Attorney General's References No 125 and 126 of 2006 [2007] EWCA Crim 174

No: 200605607 A5; 200605608 A5[2007] EWCA Crim 174
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 18 January 2007
Strand
London, WC2
B E F O R E:
LORD JUSTICE GAGE
MR JUSTICE UNDERHILL
THE RECORDER OF WINCHESTER
(Sitting as a Judge of the Court of Appeal Criminal Division)
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NUMBER 125/06 and 126/06 OF {"YEAR}
Computer Aided Transcript of the Stenograph Notes of
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MR J REES appeared on behalf of the ATTORNEY GENERAL
MISS L MCCLOSKEY appeared on behalf of the OFFENDER, Jake Tomney
MR C LANDER appeared on behalf of the OFFENDER, David Tomney
J U D G M E N T

LORD JUSTICE GAGE:

[1]There is before the court a reference by the Attorney-General of two sentences which he regards as unduly lenient. We give leave in each case.[2]The first defendant is Jake Tomney. He is now aged 17; he was aged 16 at the time of the offences and also at the time of sentence. The second offender is Simon Tomney. He is Jake Tomney's cousin. He is 20 years of age and was 19 at the time of one offence which he committed and at the time of the sentence hearing.[3]On 1st September 2006, at the plea and case management hearing, Jake Tomney pleaded guilty to two offences of robbery - counts 1 and 2 on the indictment. On the same date Simon Tomney pleaded guilty to one offence of robbery - count 2. He also pleaded guilty to an offence of wilfully obstructing a police officer in the execution of his duty. Sentence was adjourned for the preparation of reports.[4]On 10th October 2006 Jake Tomney was sentenced to a 2-year supervision order on each count concurrent, with a requirement that he lived with his aunt during the currency of the order and a further requirement that he attended an Intensive Supervision and Surveillance Programme (ISSP) for a period of six months. The ISSP included attendance at a violent offender programme, and a daily curfew requirement between the hours of 7.00 pm and 7.00 am. That was to be monitored by electronic equipment.[5]Simon Tomney was sentenced to a community order for a period of 12 months with a supervision requirement and a requirement that he perform 80 hours unpaid work. There was no separate penalty imposed in respect of the offence of obstructing a police officer.[6]The facts are as follows. So far as count 1 is concerned the victim of the robbery was Steven Carnes, a man aged 25 at the time of the offence. He suffers from epilepsy and has learning difficulties. At 12.30 am on 17th May 2006 Mr Carnes was walking to his home address in Kirkby. He was carrying a plastic bag which contained a computer game and a memory card for a computer games console. He noticed three men walking towards him, one of whom was Jake Tomney. One of the men asked the victim what he had in his bag. When Mr Carnes described the contents, one of the other men grabbed hold of him and kicked his legs from underneath him, causing him to fall to the ground. As Mr Carnes was on the ground, one man kicked him to the head while the other two searched his pockets and bag. He feared that he was going to be seriously hurt. The three men then made off with his computer equipment, mobile telephone, bus pass, keys and cigarettes. The prosecution were unable to assign a specific role to Jake Tomney.[7]In the course of the robbery Mr Carnes sustained a large painful, swelling to the back of his head where he was kicked. He did not seek medical attention. However, he suffered significant psychological damage. In a victim impact statement which was before the court, Mr Carnes described how the day after he was robbed he suffered his first epileptic fit for a number of years. The fit was so serious that he required hospital treatment. At the time of the hearing he was taking medication daily to control the seizures. He said he was scared to go out alone at night and was constantly looking over his shoulders for fear of being robbed again. The incident left him emotionally upset and he was having difficulty in sleeping.[8]So far as count 2 is concerned the facts were as follows. At about 1.20 am on the same morning as the first offence in count 1 the second victim, Ali Bamherez, aged 21, was cycling home from work when he decided to stop and make a telephone call from a public telephone kiosk. When Mr Bamherez left the kiosk he was approached by three men. There was a fourth man nearby. The two offenders were amongst this group of four men. As Mr Bamherez mounted his pedal cycle he was punched to his face. The force of the blow knocked him to the ground. While he was on the ground three men began kicking him to his head. The fourth man then ran over and joined in the assault. One of the assailants repeatedly stamped onto Mr Bamherez's face. When he tried to get to his feet the fourth man grabbed him from behind as the other three continued to punch him. Mr Bamherez received a further kick to the face and one of the men went through his pockets and stole a mobile telephone and £8 in cash. The men also stole a shoulder bag which contained Mr Bamherez's work clothes and two disposable cameras.[9]At the end of the attack Mr Bamherez managed to stand up. One of his attackers said he had a gun and grabbed at his waistband. Not surprisingly, Mr Bamherez was absolutely terrified. At this point all of the men walked off. Again the prosecution was unable to assign a specific role to either of these offenders.[10]As a result of the incident, Mr Bamherez suffered heavy bruising and swelling to both sides of his face and to the top and back of his head. He was taken to hospital where he received two stitches to a deep cut above his left eye.[11]Both those robberies were reported to the police and descriptions of the suspects were circulated.[12]A short time after the second robbery police officers stopped these two offenders close to the scene of the second robbery. Simon Tomney initially gave his name as "Craig Gough". When searched, Jake Tomney was found to be in possession of a mobile telephone stolen from Mr Carnes, the victim of the first robbery. Simon Tomney was found to be in possession of the mobile telephone taken from Mr Bamherez. Both men were arrested. At the police station Jake Tomney was also found to be in possession of the bus pass taken from Mr Carnes. When he was interviewed, Jake Tomney admitted that he had participated in the first robbery, although he appeared to deny that any violence was used. He said that only two people were involved - himself and Simon Tomney. He said they had just stopped the victim and took the property from his pocket. He denied taking part in the second robbery, claiming that he was not there. However, in due course he pleaded guilty to that offence as well.[13]In the course of his interview Simon Tomney admitted that he had been involved in the incident concerning Mr Bamherez. He denied that he had robbed him. He said that he was on his way to meet two of his cousins and another man when he saw them fighting with the victim. He said he ran over to help them. He said that he put Mr Bamherez in a headlock while the other three punched him. He denied being present when Mr Bamherez was punched off his bicycle and kicked when he was on the ground. He claimed that he did not see any other of the men stealing property from Mr Bamherez. He said that when he and his cousin were stopped by the police his cousin handed him Mr Bamherez's mobile telephone. He said that he was drunk when the incident happened.[14]Jake Tomney has a number of previous convictions, including convictions for offences of theft, burglary and having a bladed article in a public place. He has no convictions for offences of robbery or violence. He has been the subject of a variety of sentences, including a range of non-custodial sentences, many of which have been breached. On 8th December 2005 for an offence of burglary of non-residential premises and other matters, he was sentenced to consecutive detention and training orders for a total term of eight months. He was released on licence on 8th March 2006 with a condition that he abide by home detention curfew. These offences were committed during the currency of detention of training and supervision orders. Since he was dealt with for these two offences, we have been told that he has committed further offences of aggravated vehicle taking arising out of incidents which occurred on 8th January 2007. In respect of those sentences he was sentenced on 9th January 2007 at the Liverpool Youth Court to a detention and training order of eight months.[15]In his case there was before the court a pre-sentence report dated 14th September 2006. It contains details of the deeply unsettled and emotionally traumatic upbringing of Jake Tomney. The author of the report said that the main factor underlying this criminal behaviour, including these offences, as alcohol abuse. He was assessed as posing a high risk of re-offending and presenting a medium to high level of danger to the public. However, it was felt that a constructive statutory supervision could reduce the stated risks. It was on the basis of that report that sentencing was adjourned so that there could be an assessment report by a probation officer to see if he was eligible and suitable for an ISSP. That report, dated 2nd October 2006, was before the sentencing judge and as a result of that the ISSP order was made. Jake Tomney had spent 145 days remanded in custody before being sentenced.[16]Simon Tomney has no previous convictions. The author of a pre-sentence report placed before the court in respect of him assessed the risk of him re-offending or causing harm as low.[17]The Attorney-General identifies the following aggravating features so far as Jake Tomney is concerned as follows: first, Jake Tomney committed two robberies within an hour; secondly in each case he was one of a group of young men who carried out the robbery; thirdly, each robbery was committed at night on a lone male making his way home; fourthly, in the course of each offence the victim's head was targeted with blows from a shod foot; fifthly, injuries were inflicted on both victims and the victim of the second robbery suffered a laceration to the face which required stitches; sixthly, the offence on count 1 had a significant psychological impact on the victim; seventhly, Jake Tomney has previous convictions for offences of dishonesty, although, as has been pointed out by Mr McCloskey who represents him today, he has no previous convictions for offences of violence; eighthly and lastly, the offences were committed during the period of supervision under a detention and training order.[18]The Attorney-General identifies the following mitigating features which appear to be present: he was aged 16 at the time he committed the offences and at the time of sentence; he pleaded guilty at an early stage of the proceedings; he expressed remorse for his offending behaviour and he had spent 145 days remanded in custody before sentence; during that time on remand he had attempted suicide and finally he had had a very disruptive and unsettled family upbringing.[19]So far as Simon Tomney is concerned, the Attorney-General identifies the following aggravating features which appear to be present: he was part of a team of four young males who carried out the robbery; the robbery was committed at night on a lone man making his way home; in the course of the robbery the victim was punched and his head was targeted with kicks and stamps; the victim suffered injuries, including a laceration to the face, which required stitches.[20]In his case the following mitigating features are identified: he was aged 19 when he committed the offence; he pleaded guilty at an early stage of the proceedings; he had no previous convictions, although there was a previous caution for theft; he expressed remorse for his offending behaviour.[21]On behalf of the Attorney-General Mr Rees submits that the orders made by the Recorder were not only lenient but unduly lenient. We have been referred to the Sentencing Guideline Council, guidelines in respect of robbery both for young offenders and also for adult offenders. So far as Jake Tomney is concerned, he is a young offender and, it is submitted, he comes into the category of a level 2 offender in relation to these two robberies of which the starting point is a period of 3 years' detention.[22]So far as Simon Tomney is concerned, it is submitted that he comes into the category of adult offenders, albeit he is a young adult. The starting point for a level 2 offence is 4 years' custody and the range of sentences is 2 to 7 years. In addition, Mr Rees has referred the court to the guideline cases of Attorney-General's Reference Nos 4 and 7 of 2002 Lobban & Ors [2002] 2 Crim App R (S) 345 and Attorney-General's Reference No 98 of 2004 Joe Meakin [2005] 1 Crim App R (S) 716. It is necessary for us only to refer to a passage in Lobban & Ors. At page 348 Lord Woolf CJ, giving the judgment of the court, stated:
"4. Faced with that background the courts have no alternative but to adopt a robust sentencing policy towards 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 a judge comes to decide on the length of sentence. 5. In his submissions on behalf of the Attorney General, Mr Pownall said that the bracket of sentencing which the authorities reveal for offenders of the sort we have been describing is 18 months to five years. We will look shortly at the some of the authorities to which we were referred. We agree with what Mr Pownall said, subject to this. If the offences are committed by an offender who has a number of previous convictions and if there is a substantial degree of violence, or if there is a particularly large number of offences committed, the five year upper limit may not be appropriate."
We bear those observations in mind when dealing with these two offenders.[23]Before this court there are up-to-date reports in respect of each of these two young men. As far as Simon Tomney is concerned, the author of the report records that he has made reasonable progress under the supervision order, although it is stressed that that order is still in its infancy. However, there are signs of him making a success of that supervision.[24]So far as Jake Tomney is concerned, he failed to attend a number of appointments made for him. Initially he made some progress but the supplementary report on him prepared by Ms Maylee Wong shows that his progress has been substantially hampered by failures to keep appointments. Latterly he ceased to attend and went missing. He has resurfaced, as we have already described, having committed offences of aggravated vehicle taking.[25]On behalf of these two offenders it has been conceded on behalf of each that the orders of the Recorder were lenient; however, it is submitted that they were not unduly lenient. Mr McCloskey, on behalf of Jake Tomney, relies on the following matters. First of all, Jake Tomney pleaded guilty at the earliest opportunity; secondly, and very importantly in his case, he was only 16 years old at the time of the offence - he is now just 17. It is accepted that he has a bad record. On the other hand reliance is placed on the fact, as we have already said, that he has not committed any offences of violence, and certainly no robbery. Further, Mr McCloskey submits that he was in custody for a period of five months which is equivalent to a custodial term of 10 months before he was sentenced. Lastly, it is submitted that the court should pay full attention to his difficult upbringing.[26]So far as Simon Tomney is concerned Mr Lander submits that the order made in respect of him was not unduly lenient. He relies on the fact that he pleaded guilty at the earliest opportunity; he is a young man of good character and a young adult. It is submitted that in the circumstances the order made by the Recorder was one which he was entitled to make.[27]In the alternative, for each of these offenders it is submitted that if the court concludes that the sentence passed was unduly lenient, so far as Jake Tomney is concerned Mr McCloskey submits that this court ought not to pass any lengthy custodial sentence, bearing in mind that he is already now subject to a detention and training order.[28]Mr Lander on behalf of Simon Tomney submits that this court should and can exercise its discretion, notwithstanding that it concludes the sentence was unduly lenient, not to interfere with the order. In respect of that he relies on the element of double jeopardy, as does Mr McCloskey. He submits that in this case his client, being of good character and having had a non-custodial sentence passed, if this court were to pass a custodial sentence the element of double jeopardy would be substantial and significant.[29]Furthermore, Mr Lander refers to a statement made by Sergeant Clatworthy, a Sergeant in Parachute the Regiment. That statement shows that the witness regards Simon Tomney as suitable to join the Army. He has expressed a wish to do so. It is pointed out by the witness that if a custodial sentence is passed then his chances of being able to enlist will be substantially reduced. On the other hand, if his community order remains there is a reasonable prospect of him being permitted to enlist in the Army.[30]In our judgment, the orders made by the Recorder were not only lenient but unduly lenient. The authorities to which we have been referred and the Sentencing Guideline Council's guidelines show that, in dealing with offences of this sort, the court will almost inevitably be required to pass a custodial sentence. We are quite satisfied that the orders made by the Recorder are, as we have said in these circumstances, unduly lenient.[31]We deal first with Jake Tomney. He is still a very young man. With his unfortunate background we can understand why the judge was anxious to pass the sentence which he did with a view to giving him a chance to put his criminal past behind him. However, these were serious offences and we have no doubt that he ought to have passed a custodial sentence. Indeed, events subsequent to him making that order have shown that this young man needs a custodial sentence in the hope that that it will bring him to his senses.[32]Taking all those circumstances into account -- including the following: the fact that he has spent 145 days in custody before being sentenced; the fact that he has done some work in relation to the ISSP and the fact that he has to be sentenced for a second time -- we have reached the conclusion that the order that we should substitute for the one passed by the Recorder is a further detention and training order. In our judgment, taking all those factors into account and taking into account that he is at present subject to an 8-month detention and training order, the appropriate sentence for us to substitute is one of 12 months' detention and training order; that to be consecutive to the detention and training order which he is currently undergoing. Accordingly, we quash the order made by the Recorder and for it substitute that order.[33]As far as Simon Tomney is concerned, in his case it is equally clear that the sentence passed upon him was unduly lenient. In our judgment, the Recorder ought to have passed a custodial sentence. However, we have to deal with him in the situation in which he now is. Although the authorities suggest that he ought to have been the subject of a detention order in a Young Offender Institution, we take the view that in the exercise of our discretion that would not be the appropriate course for us to adopt today. We bear in mind that in his case, in contradistinction to the case of Jake Tomney, he has made use of the supervision order and has made progress on it. There is nothing to suggest that he has not complied with the community service order. Time has now passed. He is still a young man. He was a young man of hitherto good character and, in the exercise of our discretion, we take the view that it is possible for us to take the course of not interfering with the order made by the Recorder. For those reasons, although we give leave we make no order in his case.