Attorney General's Reference Nos. 12 and 13 of 2007 [2007] EWCA Crim 1391

No: 2007/1171/A1 & 2007/1172/A1[2007] EWCA Crim 1391
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 16 May 2007
Strand
London, WC2
B E F O R E:
THE VICE PRESIDENT
(LORD JUSTICE LATHAM)
MRS JUSTICE RAFFERTY
MR JUSTICE WYN WILLIAMS
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 12 and 13 OF 2007
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
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MISS B CHEEMA appeared on behalf of SULIEMAN
MR T SINGH appeared on behalf of HUSSEIN
MR L KAUWE appeared on behalf of SULIEMAN
J U D G M E N T
[1]THE VICE PRESIDENT: This is an application for leave to refer to this court under section 35 of the Criminal Justice Act 1988 sentences imposed on two offenders Moegtar Hussain and Jamal Sulieman on 5th February 2007. They were each made the subject of an order of conditional discharge for two years in respect of an offence of robbery. We give leave to the Attorney General to refer these sentences.[2]The offenders were together on 9th March 2006 on the top deck of a bus in Birmingham. The first offender was said in the accounts that he gave to have thought that a 17-year-old Asian youth on the top floor of the bus was someone who had been responsible for bullying him in the past or perhaps, to be more exact, to have been part of a group who had been bullying him in the past. The judge was prepared to accept that that was correct.[3]The CCTV film shows that the first offender went up to the victim and there would appear to have been some conversation at that stage. They were then joined by the second offender who was summoned over by the first offender. Thereafter there was an assault on the victim which involved the offenders punching the victim repeatedly. During the course of that assault, the iPod which had been carried by the victim fell to the floor and the first offender picked it up, removed the earpieces and took it away.[4]A result of the assault having been viewed on the CCTV cameras, the driver stopped the bus, police and ambulances were called and the offenders were arrested very close by. Although the iPod was not found on either of the two offenders, it was subsequently discovered down the side of the seat of the police car in which the first offender had been taken to the police station.[5]The victim suffered some injury. He suffered bruising around his face and head and he has been left with what is described as a "clicking" jaw.[6]The offenders were interviewed. Both made no comment in their interviews. When they were subsequently brought before the court they pleaded guilty to the offence of robbery at the first opportunity.[7]Turning then to the offenders themselves. The first offender is now 18 years of age, having been born on 2nd June 1988. The second offender is 17 years of age having been born on 1st November 1989. Neither of them have previous convictions. They are both young men who are well spoken of in the pre-sentence reports. They are undergoing education which at present it would appear as though they are likely to complete successfully and indeed we have been provided with material to indicate their progress.[8]The pre-sentence reports on both the offenders indicated that it was considered that community penalties would be appropriate in both cases and regimes were accordingly suggested to the court which could provide some form of probation supervision and control.[9]The judge in his sentencing remarks identified at the beginning of his address to the offenders that he was in fact going to subject both of them to conditional discharges. He went on to explain why he was taking what he accepted to be a lenient course. He described how the first offender had come here from Holland, had had significant difficulties and been subject to bullying. He said:
"I accept on this occasion the man you assaulted and whose iPod you stole you mistakenly assume was one of who was responsible for the bullying of you. In fact he was an entirely innocent victim, and was in no way to blame for what happened."
He then went on, having accepted that the incident involved violence resulting in injury, to state that he was satisfied that this was not a premeditated incident. He took into account that they had both pleaded guilty at the first available opportunity and in deciding that he would impose conditional discharges rather than the community sentences that were suggested by the pre-sentence reports, he said that he did not think the probation service should be troubled with trying to deal with these two because they were both perfectly intelligent enough to make their own decisions. He indicated if they got into any further trouble involving in particular violence they would undoubtedly face a custodial sentence.[10]On behalf of the Attorney General, Miss Cheema makes the point that this particular form of offence is prevalent and this court in Attorney General's Reference Nos 4 and 7 of 2002 [2002] EWCA Crim. 127 indicated that offenders should expect a custodial sentences. In that particular case the court indicated that custodial sentences of between 18 months and five years would be appropriate and that it would only be in exceptional circumstances that an offender guilty of a robbery involving any violence could escape a custodial sentence.[11]That authority has now been superseded in the sense that sentences in relation to street robberies have been the subject of the definitive guideline of the Sentencing Guidelines Council which sets out in relation to young offenders a table indicating starting points and sentencing ranges. There are three levels of offence. Firstly:
"The offence includes the threat or use of minimal force and removal of property."
Secondly:
"A weapon is produced and used to threaten and/or force is used which results in injury to the victim."
Then finally:
"The victim is caused serious physical injury by the use of significant force and/or use of a weapon."
So far as the first level is concerned, the starting point is a community order and the sentencing range a community order to 12 months' detention and training order. So far as the second level is concerned the starting point is three years' detention and the sentencing range one to six years' detention. Finally, for the final level the starting point is seven years detention and the sentencing range six to 10 years' detention.[12]On behalf of the Attorney General, Miss Cheema submits that this particular offence fell into the second level which should have resulted in the judge considering a starting point of three years' detention. To that should have been added the aggravating factor that there was more than one offender involved. She accepts that it could properly however be described as an unplanned or opportunistic offence which is a mitigating factor and certainly as far as the second offender is concerned it might be said that he was peripherally involved as opposed to centrally involved. She accepts clearly that the age of both these offenders must be taken into consideration and finally, she accepts that the judge was right to give full discount for the plea of guilty. That said, she submits that the appropriate sentence here could and should not have been less than a custodial sentence of two years' detention. Accordingly, the sentence of conditional discharge fell so far outside the ambit of appropriate sentences for an offence such as this that we should conclude that it was unduly lenient and should substitute detention or at the least a community penalty as opposed to conditional discharge.[13]We have no doubt at all that the judge was well aware of the fact that he was imposing a lenient sentence. Indeed it was an extremely lenient sentence. The position is that in cases such as this the court is bound to start from the premise that a custodial sentence is likely to be the appropriate disposal. But the judge here clearly took into account the particular circumstances under which the incident commenced as putting it in a slightly different category from the normal. That follows from the sentencing remarks. It seems to us that it follows that the consequential taking of the iPod was in a sense a collateral event, not part of the intent of either party when the incident started. That does not make it any the less an incident which deserved punishment. The question is therefore whether the conditional discharge simply does not reflect that fact sufficiently and that we ought to interfere as a result.[14]Bearing in mind the fact that the offenders have now had this matter hanging over their heads for a substantial period of time, that they have known that since the sentence was referred to this court they have been at risk of being sent to detention, we have come to the conclusion that we can exercise our discretion to conclude that the element of double jeopardy therefore is such as to justify us in saying that despite the fact that this was a very unusual course taken by this judge it is not necessary in the interests of justice to interfere with the orders that he made. Accordingly, we do not interfere with the sentences.