Attorney General's Reference No. 10 of 2005 [2005] EWCA Crim 1594

Case No 2005/00570/A8[2005] EWCA Crim 1594
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 10 June 2005
The Strand
London WC2
B e f o r e:
LORD JUSTICE GAGE
MR JUSTICE STANLEY BURNTON
MRS JUSTICE DOBBS
ATTORNEY GENERAL'S REFERENCE No. 10 of 2005
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988
Between
R E G I N ACrown- v -
Between
DEEJAY DWAYNE EDWARDS
Computer Aided Transcription bySmith Bernal, 190 Fleet Street, London EC4ATelephone No: 020-7421 4040(Official Shorthand Writers to the Court)
MISS S BENNETT-JENKINS appeared for ATTORNEY GENERALMR J D S WISHART appeared for OFFENDER
J U D G M E N T

Friday, 10 June 2005

[1]This is an application by the Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer for review a sentence which is said to be unduly lenient. We grant leave.[2]The offender is Deejay Dwayne Atherton Edwards, now aged 22. On 29 November 2004 he pleaded guilty to one count of robbery. No evidence was offered in respect of a co-defendant on the same count. Similarly, no evidence was offered against the offender in relation to a second count of robbery relating to the same day. The offender initially entered pleas of not guilty to these matters on 25 May 2004 at the plea and directions hearing and a trial date was set for 29 November 2004. However, the offender had tendered a plea in advance of the hearing date which was acceptable to the Crown and the matter was adjourned for the preparation of a pre-sentence report. On 4 January 2005, at Manchester Crown Court, the offender was sentenced to a Combination Order comprising 80 hours' community punishment and a two-year Rehabilitation Order.[3]The facts are as follows. On 29 November 2004, a young girl aged 17, went with a friend to the Liquid Nightclub in Oldham. The victim and her friend left the nightclub at about 1.15am on the following morning. They went to buy some food in Yorkshire Street. As they walked towards the takeaway restaurant they heard the offender and another man, Dominic Jallum, shout at them. The two men were seated in a silver Ford Focus vehicle. They shouted, "Can I have your number? You look nice" and, "Oi, come here, my mate wants to talk". The victim and her friend ignored the shouts and met up with the friend's boyfriend, Shamsu Miah, and got into his car. As they set off they became aware that the offender and Jallum were following behind in the silver Ford Focus vehicle. Shamsu Miah attempted to drive away, but was chased by the offender for about ten minutes, with speeds on occasions reaching up to 60mph. Shamsu Miah drove his vehicle into a car park on Featherstall Road North, where he had seen a number of cars parked. He hoped to find some assistance. The cars stopped. The offender and Jallum left their vehicle. The offender put on a balaclava and he and Jallum went towards Shamsu Miah's vehicle. The offender then said, "Give me your phones. I'm going to strip you of your stuff. I want everything you've got." He was speaking about guns and he made a shape of a gun with his hand. Miah saw the offender put something under his jumper. The victim then handed her mobile phone to the offender. The offender said to the victim and her friend, "Get out of the car. We'll take you home". The victim got into the offender's car as she was directed, together with her friend. A short time later the car stopped. Both the offender and Jallum got out and became involved in an argument with other men in a Corsa. The friend of the victim took the opportunity to get out of the car and call the police. The victim was driven away by Jallum, who then attempted to rape her. He subsequently pleaded guilty to an offence of attempted rape in respect of which he was sentenced to three years and nine months' imprisonment. The offender did not go in the car. He made off from Featherstall Road, but was detained by members of the public until the police arrived. He was arrested by two police officers and cautioned. He replied, "Okay, just get these boys off me".[4]He was taken to Oldham Police Station. On a search he was found to be in possession of a black woolly hat, black gloves and a black balaclava. He was found still to have in his possession the victim's mobile telephone.[5]He was interviewed on 8 March 2004. In summary he said that he had been at a club during the course of the evening and that he was drunk. He claimed that he had arranged to meet two girls by the food shops and as a result of being invited to do so had followed the girls in the car. He accepted that he had had a balaclava on, but said that this was as a joke and that he had taken the victim's mobile telephone so that he could her details onto his own telephone. He was charged with the offence of robbery.[6]The Attorney General submits that the following aggravating features are present in this case. First, this was a planned robbery executed at night. Secondly, the victim was a vulnerable young female. Third, the victim was pursued in a car at high speeds. Fourth, the offender wore a black balaclava during the course of the robbery and made gestures which seemed to indicate that he might have a weapon on him. Fifth, the subject of the robbery was a mobile telephone.[7]The Attorney General accepts that the following mitigating features are present. The offender pleaded guilty (albeit not tendered at the earliest stage). He was of good character, save for one offence for which he had been cautioned.[8]The Attorney General submits that the sentence was unduly lenient and principally relies on the decision of this court in Attorney General's Reference Nos 4 and 7 of 2002 (R v Lobban and Anothr) [2002] 2 Cr App R(S) 345.[9]The offender is a young man who had an unblemished record, save for the caution in 2003. That was a caution for an offence of criminal damage. We are prepared to deal with him at this stage on the basis that he had a good character. There was before the sentencing court a pre-sentence report in which the author of the report stated that the offender could pose a risk of harm to the public in the future, but suggested a community order. That was the order that was made by the sentencing judge.[10]This court has a relatively up-to-date further report from the probation officer and we have been given further information by Mr Wishart who appears on behalf of the offender. In summary it appears that not only has the offender complied with the conditions of the Community Punishment Order, he has now completed the whole of the 80 hours that he was ordered to serve. We have been told by Mr Wishart that the probation officer describes the offender's progress as excellent.[11]This was in our judgment a serious offence of its kind. We accept the submissions made on behalf of the Attorney General in relation to the aggravating features. In Lobban to which we have already referred, at page 347 the Lord Chief

Justice giving the judgment of the court said the following:

"3. The information available points in the direction of telephones having played a part in the rise in robberies. Those under 18 constitute nearly 48 per cent of all victims, with a peak age at 15 and 16. Faced with that background, the courts have no alternative but to adopt a robust sentencing policy to 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 the judge comes to decide on the length of the sentence."
The court went on to agree with the bracket suggested on behalf of the Attorney General by Mr Orlando Pownall that it should be 18 months to five years.[12]In our judgment there are no exceptional circumstances in this case which would justify a non-custodial sentence. We conclude that the sentence passed upon the offender by the judge was unduly lenient. Taking into account all the circumstances, including the mitigating factors to which counsel has referred, as did the judge in his sentencing remarks, taking into account the double jeopardy factor and no least the offender's hitherto good character and early plea of guilty, we conclude that the appropriate sentence in this case is 12 months' imprisonment. That will run from the date of the offender's surrender. We should make it clear that in arriving at this sentence we have taken into account that the offender, since originally being sentenced, has complied with the Community Punishment Order and has served the whole of the 80 hours that he was ordered to perform. But for that factor the sentence that we have imposed would be rather longer. For those reasons the sentence passed by the judge is quashed. For it we substitute a sentence of twelve months' imprisonment. ___________________________________