years' imprisonment was upheld for two men who robbed a youth in the street with violence. The appellants pleaded guilty to robbery and assault occasioning actual bodily harm. The appellants accosted a young man who was walking in the street late at night. The victim was grabbed by the throat, pinned against the wall and ordered to empty his pockets. He was then punched on the head and marched to a cash machine where his card was used, but it was found that there was only £1.70 in the account. The victim was then punched and head-butted. The court was of the view that this was a cowardly attack on a person who was alone who was put into a considerable state of fear. He was subject to further violence when it was discovered that he had insufficient in his account, and that the sentence of five years' imprisonment was not excessive.[14]We turn to the present applications. The applicant Steven James Q was born on 18 February 1984 and was 17 at the time of the offence which was committed in March 2001. On 10 July 2001, at the Crown Court at Bradford, before His Honour Judge Hunt, the applicant was convicted of robbery. On 25 July 2001 he was sentenced to four years' detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. He now renews his application for leave to appeal against sentence. We grant him leave to appeal.[15]The facts were that at 5pm on 16 March 2001, the victim, Peter Green, a 14 year old school boy was engaged on his paper round. He met a friend. They showed each other their mobile telephones. His friend left. The victim noticed a car stop nearby. The appellant got out of the car. As he was doing so, the appellant saw the driver of the car pass him a claw hammer. The appellant approached the victim, holding the hammer above his head. He was wearing surgical-type gloves. He said, "Give me your fucking phone now." The frightened victim handed over his telephone which was worth about £80. The appellant denied the offence, but was found guilty.[16]The obvious mitigating feature were his age and the fact that, although the episode was extremely frightening, no actual violence was used as opposed to being threatened. Aggravating features include the fact that the victim was 14 and in the course of his employment as a paper boy, an occupation which makes those carrying it out vulnerable; the fact that there was the brandishing of the claw hammer in the course of the robbery; and the fact that the offence is prevalent.[17]In his sentencing remarks the judge went through each of the aggravating and mitigating features. In particular he said that robbery of mobile telephones from children by boys not much older than themselves is rife. The message needs to go out that those who do it will serve a custodial sentence of significant or substantial length. The appellant was already a persistent offender, as the judge pointed out, and he was on bail at the time of the offence. In the judge's view he had shown no remorse. The judge went on to say:
"I am afraid, as I had said already, the conclusion I have reached is that a deterrent sentence here is demanded by these very unpleasant facts. I have also come to the conclusion that this a case where I should use my powers to detain you under section 91 of the Powers of Criminal Courts (Sentencing) Act."
[18]We have no doubt that the judge was absolutely right. We also have no doubt that the this was a case which warranted a substantial sentence. However, seeking to place this case within the other cases of this sort of which we have heard, although we regard the judge as right in imposing a deterrent sentence, we consider that the sentence was somewhat too long. We have come to the conclusion that in all the circumstances it would be appropriate to reduce the sentence to three years' detention. But we make it clear that we would not have done so if any violence had in fact been used, or if there had been more than one offence, or if the offender had been older.[19]We turn next to the case of the offender Adrian Michael Lobban. He was 19 at the time of the offence, having been born on 11 May 1982. On 16 November 2001, he was convicted of offences of robbery and assault with intent to rob. After reports had been obtained, on 7 December 2001 he was sentenced to concurrent terms of six months' detention in a young offender institution. At the time of the offence he was 18 years of age.[20]The offences in summary involved the offender together with two accomplices robbing at knife-point two young men of a mobile telephone. One of the victims received a small wound to his hand. The offence occurred in these circumstances. At about 5pm on 26 March, two 16 year old victims were walking towards Oldham town centre when they were confronted by the offender and two of his associates. The offender grabbed one, Patrick Jennings, and demanded his mobile telephone. He threatened to stab the victim. He produced a knife and pointed it at the victim's chest. The offender stole his telephone and a bus pass. The robbers then turned their attention to the second victim, Ryan Harley. One of the accomplices asked for jewellery and a mobile telephone, and the offender threatened to stab him. He jabbed at the victim's hand in an effort to persuade him to take it out of his pocket, causing a small cut to the back of it. The offender and one of the group each head-butted Ryan Harley. At that point a member of the public intervened and the second robbery was abandoned.[21]When he was arrested the offender denied being present at the time of the offence, but he subsequently was identified by both victims. He was a young man of previous good character.[22]The Attorney General relied upon the following features as aggravating the offence: first, the offences were committed by a group of youths of which the offender was the ringleader; second, the offender was armed with a knife; third, not only were threats made to use the knife, but physical injury was also actually inflicted; fourth, the prevalence of the offences.[23]On the other hand, the Attorney General recognised that there were mitigating features, namely the good character of the offender and the offender's age.[24]We agree with the Attorney General that concurrent sentences of six months' detention in a young offender institution for the two offences here was undoubtedly unduly lenient. Bearing in mind the good character and age of the offender, the appropriate periods of detention in our judgment are concurrent terms of four years' detention. Because of the element of double jeopardy, we reduce the four years to a period of three-and-a-half years. We will invite the assistance of counsel in due course as to when that sentence should begin.[25]The third offender is Christopher Sawyers who is 19 years of age, having been born on 24 May 1982. He was charged on an indictment containing nine counts comprising four allegations of robbery and five of theft. A co-accused was jointly charged in respect of the three theft allegations. The offender initially appeared before the magistrates and then before the Wolverhampton Crown Court. On 3 November 3001, he pleaded guilty to three allegations of robbery and two allegations of theft. On 14 December he was sentenced to a community rehabilitation order for a period of eighteen months, combined with a 60 hour community punishment order.[26]The brief facts are as follows. As to the first robbery, at about 4.50pm on Monday 28 May 2001, a young man named Thoor aged 14 was in Victoria Park, Smethwick with five friends. The offender approached and asked one of the group for a cigarette. He grabbed Thoor by the collar and falsely accused him of bullying his cousin. The offender dragged him to a nearby shopping precinct, pushed him against the wall and searched him. The offender threatened to beat Thoor up if he did not hand over his telephone. He pushed him to the floor. He then called out to his friends, "Quick, run, I have just raised this".[27]The offender was on bail for shoplifting at the time of that offence. The offender was again arrested on 24 June for an offence of theft of a mobile telephone and jewellery which had taken place the previous night. He was charged with common assault. He was also interviewed about the offence which had occurred on 28 May. He denied any involvement in it. He appeared before the magistrates' court on 25 June when he was remanded in custody in respect of the 23 June offence. He was then placed on police bail for the 28 May offence and required to attend an identification parade. He failed to attend.[28]We turn to the third count alleging robbery, which was also committed on bail. At 11.40pm on Tuesday 24 July, a young man was walking along the Devonshire Road, having just left his girlfriend. He saw the offender together with another youth sitting on a garden wall opposite him. The other youth approached him and asked if could borrow his telephone as he had just been mugged. The victim did not believe him and said that he did not have a telephone. The offender walked across the road, pulled up his top so that it covered his nose and mouth and then assisted by his co-accused herded the victim against a fence. The offender told him not to be stupid and frisked him. He was told not to look at them. They took the victim's mobile telephone and unclipped his watch. The other youth took his gold chain. The three items were worth £175. The victim was frightened and intimidated by the action. He felt that if he resisted they would use force.[29]Count 4 was an offence of robbery which took place on 25 July 2001. On this occasion an 8 year old student left the kebab shop in Smethwick where he was working. The offender was with five youths near a car. He approached the young student who was called Parker. The offender accused Parker of serving him a small portion of chips earlier that evening. Mr Parker tried to continue walking home, but his path was blocked. He was accused of stealing the offender's cousin's Nokia telephone. He was also told to walk towards a white youth who was standing about 20 yards ahead. The offender said that the stolen telephone was a Nokia and that if Mr Parker had one, that would prove that he was the thief. Mr Parker took out his telephone to show that it was a different type of Nokia. The offender tried to grab it off him. The other youth ran off with the telephone. The offender then asked for some money for a bus fare and said that if Mr Parker gave him the money, he would receive the telephone back. He threatened to beat up Mr Parker if he did not give him £20. He was given some money and the offender ran off and did not return.[30]It is unnecessary to particularise the offences of theft with which the offender was also charged.[31]The Attorney General relied on the following aggravating circumstances: first, the offences involved cowardly intimidation of three victims, one of whom was only 14; second, the offender was involved with another man at night; third, the offender was on bail when each offence was committed; fourth, two of the offences were committed after he had been released from a period of two weeks in custody on remand; and finally, the offender had three previous conviction, including one for stealing a bicycle when he pushed the owner and scuffled with him.[32]The Attorney General acknowledges the following mitigating circumstances: first, the offender pleaded guilty; second, the victim in count 1 did not suffer any injury; third, no actual force was used in two other counts; fourth, the offender had never previously served a period of detention; and finally, he had already spent 93 days in custody.[33]A question arose during argument as to whether it was inappropriate in this situation to take into account the fact that the judge who was responsible for sentencing was not aware of the extent to which the offences were committed on bail. This was a case where the sentence, even without that factor, was undoubtedly unduly lenient. Mr Pownall, on behalf of the Attorney General, said that in order to achieve fairness we should not look at matters of which the judge who passed the unduly lenient sentence was not aware. We disagree. We consider that it would be unfortunate, once we decided to intervene, if we were to deal with an offender on other than the actual facts. That is what we propose to do.[34]We take into account Mr Dudley's submissions on behalf of the offender Sawyers that he had already effectively served six months' detention. We also take into account the other mitigating factors, including the fact that this is his first sentence of custody. Nonetheless, we come to the conclusion that four years' detention would be the starting point for these offences. We reduce that to three years' detention for the offender's plea of guilty, and then make a further reduction to two-and-a-half years because of the principle of double jeopardy.[35]We will deal with when the sentences should commence after we have heard from counsel. What we have in mind in seeking assistance is the fact that the Criminal Justice Act 1988, Schedule 3, paragraph 10, provides that the term of any sentence passed by the Court of Appeal under section 36 shall, unless they otherwise direct, begin from the time it would have begun to run if passed in the proceedings to which the reference was made.[36]We also refer to section 67 of the Criminal Justice Act 1967: (1) the length of any sentence of imprisonment imposed on an offender by a court shall be treated as reduced by any relevant period. "Any relevant period" means (a) any period during which the offender was in police detention in connection with the offence for which the sentence was passed; or (b) any period during which he was in custody (i) by reason only of having been committed to custody by an order of a court made in connection with any proceedings relating to that sentence or to offences for which it was passed. MR POWNALL: On behalf of the Attorney General we would not seek to address argument to the court that the sentence should commence today. It should commence at the time when it would otherwise commence when passed at the Crown Court. THE LORD CHIEF JUSTICE: This is in the case of Sawyers? MR POWNALL: In both cases. I am conscious of the fact that Sawyers' counsel is present, but counsel on behalf of Lobban is not present. I would anticipate that he would advance a similar argument. MR DUDLEY: My Lord, I would ask that the sentence commence when it would have done had it been imposed by the Crown Court. THE LORD CHIEF JUSTICE: Would that take account of the period he has been in custody? MR DUDLEY: It would, yes. THE LORD CHIEF JUSTICE: Well, on that basis that would be an appropriate course to adopt. We will adopt that course. We are grateful to all counsel for their assistance.

Cited in 7 later judgments