Jameson, Re Reference By the Attorney General [2003] EWCA Crim 3011

Case No 2003/04510/A3[2003] EWCA Crim 3011
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday 4 November 2003
Before
LORD JUSTICE POTTERMR JUSTICE CRESSWELLMR JUSTICE LANGLEY
Hearing Hearing date : 23.10.2003
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY GENERAL’S REFERENCE NO.88 OF 2002
(LEON MARK JAMESON)
Mr I Darling appeared on behalf of the Attorney General
Miss K Melly appeared on behalf of the Offender
JUDGMENT
[1]This is an application by the Attorney General for the leave of the Court under s.36 of the Criminal Justice Act 1988 to refer a sentence said to be unduly lenient. We grant leave.[2]The name of the offender is Leon Mark Jameson, aged 22 years, having been born on 23 May 1981. At the time of the offences he was 21 years old.[3]The offender faced an indictment containing nine counts. Counts 1, 3, 4, 5, 7 and 8 alleged Theft. Counts 2 and 9 alleged Robbery and Count 6 was an allegation of Attempted Robbery. On 15 July 2003 the offender appeared in the Hull Crown Court before Miss Recorder Bond and pleaded guilty to all Counts on the indictment with the exception of Count 5 on which no evidence was offered and a ‘not guilty’ verdict entered. The offender had also pleaded guilty to breaching the requirements of a Community Rehabilitation Order which had been imposed at Hull Crown Court on 20 December 2002 in respect of two offences, namely theft and having an offensive weapon.[4]The offender was sentenced as follows. i) Count 1: Theft of a car – 12 months’ imprisonment. ii) Count 2: Robbery – 30 months’ imprisonment consecutive to Count 1. iii) Count 3: Theft of a till – 12 months’ imprisonment concurrent. iv) Count 4:Theft of a car - 12 months’ imprisonment concurrent. v) Count 6: Attempted Robbery – 12 months’ imprisonment concurrent. vi) Count 7: Theft of a handbag – 12 months’ imprisonment concurrent. vii) Count 8: Theft of a car – 12 months’ imprisonment concurrent. viii) Count 9: Robbery – 30 months’ imprisonment concurrent.[5]In respect of the two previous matters which fell to be resentenced, the offender was sentenced to 12 months’ imprisonment on each to run concurrently rather than consecutively. Thus, he was sentenced to a total of 3 years 6 months imprisonment.[6]In short summary, the offender, assisted by others, embarked on a crime spree of considerable intensity over a two-day period. Eight separate offences were committed in quick succession. They involved theft of two motor vehicles which were in turn used to facilitate the commission of thefts and robberies at small, unprotected retail premises and on vulnerable members of the public. The facts underlying the various counts were as follows.[7]Late on the night of Tuesday 25 March 2003 or very early on the following morning, a Rover Maestro car was stolen from outside its owner’s address. (Count 1)[8]At 7.35pm on Wednesday 26 March, the offender was seen to be driving the same Rover car in which he had a male passenger. It pulled up near an off-licence. Both men got out of the car, leaving the engine running with the headlights switched off. They entered the off-licence. The offender approached the counter and asked the assistant for some cigarettes. As she turned her back, the offender leaned over the counter and grabbed the till. The assistant tried to prevent this and, in the course of doing so, sustained bruising to her arm. She said that the offender looked so determined and aggressive that she decided not to resist him further. The offender got hold of the bottom part of the till containing the cash drawer and he and his accomplice ran from the shop. They got into the car and drove off. The till contained approximately £60 in cash. (Count 2)[9]About 1½ hours later at about 9.00pm, a shop assistant in a fish and chip shop was tidying up. She heard a loud crashing sound from the front counter which she immediately recognised as the till being violently forced from it. She looked up and saw the offender leaning over the counter with his outstretched arms holding the till. He brought the till up to his chest and turned and ran out of the shop. He was seen to run to a waiting Rover Maestro car, the headlights of which had been turned off. The offender jumped into the open passenger door and the car was driven off at speed by an accomplice. The till contained over £100 in cash. (Count 3)[10]Early on the morning of the next day, 27 March 2003, a silver Ford Escort car was stolen from outside its owner’s home address. It had been alarmed and immobilised prior to its theft. (Count 4)[11]At about 8.45am, Christine Cook was cycling along Chanterlands Avenue in Hull when she passed a stationary silver car with at least three occupants. It was in fact the stolen Ford Escort. The car then drove past her. As she turned into Barrington Avenue, there were cars parked on both sides of the road. She was suddenly aware of the silver car being alongside her only inches away to her right. The front passenger door opened and a man’s hand reached out towards her black leather shoulder bag which was wrapped round the handlebars. He was unable to remove the bag but retained hold of it and the victim found herself being pulled along by the speed of the car and no longer in control of her bicycle. Her bicycle collided with a parked vehicle and she fell sideways, at which point the man let go of the bag and the car sped off. She fell into the roadway and slid along the tarmac, suffering a dull intense pain in her right cheek, the right side of the bridge of her nose and the right-hand side of her head. She suffered bruising, rather than bony injury, but was very frightened, not least because she was a sufferer from osteoporosis. The offender’s palm print was later found on the driver’s rear view mirror. (Count 6)[12]Only minutes later, Julie Hossack had parked her car in a car park at Ellerburn Avenue, Hull at approximately 9.00am. She was sitting in the car with her handbag on the front passenger seat when she saw the offender walking towards her. He walked past the front of the car out of her sight, but then came back towards the car and she thought from his actions that he was asking her for the time. She told him and he appeared to walk off again. About a minute later she was aware of the front passenger door being opened and she saw the offender reach in and take the bag. He ran off. She gave chase and, as she turned the corner, she saw the silver Ford car driving off at speed. A witness saw what occurred and recognised the offender, whose mother she knew. (Count 7)[13]That same morning a white Ford Orion belonging to a Mr David Owston was stolen. It had been secured with a steering lock on the wheel prior to its theft. (Count 8)[14]At about 1.30pm on the same day, staff were working in a newsagent’s shop at 262 Greenwood Avenue, Hull. A female assistant noticed a man going up to the shop window and saying to another man “They have got some here.” The offender then entered the shop and walked to the counter. The second man entered the store but remained at the doorway, holding it open. The offender selected some chewing gum and the assistant scanned it through the till. The second man walked up to the counter and told the offender to get him some cigarettes. As the assistant turned to get the cigarettes, the offender grabbed for the till. He was unsuccessful and made a grab for a second till next to it. A struggle ensued over the till. During the struggle, the second man grabbed a large quantity of scratch cards from a nearby display and left the shop. Eventually the offender managed to grab the cash draw containing £360 and left the shop. The robbery was captured on CCTV and the offender was identified. (Count 9)[15]On 1 April 2003, following a search of an address on a north Hull estate, the offender was arrested. He was later interviewed about the offences and made no comment to all questions asked of him. However, he subsequently decided to plead guilty to the eight offences we have described.[16]Counsel for the Attorney General has submitted that the following aggravating features are present in respect of these offences. First, they formed part of a concerted course of criminality, albeit over a short time period. Second, motor vehicles were stolen to facilitate the commission of the robberies, indicating a degree of premeditation and planning. Third, the offender appeared specifically to have targeted vulnerable premises and vulnerable victims. Fourth, the execution of the attempted robbery, the subject of count 6, while not involving use of a weapon, showed a total disregard for the safety of the victim who could have been killed or sustained serious injury as a result of being dragged along on her bicycle by the moving motor vehicle. Fifth, the offences were committed during the currency of an 18-month Community Rehabilitation Order with conditions imposed only three months earlier. The offences in question were theft from a car after smashing its window, and possession of a lock knife which was produced and brandished in the course of an argument with two others. Finally, the offender has a bad record for offences of this nature and has served a number of short custodial sentences since he was 16 years of age. His longest custodial sentence had been one of 9 months imposed in October 2001 for two offences of theft and one of handling stolen goods committed while on bail.[17]On the other hand, the following mitigating features appear to be present. First, the offender pleaded guilty, indicating an early intention to plead guilty to all of the counts mentioned save count 6. Second, little or no violence was used in the commission of the robberies. There was however an element of recklessness and considerable danger in the circumstances relating to count 6. Finally, no weapons were carried and there were no significant attempts to disguise the appearance of the offender or his accomplices.[18]Counsel for the Attorney General has submitted that, in passing sentence, the judge must have paid insufficient attention to the aggravating features which we have outlined. He submits that the sentence imposed was one which might have been appropriate to a single count of robbery without undue violence or use of weapons but that, in the case of a concerted course of conduct involving a number of offences by an offender with the bad criminal record of this offender, and committed only a few months into an 18-month Community Rehabilitation Order, the sentence was unduly lenient. He submits that the judge was correct to impose sentences on Counts 2 - 9 which were consecutive to the original theft of the Rover Maestro which appears to have triggered and facilitated the two-day course of conduct which followed. However, he submits that the sentences imposed for the totality of the subsequent offences (which were all concurrent and none of which exceeded 30 months’ imprisonment), were inadequate. In particular, he submits that the attempted robbery, the subject of Count 6 was the most serious and dangerous of the offences and merited substantially more than 12 months’ imprisonment concurrent. Counsel submits that, in the light of the dangerous course of conduct, the frightening effect of the injury upon the victim and the avoidance of serious injury only by chance, a sentence of 4 years’ imprisonment on Count 6 would have been appropriate. Finally, he submits that the sentence of 12 months’ imprisonment concurrent for a breach of the requirements of the Community Rehabilitation Order was wrong in principle and that a consecutive sentence should have been imposed in that respect, so as to yield a total period of 6 years’ imprisonment.[19]The Attorney General has referred us to four particular authorities as follows.[20]In Attorney General’s Reference No.9 of 1989 (Steven Lloyd Lacy) [1990] 12 Crim App R (S) 7, a sentence of 30 months’ imprisonment imposed on a defendant who pleaded guilty having participated in a sub-post office robbery, was increased to one of 5 years without reference being made to a discount for double jeopardy. The offender had no previous convictions, but the level of violence in the robbery was high and the court emphasised the need, following Attorney General’s Reference No.2 of 1989 (Darren Mark Major) [1989] 11 Crim App R (S) 481, to incorporate a deterrent element in respect of robberies which target small shops particularly susceptible to attack.[21]In Attorney General’s Reference No.58 of 1996 (Karl David Jones) [1997] 2 Crim App R (S) 233, the court stated that the normal level of sentence in respect of robbery or attempted robbery of an off-licence was 3-7 years, depending upon the mitigating and aggravating features and, in particular, the level of violence used. That case was not dissimilar from the one before us in the sense that the offender, aged 22, had a fairly similar criminal record to the offender in this case. The level of violence involved was somewhat greater than in the instant case but, whereas the defendant also pleaded to four other counts of theft, there was no other charge of robbery involved. The court made clear that the sentence of 18 months imposed by the judge wholly failed to reflect the gravity of the offence and substituted a sentence of 3½ years after taking into account double jeopardy and the imminence of the offender’s release. It did not make clear what it considered would have been the appropriate sentence absent those considerations, but we surmise it would have been one of 4½-5 years.[22]In Attorney General’s Reference Nos.4 and 7 of 2000 (Adrian Michael Lobban, Christopher Sawyers; Steven James Cue) [2002] Crim App R (S) 345, this court gave general guidance in respect of the prevalent crime of street robbery of mobile telephones, in respect of which a robust sentencing policy was advocated within the bracket 18 months to 5 years, with an upper limit of 3 years where no weapon was involved. In that case the position of the offender Sawyers was most readily comparable to that of the offender in this case. The court indicated an appropriate level of sentence of 4 years in the case of a 19 year-old offender who had pleaded guilty to three charges of robbery and two of theft.[23]Finally, we were referred to an authority on which the Attorney General has placed particular reliance as justifying a substantially more severe approach than that indicated in the authorities so far cited. In R v Greenland [2003] 1 Crim App R (S) 375, EWCA Crim 1748, this court upheld a sentence of 6 years’ imprisonment imposed upon the perpetrator of a violent handbag robbery by a defendant who had lain in wait for a woman victim walking home across a common. He appears to have had previous convictions for robbery in the course of a criminal career comparable to, but somewhat longer and more serious than, this offender and with a longer history of drug abuse. The major distinguishing feature would appear to be the high level of violence used, the victim having been repeatedly punched in the face when she resisted. The court observed:
“This kind of street robbery is prevalent and becoming increasingly so. Such robberies are serious and this is a particularly serious example. People are entitled to be safe and feel safe on the streets and to know that the courts will do their best to ensure their safety. This kind of conduct merits condign punishment.”
[24]We would certainly endorse that final observation. However, we note that, in this case, the method of the offender has been essentially one in which violence has been avoided or minimised and we do not derive particular assistance from the approach in Greenland, where the court was in any event concerned with the question whether 6 years was “manifestly excessive”, as opposed to the Attorney General’s references to which we have earlier referred and which afford better grounds for comparison.[25]Having carefully considered the matter, we are of the view that the offender was substantially under-sentenced in this case. We accept the submission for the Attorney General that, bearing in mind the principle of totality and the breach of the requirements of the Community Rehabilitation Order, an appropriate total sentence upon a plea of guilty was one of 6 years’ imprisonment. However, bearing in mind the element of double jeopardy we think it appropriate to substitute a total sentence of 5 years’ imprisonment. To achieve that result, we quash the sentence of 12 months’ imprisonment concurrent imposed upon Count 6 and substitute therefor a sentence of 4 years’ imprisonment to run consecutively to the 12 months’ sentence on Count 1, but concurrently with the other sentences.