Attorney General's Reference No. 24 AND 25 OF 2005 [2005] EWCA Crim 2519

Case No 200501572/1573/A8[2005] EWCA Crim 2519
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 6th October 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE LATHAM
MR JUSTICE NEWMAN
MR JUSTICE OPENSHAW
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 24 AND 25 OF 2005
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR H DAVIES appeared on behalf of the ATTORNEY GENERAL
MR G ROBERTS appeared on behalf of the OFFENDER WALKER
MR G P HENNELL appeared on behalf of the OFFENDER WALSH
J U D G M E N T

Lord Justice Latham:

[1]This is an application by the Attorney General under section 36 of the Criminal Justice Act 1988 in the case of two offenders, Gary Walker, who is 23 years of age, and Dean Walsh, who is 20 years of age. For an offence of attempted robbery they were sentenced to four years in custody - as far as the offender Walker was concerned that was four years' imprisonment and as far as Walsh was concerned that was four years' detention in a young offender institution -- at Chester Crown Court on 22nd February 2005. In addition, the offender Walker was sentenced to a concurrent term of four months' imprisonment in respect of an offence of driving whilst disqualified.[2]We give leave to the Attorney General to make the reference.[3]The sentences arise out of the events of 14th December 2004, when, at about 9.45 in the morning, a small family run sub-post office in the village of Pickmere was the subject of an attempted robbery by these two young men who had driven to the village from Manchester. The sub-post office consists of single room premises with a solid glass screen in front of the post office element of the shop. The shop had a closed circuit television system and a panic alarm. It had been the subject, unhappily, of robberies in the past. The shop was run by a Mr Gates, who is 66 years old, and his wife, Mrs Gates, 59, who effectively lived on the premises.[4]The first that anybody suspected about the robbery was when a passer-by saw the two offenders sitting in their car parked not far from the post office. She was suspicious of the two young men and made a mental note of part of the registration number. It would appear as though the two young men were at that stage planning the attack, because it was only a matter of minutes later that they got out of the car, wearing balaclava style masks, and were seen by Mrs Gates coming towards and then coming into the shop. She thought that one of them (the offender Walsh) was carrying what looked like a baseball bat, about 3 foot in length. She then pressed the panic button which activated the alarm. The next thing she knew was the sound of the smashing of the security screen by a sledge hammer wielded by one of the offenders.[5]At that stage Mr Gates came into the shop, again protected by the security screen, which, despite the fact that the sledge hammer had made a hole in it, had fortunately held firm. Mr Gates bravely told the offenders to get out, despite the fact that they were demanding money, saying, "hand over the money". But it became obvious to them that Mr Gates and his wife were determined to stand their ground and not hand over the money. One of the offenders, it would appear the offender Walker, then said to Walsh that they should leave, which they did. They got into their car and drove off.[6]The police had been notified of both the attack and the registration number of the vehicle, which was then chased by the police back into Manchester. It was eventually stopped; and the offenders were arrested. They were wearing gloves. Two balaclavas were found in the vehicle, as was a sledge hammer and a metal bar. They were interviewed and made no comment in their interviews. They were charged and pleaded guilty ultimately at the first plea and directions hearing.[7]The judge was not asked to consider any pre-enquiry reports. The only matters relating to the antecedents of these two offenders which were before him were their records. The offender Walker had previous convictions, but had not been subject to any punishment other than a community penalty in the past. The offender Walsh, however, had more serious convictions. In particular, he had been sentenced on 11th August 2000 to four years' detention in a young offender institution, having pleaded guilty to wounding with intent to do grievous bodily harm. It was in those circumstances that the judge sentenced these two offenders to the custodial period of four years to which we have referred.[8]The submission of the Attorney General made by Mr Davies on his behalf is quite simply that in the light of both authority and the advice of the Sentencing Guidelines Council the sentences are quite simply wrong as being unduly lenient. He has referred us, in particular, to Attorney General'sReference No 7 of 1992 14 Cr App R(S) 122, which affirmed the judgment of the Lord Chief Justice, Lord Lane, in AttorneyGeneral's Reference No 14 of 1991 (1991) 13 Cr App R(S) 446.[9]The position in both those cases was that the offenders had robbed small shop premises. On each occasion they were armed, in the one case with a replica firearm and in the other with a pistol capable of firing blank cartridges. They had been sentenced to sentences of two and three years' imprisonment.[10]Lord Lane in Attorney General's Reference No 14 stated at page 449:
"... it is very seldom that in these circumstances a sentence of much less than seven years would be appropriate, the purpose of the sentence of that length being threefold: first of all to deter the offender from behaving in this way again; secondly to deter others from arming themselves with weapons and holding up banks; and thirdly, a matter which is sometimes overlooked, to punish the offender for having carried out this wicked crime and having put several people in fear of death."
[11]That was the quotation which was repeated in AttorneyGeneral's Reference No 7 by Lord Taylor, and, it seems to us, provides the appropriate guidance to courts in cases such as these. It should be noted that in both of those cases there had been pleas of guilty and that is the context in which the remarks of both the Lord Chief Justices were made.[12]In the present case clearly there is this difference, that the offenders were not armed with pistols or imitation firearms. Nonetheless, they were armed. They were armed with a sledge hammer and what Mrs Gates believed to be a baseball bat, but was probably the iron bar. That necessarily involved, and was intended to involve, putting those in the shop in fear. It was only the steadfastness of Mr and Mrs Gates which prevented them from being able to achieve their objective.[13]We have taken into account the submissions made on the offenders' behalf. As far as the offender Walker is concerned, it is pointed out that he has no previous convictions for a serious offence of this sort. He had personal mitigation in relation to the circumstances in which he found himself and which drove him to commit this offence. It would appear that he may well have been the one who urged that the two of them should leave when it was apparent that they were unlikely to be able to obtain their objective, at least easily, and he has behaved well in prison.[14]As far as the offender Walsh is concerned, we are asked to take into account his age, and a further factor which has arisen since he was sentenced, which is that he now serves an additional two year sentence for conspiracy to commit criminal damage relating to events in prison, which was ordered to be served consecutively to the sentence with which we are concerned.[15]Both counsel ask us, in particular, to take into account the fact that the offenders pleaded guilty at the first available opportunity.[16]In our view, despite that mitigation, the sentences that were imposed on these two young men were clearly unduly lenient. Whilst it may be that there should be some discount from the suggested figure of seven years' imprisonment to reflect the fact that they were not carrying pistols or imitation firearms of any sort, nonetheless, the gravamen and seriousness of this offence remains similar to that in the two cases to which we have been referred.[17]Premises such as these are vulnerable. They require protection by the courts. Those who seek to rob from them, and in so doing intend to put those in the shops in fear, must expect long sentences. We do not think that in those circumstances, even taking account the element of double jeopardy, it would be right for this Court to do other than to impose a sentence in each case of six years in custody. That would be six years' imprisonment so far as the offender Walker is concerned and six years' detention so far as the offender Walsh is concerned.