Attorney General's Reference No 38 and 39 of 2004 [2004] EWCA Crim 1820

No: 200401897 A3 AND 200401899 A3[2004] EWCA Crim 1820
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 1 July 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE KEENE
MR JUSTICE MITTING
SIR JOHN ALLIOTT
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NOS 038 and 039 of 2004
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
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MS B CHEEMA appeared on behalf of the ATTORNEY GENERAL
MR D MAUNDER and MR G NELSON appeared on behalf of the OFFENDERS
J U D G M E N T

LORD JUSTICE KEENE:

These

[1]are applications under section 36 of the Criminal Justice Act 1998 by Her Majesty's Attorney General for leave to refer two sentences to this court because they appear to him to be unduly lenient. We grant leave and treat this as being the hearing of the references.[2]On 5 March 2004 Aaron Randall and Troy Donaghue were each sentenced at the Crown Court at Gloucester by His Honour Judge Tabor QC to three years' imprisonment for robbery. Randall was also sentenced to four months consecutive for failing to surrender to bail. Both offenders had previously pleaded guilty to the robbery charge; Donaghue on 20 November 2003 and Randall on 13 February 2004.[3]The robbery, in which both offenders and a third man were involved, took place at night time at about 1 am on 17 July 2003. The three men went to the home of the victim, a 57-year old frail man, whom they knew to have learning difficulties and to be vulnerable. He was someone who needed help in carrying out such basic activities as washing and shaving. He had been the target of local children pestering him for money, and on occasions he had complied with those requests. One of the children to whom the victim had given money was Randall's stepson, aged ten, who was apparently given £10 by the victim the day before this offence.[4]The men called at the house, the victim was woken and he opened the door. The three men confronted him and he was pushed backwards into the hallway. The men entered and the victim was restrained by Donaghue and punched in the face. At least one of the men demanded money and the victim was asked where it was. He replied that he had money in an envelope upstairs. There was approximately £100 in cash in one of the upstairs rooms. The money was the totality of the victim's savings from his benefits. Randall at least went upstairs and took the money. All three men then left. A neighbour heard the noise and the police were called. In due course the men were found hiding in a hedge. The victim suffered factures to the right cheek bone and the eye socket.[5]At interview all three men made no comment. The victim was incapable of being a witness on an identification parade and his evidence was video-taped. The victim's blood was found on clothing attributed to both offenders. Randall's finger-prints were also found on the inside of the envelope upstairs in the victim's house which had contained the money.[6]At a further interview Randall said that he had been to the victim's house previously because he wanted to know why the victim had given his stepson money. There was a suggestion in the interview that the offender was concerned lest the victim be intent on sexually abusing the boy. This suggestion was subsequently withdrawn because both offenders recognised that there was no basis for it. Both offenders were released on bail.[7]During the time in which the case was making its way to the Crown Court, Randall breached his bail. He was at large between 8 September 2003 and 3 February 2004. Both offenders subsequently pleaded guilty at their respective preliminary hearings at the Crown Court. They both claimed to have been heavily drunk at the time of the offence.[8]Randall is aged 21. He has a number of previous convictions, mainly for burglary, theft and motoring offences. He has been made the subject of supervision orders, fined and sentenced to youth custody. His longest previous sentence was nine months imposed in November 1999 for a burglary committed on bail. Donaghue is aged 39. He has a substantial criminal record with over 100 previous convictions, mostly for burglary and theft and a number of minor offences. He has received several custodial sentences, the longest being a term of three years' imprisonment passed in 1995.[9]In sentencing both offenders, the learned

judge said:

"You confronted a man at his own doorstep who was especially vulnerable and frail and you both knew that. You had another man with you. You used gratuitous and quite unnecessary violence between you and then went into his house and rifled through his possessions and stole his money, and then produced an excuse that it was something to do with passing £10 to a child."
The judge went on to stress the pleas of guilty before passing the three year sentences of imprisonment for robbery.[10]Some of those matters mentioned by the judge are among the aggravating features to which the Attorney General now refers: the targeting of a vulnerable and frail man known to the offenders to be such; the fact that the attack took place in his own home; the use of gratuitous violence; the fact that three men were involved in a group; and the rifling through of the victim's possessions, although there is some dispute as the to accuracy of that last item. In our view it makes no difference to the outcome of the case.[11]Ms Cheema, who appears on behalf of the Attorney General, emphasises certain aggravating matters not mentioned in the court below in the passage to which I have referred. Thus, the offence was committed at night time; serious injury was caused to the victim; and an element of vigilante behaviour attached to the offence in that both these offenders accepted that at the time of the offence they attributed unsavoury motives to the victim's actions towards children. Moreover, both men had considerable previous convictions. Our attention is drawn also to the pre-sentence reports which indicate that both offenders sought to minimise their blameworthiness and revealed no sense of remorse.[12]This court has been referred on behalf of the Attorney General to a number of authorities. The earliest in time is the Attorney General's Reference Nos 32 and 33 of 1995 (Pegg and Martin) [1996] 2 Cr App R (S) 346. In that case the then Lord Chief Justice, Lord Taylor, giving the judgment of the court said at page 350:
"We have had drawn to our attention a number of cases where attacks have been made on elderly victims. Counsel have sought to compare and minimise the injuries that were inflicted as against those in other cases. However, the general effect of the decisions to which we were referred is to show that where an elderly victim, living alone, is violently attacked by intruders within the home and is injured the likely sentence will be in double figures. We wish to stress that attacks on elderly people in their own homes are particularly despicable and will be regarded by the court as deserving of severe punishment. Elderly victims living alone are vulnerable, not only because of the lack of assistance but also because of their own weakness and isolation. Any attack on such a person is cowardly and can only be expected to be visited with a very severe punishment indeed."
[13]The attack in that case was more serious, involving the use of a knife, and the injuries suffered were grave. Sentences of between seven and ten years were passed reflecting the element of double jeopardy. Higher sentences would have been passed at first instance.[14]The next authority relied on by the Attorney General is the Attorney General's Reference No 89 of 1999 (Farrow) [2000] 2 Cr App R (S) 382. That case involved a robbery in the home by a single offender. The victim was aged 69 and lived alone. The offender forced his way into the house, threatened the victim with a knife and demanded money. He then punched the victim to the floor, applied pressure to his neck and then pulled some cable around the neck until the victim lost consciousness. £120 and a souvenir coin were taken. There was no plea of guilty. This court took the view that the sentence for this offence at first instance should have been one of 10 years' imprisonment. That was reduced to allow for double jeopardy to a term of eight years' imprisonment.[15]Finally Ms Cheema refers us to the Attorney General's Reference 48 of 2000 (Johnson) [2001] 1 Cr App R (S) 423. In that case there was a plea of guilty to robbery. It was an offence committed by a single offender who went to a flat occupied by man of 79 who suffered from arthritis. The victim was pushed to the floor and punched in the mouth and to the nose. His pockets were searched, as was the flat, and in all £24 was taken. The offender had many previous convictions. This court said that the bracket for such offences on a plea of guilty was between four and seven years' imprisonment. No significant injury had been caused and no facial bruising was found. It seems to this court that the bracket of four to seven years on a plea, referred to in that case, must have reflected that particular factor that the court had in mind of the absence of any significant injury. Given that absence in that case, the plea of guilty and the indications of remorse, the court declined to interfere with the four-year sentence.[16]In the light of those authorities, it is submitted on behalf of the Attorney General that the sentence in this case on each offender failed to mark adequately the gravity of the offence and aggravating features present. It is said that the judge gave too much credit for the guilty plea in spite of the fact that it was entered in the face of overwhelming evidence, particularly forensic evidence, and was accompanied by little remorse. It is also contended that the learned judge should have passed a deterrent sentence which reflected the need to protect vulnerable members of society from attack in their own homes. For those reasons, the submission by the Attorney General is that the sentence of three years' imprisonment in both these cases fell outside the proper bracket of sentencing and was unduly lenient in the circumstances of this case.[17]On behalf of the appellant, Randall, Mr Maunder acknowledges that the sentence was a lenient one. But he points out that the judge attached considerable weight to the guilty pleas, which avoided this frail victim having to give evidence at a trial. Reference is also made to the fact that Randall is only 21 and that the initial impetus behind the three men going to the house may not have been to rob. Moreover, no surgical intervention or treatment was needed for the injuries, even though there were factures. It is suggested that the case is no worse than that of Johnson and that the sentence of three years' imprisonment cannot be regarded as unduly lenient.[18]On behalf of Donaghue, Mr Nelson adopts much of what was said by Mr Maunder on behalf of Randall. In particular he emphasises the point about the early guilty plea. He, too, compares this case to that of Johnson and emphasises that, in that case, the offender had previous convictions for robbery, quite unlike Donaghue.[19]We accept that the aggravating features in this case were, principally, the fact that a vulnerable and frail man was targeted; that the offence involved an invasion of his home at night time; that gratuitous violence was used; that significant injury resulted; and that a group of men were involved. We do not attach weight to the fact that surgical intervention or other treatment was not required. Two fractures of the face, in the judgment of this court, do amount to significant injury.[20]We would also emphasise that the real test in these cases is that of vulnerability. The precise age of the victim is of less relevance. It is simply a factor which, along with other factors, may contribute to the victim being a vulnerable person living alone. This court has spelt out on many occasions the gravity with which such attacks in the home on elderly or otherwise vulnerable people will be viewed. Such offences cause widespread anxiety amongst the elderly or vulnerable. We entirely accept the point made by the Attorney General that deterrent sentences in such cases are required.[21]We are in no doubt that the sentences of three years imposed in these two cases were lenient and unduly so. There was no allowance to be made here for good character. We are not impressed by the argument that there may not initially have been an intent to rob. If there was some other intent, which took the three men to the house of this frail and vulnerable man, it seems to this court itself to have been equally reprehensible, of the kind referred to by Ms Cheema in her submissions.[22]Taking into account the authorities to which we have referred, the appropriate sentence at first sentence for this robbery, allowing for the pleas of guilty, would have been in the range of 6½ to 7 years' imprisonment. That reflects the injury caused and the number of men involved, which is a relevant factor. Allowing for double jeopardy, we set aside the sentences for three years on the robbery count, and in each case we shall substitute a sentence of 5½ years' imprisonment. In the case of Randall, that will still have four months' imprisonment for failing to surrender to be added to run consecutively to it. The total, therefore, will be 5½ years' imprisonment in the case of Donaghue and 5 years 10 months in the case of Randall.

Cited in 1 later judgment