Attorney General's Reference No. 66 OF 2005 [2005] EWCA Crim 2445

Case No 200503513/A8[2005] EWCA Crim 2445
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 25th August 2005
Strand
London, WC2
B E F O R E:
MR JUSTICE GAGE
MR JUSTICE BEAN
SIR JOHN ALLIOTT
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 66 OF 2005
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MR F BROWN appeared on behalf of the ATTORNEY GENERAL
MR C ASPINALL [SOLICITOR ADVOCATE]appeared on behalf of the OFFENDER
J U D G M E N T

LORD JUSTICE GAGE:

[1]In this case the Solicitor General on behalf of the Attorney General seeks the leave of the Court to refer to this Court a sentence which the Attorney General considers unduly lenient. The offender is Fraser Gormanly. He is now aged 20. He was charged with one offence of robbery and pleaded guilty at the Crown Court on 10th May 2005. Sentence was adjourned for the preparation of pre-sentence reports. But on the occasion when he was due to be sentenced, 6th June 2005, there was no report available. He was content for the matter to be dealt with without a further adjournment. Accordingly, at the Sheffield Crown Court, he was sentenced in respect of that offence to six months' imprisonment.[2]The facts of the matter are as follows. On the evening of Sunday 16th April 2005 some friends of the offender were driving along a road in the Woodseats area of Sheffield. They saw the offender staggering about in the road. He appeared to be very drunk. The driver of the car stopped and spoke to the offender who asked for a lift to a cashpoint machine. He was argumentative and smelt strongly of alcohol. The car was driven to a BP garage where the offender got out. He staggered to the cashpoint machine and then into the shop. It was by now 8 o'clock in the evening.[3]The victim was working in the shop with one other female colleague. The victim was serving a customer when the offender walked in. The offender walked up to the till and picked up the credit card chip and pin machine. He was muttering to himself. He then struck the victim on the head with the machine. Having done so, he picked up some chocolate bars from the shop's display and threw them at the victim before running out of the shop carrying a display which held lotto scratch cards. The offender ran to his friend's car, but was refused entry. He ran off leaving the lotto cards behind.[4]Police officers were summoned. They attended the scene and acting on information provided by one of the occupants of the car they went to the offender's home address and arrested him. He was interviewed by the police. He said that he had been drinking since lunch time in a number of public houses. He said he had a vague recollection of being in a car and going to a petrol station but remembered nothing else.[5]The victim suffered a laceration to his head which was glued. We have been told that he suffered no lasting consequences from the injury.[6]The Attorney General relies on three aggravating factors which appear to him to be present. First, the offender caused injury to the victim; as we have said, an unpleasant injury to his forehead, but one which has not in any way discomforted him subsequently. Secondly, the victim was vulnerable because of his position as a shop assistant working at night. There was, as again we have said, only one other person present in the shop. Thirdly, the offender had plainly been binge drinking before the incident.[7]The Attorney General recognises that there are mitigating factors which are present. First, the offender was 19 years of age at the date of the offence. Second, he pleaded guilty at the earliest opportunity. Third, he was remorseful. He said he did not recall much of the incident, but was sorry that it had occurred.[8]He has a number of previous convictions, two of which are for offences of minor violence. The last one occurred some three months before the instant offence. He has previously not served a custodial sentence.[9]The Attorney General refers to a number of decisions of this Court to support his submission that the sentence passed was unduly lenient.[10]For the offender Mr Aspinall has informed the Court that since the sentence was passed, on the very moment it was passed, the offender received advice that there was a possibility, if not a probability, that the Attorney General might seek a reference to this Court. Mr Aspinall relies on the fact that the offender has no recollection of the events. It is accepted that he was heavily in drink at the time. He was working as a scaffolder. He had some leave off what was obviously an arduous job and he went out drinking. It is submitted that the value to him of the lottery scratch cards which were taken was nil and in any event he abandoned them.[11]So far as his present circumstances are concerned, he was arrested and brought back into custody for breach of a home detention curfew which had permitted him to go home on 22nd July 2005. He was found to be in breach of the curfew and rearrested on 17th August 2005 since when he has been in custody. We are told that the explanation for his breach of the home detention curfew was that he confidently expected that his case would be dealt with by this Court on 15th August. Since he had been advised that there was a possibility that he might be returned to custody, he had spent the two previous nights at the home of friends. He was distressed and upset to learn at a late stage that the case had been taken out of the list. That is the explanation for him being in breach of the home detention curfew conditions which resulted in him being rearrested.[12]The decisions which the Attorney General relies upon are the Attorney General's Reference No 60 and 61 of 1995 [1996] 2 Cr App R(S) 243, Attorney General's Reference No 18 of 1997 [1998] 1 Cr App R(S) 151, Attorney General's Reference No 68of 1999 [2000] 2 Cr App R(S) 50, and finally R v Rees andothers [2005] EWCA Crim 1857. We have considered all those decisions. From these decisions it is clear that the level of sentence for robberies of small shops and vulnerable premises is higher, and substantially higher, than the six months passed in this case, even on a guilty plea.[13]In Attorney General's Reference No 69 of 1999 the facts are not very dissimilar to the facts of this case, save for one important exception to which we will refer. The Court increased the sentence from six months to two years. The facts of that case differed from this case because the offender at the time of the robbery pretended he had a handgun in his pocket. He also did not have the mitigation of a guilty plea. The Court said that there were circumstances which brought the case outside and less serious than the normal category of attacks on vulnerable premises with a pretend firearm. In our judgment, the instant case is also less serious than the usual case of robbery of vulnerable premises. Nevertheless, it was a serious case and the offender has previous convictions.[14]We have also seen and taken account of the observations of the Lord Chief Justice in R v Rees, the reference to which we have just referred. At paragraph 9 of the decision in that case the Lord Chief Justice said this:
“When it is the habit of young men (and young women) to drink excessively and then behave out of character, it is important that the courts send a message that there are very real dangers in embarking in that sort of binge drinking. It may cause a person to behave in a way which is out of character. While the courts wish to be sympathetic towards offenders, they must bear in mind the consequences of the offence as a whole on the public. The problem is that when drinking at this level takes place, what starts as an exhibition of high spirits descends into conduct which is criminal.”
[15]Having considered all the circumstances in this case, we have reached the conclusion that the sentence was unduly lenient and we give leave. We think at first instance the appropriate sentence should have been at least two years. Taking into account all the circumstances, including double jeopardy, we quash the sentence of six months and for it substitute a sentence of 15 months' imprisonment. That will run from the date when the sentence was first passed.