Attorney General's Reference No 37 of 2004 [2004] EWCA Crim 1854

Case No 2004/1893/A2[2004] EWCA Crim 1854
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 6 July 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE LATHAM
MR JUSTICE STANLEY BURNTON
MR JUSTICE MITTING
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY- GENERAL's REFERENCE NO 37 OF 2004
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MR E BROWN appeared on behalf of the ATTORNEY GENERAL
MISS A NICHOLSON appeared on behalf of the OFFENDER
J U D G M E N T

LORD JUSTICE LATHAM:

In

[1]this case the Attorney General seeks leave to refer to this court a sentence which was imposed on 8th March 2004 on the offender for an offence of attempted robbery and an offence of possession of a firearm at the time of committing an indictable offence. The sentence imposed by His Honour Judge Lyon on that occasion was a three year community rehabilitation order with a condition that the offender work with a psychiatric counsellor from the young offender team.[2]The facts of the offence for which he was sentenced were that on the afternoon of 15th August 2003 the offender then 20 years old left his mother's house having had an argument with her and having been told not to come back. He was in possession of an air pistol. He went to the Burnsall Walk sub- post office in Wythenshawe, Manchester, which was close to his mother's home. The sub- postmaster, Howard Meadowcroft, was working alone in the post office serving a customer from behind the counter. Once that customer had finished and had left the shop, the offender approached and pushed a plastic carrier bag through the hatch of the screen. He pulled the gun from the waistband of his trousers. This was described as a black Luger- type handgun with a six- inch barrel. The offender told Mr Meadowcroft to fill the bag with money and not to press any alarms. Fearing that he would be shot, Mr Meadowcroft dived below the level of the counter and pressed the panic alarms. This sounded an alarm not only at the alarm company but also inside and outside the shop. The offender fled. Nothing had been stolen.[3]The offender was arrested about two hours or so later in the Woodhouse area of Wythenshawe, his description having been circulated. When first stopped he denied knowledge of the offence but once he was told that there had been closed circuit television coverage of the shop he accepted that he had been responsible. He took the police officers to where he had discarded the gun in some nearby bushes. He also said that he had changed his clothing after the offence. He was picked out at an identification parade on 20th August 2003.[4]The gun was examined by a firearms expert and was found to be a .177 repeating air pistol in working order and had the appearance of a large self- loading handgun. Although it fell into the low to medium power range it was capable of causing a fatal wound and therefore fulfilled the criteria for a lethal barrelled weapon for the purposes of the Firearms Act 1968.[5]The offender had no previous convictions but had been cautioned once for threatening behaviour and once for criminal damage.[6]The sentencing judge had before him a pre- sentence report setting out the fact that his upbringing had been an unhappy one, culminating in his leaving home when he was 16. He thereafter began drinking heavily and had discovered matters relating to the family history which had clearly caused him real distress. The report concluded that the offender could benefit from a community rehabilitation order and considered that the risks of future offending were low.[7]Also before the sentencing judge was a report from a Dr Strickland, a consultant psychiatrist, which stated that at the time of the offence the offender was suffering from a depressive illness which was complicated by his alcohol dependency. The psychiatrist recorded that at the time of the alleged offence the offender was in a state of crisis and concluded that in many ways the offender would appear to have both expected and wanted to be caught as a result of this incident. It is in that context appropriate to comment that he was clearly likely to have been recognised at the time that he committed this offence because of the fact that the post office was the local post office to his mother's home. The conclusion of the psychiatrist was that at the time of the offence the appellant was suffering from a depressive illness which would have clouded his judgment.[8]The judge, who is an extremely experienced judge, was clearly concerned about the right disposal in this case being fully aware, as his sentencing remarks make clear, that this court has repeatedly stated that offences such as these will ordinarily carry not only a custodial sentence but a custodial sentence which is intended both to deter others from committing such offences and to provide protection for those running small businesses such as the one in question. He expressly referred in his sentencing remarks to the fact that a substantial period of imprisonment would normally result and said as follows:
"Frankly, when I first looked at this case that was my intention. I have considered very carefully the following facts; you went into a post office that you were known at. You took no steps to conceal your identity. You were undoubtedly at the time in an abnormal mental condition. Whilst it is clear that you are depressed today, as I am told, and that is a depression I have no doubt consequent from your appearance before my court. It is also clear that you were depressed at the time of the offence. It seems to me that that enables this court to take a wholly exceptional course."
It was in those circumstances that the learned judge sentenced the offender in the way that he did.[9]On behalf of the Attorney General, Mr Brown submits that he fell into error, that the circumstances of this case did not fall into the category of the type of wholly exceptional case in which the ordinary consequences should not follow. He has reminded us of the consistent line of authority which we have already referred to, which essentially starts with the decision of this court in Attorney General's Reference No 2 of 1989 (Darren Major) (1989) 11 Cr.App.R (S) 481 in which this court indicated that a sentence of substantial length had to be imposed particularly where a firearm was involved, as it had been in that case, and imposed a sentence of seven years' imprisonment. That case has formed the basis for the court's decisions in Attorney General's Reference No 9 of 1989 (Lacey) (1990) 12 Cr.App.R (S) 7, and Attorney General's Reference Nos 3, 4, 8, 9, 10 and 11 of 1990 (Dixon and others) (1990) 12 Cr.App.R (S) 479, with particular reference to Reference No 11 which is the case of Duffy. That was a case involving a 20- year- old who entered a post office wearing a mask and carrying a gun which in fact fired blanks. He in fact was successful in obtaining some money and used the gun when he was arrested. It is pointed out by Mr Brown that in the case of Duffy there was a medical report indicating that he (that is the offender) did suffer from some mental abnormality at the time. However, it is clear that when one reads the reports in question that is not a mental illness such as the illness with which we are concerned in the present case, but was a tendency to over- dramatise situations and behave in somewhat bizarre ways. In that case the lower court had imposed the sentence of 18 months for the robbery and 12 months for the firearms offence and those were increased by this court to five years' imprisonment in respect of the robbery and two years' imprisonment to run consecutively in respect of the firearms offence, making seven years' imprisonment in total.[10]Mr Brown has pointed out that the only case which can be found in the authorities in which this court has upheld a non- custodial sentence for an offence of robbery is the Attorney General's Reference No 83 of 2001 (Fidler) [2002] 1 Cr.App.R (S) 588. In that case the offender was a man who suffered from schizophrenia and it was whilst he was being treated for his schizophrenia that he confessed to the psychiatrist by whom he was being treated that he had committed the robbery in question. That was the robbery of a small shop. The offender had held an object which was intended to look like a weapon, had demanded money, some brandy and some cigarettes. The manageress in fact opened the till. He took a handful of coins from it, some cigarettes and a bottle of brandy and left the shop. The psychiatrist was given permission by the offender to report that offence to the authorities and it was in those circumstances that the offender was charged with the offence and then sentenced ultimately to a community rehabilitation order with a requirement to undergo psychiatric treatment. Mr Brown submits that that case can properly be described as one in which there were wholly exceptional circumstances justifying the course that was taken and those characteristics are not met in the present case.[11]It seems to us, however, that that case reinforces that which this court has repeatedly said, that sentencing is not always a mechanical exercise. There must be room for a sentencer in an appropriate case to exercise individual judgment in relation to the particular facts before him in order to do justice not only to the offender but also in seeking to provide ultimately more protection for the public. As Lord Lane said in Attorney General's Reference No 4 of 1989, 90 Cr.App.R 366:
"However it must always be remembered that sentencing is an art rather than a science; that the trial judge is particularly well placed to assess the weight to be given to various competing considerations; and that leniency is not in itself a vice. That mercy should season justice is a proposition as soundly based in law as it is in literature."
[12]In the present case this experienced judge took the view clearly after careful thought that the interests both of this offender and of the public generally would be best served by making the order that he did. He considered that the extent of the offender's mental condition at the time was such as to justify that course being taken.[13]We have a report before us as to how the offender has progressed since the making of that order. The conclusion of the probation officer is that he has been most impressed with the offender's ability to solve his problems despite his emotional difficulties and his past alcohol misuse. He concluded that the offender was using the community sentence in a positive way which could result in long term change. The only matter which has caused this court concern arising out of that report is the fact that not long after he was sentenced, a matter of days, he committed an offence of burglary for which he was given a conditional discharge by the Magistrates Court. But it is clear that the circumstances of that burglary were extraordinary. When he was sentenced by His Honour Judge Lyon his mother was not willing to have him back. He was accordingly homeless at the time. The offence was committed when he broke into his mother's house by the back door a few days later. He in fact took some personal items from the premises, hence the offence of burglary, but it can be seen that it was an offence of a very individual nature.[14]Mr Brown has indicated to us that another division of this court is shortly to give a judgment which may deal with the question of principle as to whether we should take into account a post sentence report such as this. It seems to us that we can satisfactorily deal with this case, as we have indicated, by reference simply and solely to the position before the judge and that, in our view, justifies the conclusion that we should refuse leave to make this reference. However, it is of some comfort to this court to find that the probation report which has been provided to this court is positive and we can accordingly hope that that progress is continued in a way which justifies the exceptional course taken by His Honour Judge Lyon in this case with which we do not consider that this court should interfere.

Cited in 1 later judgment