Attorney General's References Nos 52 and 53 of 2007 (Osman & Anor) [2007] EWCA Crim 1890

Case No 200702290 A5[2007] EWCA Crim 1890
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 12th July 2007
Strand
London, WC2A 2LL
B e f o r e:
MR JUSTICE GAGE
LORD JUSTICE DAVIS
HIS HONOUR JUDGE CHAPMAN
(Sitting as a Judge of the Court of Appeal Criminal Division)
Between
R E G I N ACrownv
Between
ABDI OSMANMOHAMMED HAYIR
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR S REQUENA appeared for Appellant, OsmanMR S HOSKING appeared for Appellant, HayirMISS S WHITEHOUSE appeared for CrownJ U D G M E N T

LORD JUSTICE GAGE:

[1]This is an application by the Solicitor-General for leave to refer to this court sentences in respect of two offenders which he regards as unduly lenient. We grant leave.[2]The first offender is Abdi Osman, now aged 19. The second offender is Mohammed Hayir, now aged 25. They each pleaded guilty - in Osman's case to three offences, in Hayir's case to one offence. They are as follows. So far as Osman is concerned, he pleaded guilty to an attempted robbery committed on 13th May 2006. His guilty plea was entered on 2nd April 2007. He also pleaded guilty to another offence of attempted robbery committed on 5th July 2006. His guilty plea was entered at Snaresbrook Crown Court on 24th October 2006. Each of these two offenders were convicted, following a trial of an offence of robbery on 1st March 2007. The trial took place at the Harrow Crown Court and on 2nd April 2007 they were sentenced as follows: so far as the offence of robbery is concerned each was sentenced to 3½ years', imprisonment for Hayir, and detention in a Young Offender Institution for Osman. Osman was also sentenced in relation to the two attempted robberies to sentences of 6 months' imprisonment in relation to each of them, those offences to run concurrently with each other but consecutively to the sentence of 3½ years' detention. Accordingly, the total sentence so far as Osman is concerned is 4 years' detention.[3]We deal with the facts in chronological order. The first offence that has been referred to this court is the attempted robbery involving Osman. The facts are as follows. On the morning of 13th May 2006 Osman, together with two co-accused, approached a victim, aged 33, in the street. Osman struck the victim in the face causing a laceration, and one of the co-offenders hit the victim with a brick. Osman initially pleaded not guilty to the offence but he pleaded guilty, as we have related, on 2nd April 2007, the date that he was sentenced.[4]The second offence to which Osman pleaded guilty is the attempted robbery committed on 5th July 2006. On that day he and a co-offender approached a victim in the street at 11.00 pm. Each of the offenders asked the victim for his mobile telephone. When the victim refused to hand it over the offenders tried to pull his rucksack from his back. The incident ended because the police arrived. Again, as we have already indicated, Osman pleaded guilty to this offence on 24th October 2006. For the purposes of this hearing it is accepted by the Solicitor-General that that was at the earliest opportunity.[5]We turn now to the robbery involving each of these offenders. The victim of the robbery was Mr Farad Sharmarke. He was aged 31 at the time. He was looking after a flat for a friend. On 6th August 2006 he came back to the flat to find the offenders and two other men waiting for him just inside the front door. The victim knew Hayir, and we have been informed today that Hayir had stayed previously in the flat. All four men surrounded Mr Sharmarke. One of the two other men held a screwdriver to his throat. Hayir grabbed the victim's mobile telephone and passed it on to Osman. Property was demanded from Mr Sharmarke and he was told he would die if he did not hand something over.[6]Osman grabbed Mr Sharmarke's pockets and put his fingers onto his eye sockets. Another man hit Mr Sharma over the head with a plastic bottle.[7]The situation calmed down a little and Mr Sharmarke managed to get away by pretending that he was going to fetch some property for the four men. He pushed past them and grabbed a kitchen knife. He managed to escape from the flat, locking the four men inside, and went to call the police. The men escaped through a window. Mr Sharmarke chased them down the street, still holding the knife, and caught up with them. Osman threw his telephone back at him along with a vodka bottle. As we have said, the two offenders pleaded not guilty but were convicted by the jury.[8]The Solicitor-General identifies the following aggravating factors which appear to him to be present. The robbery was carried out in the place where Mr Sharmarke was living at the time. The robbery involved four men acting together. A screwdriver was used to threaten Mr Sharmarke. Osman was on bail for the two other offences and one other robbery at the time of the commission of the offence. He also has a previous conviction for robbery committed in 2005. So far as Hayir is concerned, he has a conviction for robbery in the United States.[9]The following mitigating factors appear to the Solicitor-General to be present. Osman was 18 years of age at the time of the commission of the attempted robberies, and 19 years of age at the time of the commission of the robbery. Hayir was 25 years of age at the time of the commission of the robbery.[10]Osman has, as we have indicated, a number of previous convictions. These include one offence of robbery and two offences of battery and one offence of possession of an offensive weapon. Hayir has no convictions or cautions in this country, but again, as we have already indicated, one conviction for armed robbery in the United States of America, for which he received a sentence of three years' imprisonment and was deported to this country.[11]The judge, when sentencing these two offenders, having recited the facts of the offence, said this in relation to the offence of robbery, at page 4E:
"Now, those are the brief facts of this matter. Anybody hearing those facts will realise why I say that, in many ways, it has the features - the worrying features - of an aggravated burglary; namely, somebody suffering in their own home, the terror of being robbed; threatened with serious violence and, threatened with a weapon. This offence seems to me to have that as an important aggravating feature. It also has the degree of violence I have described which is very frightening; not only the screwdriver but the poking of the eyes and, of course, the use of a weapon; that the screwdriver represents. The victim said that he found it a terrifying experience and I am sure he is right."
He went on to find that the dangerousness criteria for the purposes of imprisonment for public protection under the provisions of the 2003 Criminal Justice Act were not satisfied and there is no challenge to that finding by the Solicitor-General.[12]We have been referred by counsel for the Solicitor-General to a number of authorities. They consist of four references to this court by the Attorney-General. On the basis of these decisions it is submitted that for the offence of robbery the first sentence should have been in the region of six years. So far as the attempted robberies were concerned (which relate to Osman only) reference is made to the Sentencing Guidelines Council recommendations. It is submitted that so far as the May offence is concerned, which was more serious than the July offence, the appropriate sentence would have been in the region of three years' detention. So far as the July offence is concerned it is submitted that that is less serious and the appropriate sentence would have been in the region of 12 to 18 months.[13]On behalf of these offenders submissions are made by counsel. The essence of the submissions is that although the sentence passed by the judge was towards the lower end of the bracket, as it is put, the sentences were not unduly lenient. On behalf of Mr Osman Mr Requena submits that the offence of robbery was not sophisticated; it was not pre-planned, and he relies on the fact that no injury was caused to the victim. He submits that when judged by the facts of the authorities referred to by the Solicitor-General those decisions involved offences which were rather more serious than this offence. It is submitted -- and it is obviously right -- that the judge had heard all the evidence in the case. In that sense it is submitted that he was in the best possible position to assess the culpability of these two offenders. It is said, as we have said, that the final result so far as the sentences are concerned is that they were not unduly lenient.[14]On behalf of Hayir, Mr Hosking makes a number of submissions. He relies on the fact that although his client is older than Osman he is still, as is Osman, relatively young. It is submitted that this robbery was not a robbery by ruthless professional criminals; it had none of the hallmarks of a more serious robbery. Reliance is placed on the fact that Hayir had previously lived in the premises and there was no targeting of the victim. Mr Hosking submits that this has more of the hallmark of a street robbery, and he made reference to the Sentencing Guidelines recommendations in relation to street robberies for which the starting point is four years. He accepts that the bracket for the street robberies is between two to seven years. However, his submission is that when balancing both the aggravating and mitigating factors the sentence was, as we have said, not unduly lenient.[15]The offence of robbery involving both these young men and two others was, in our judgment, a serious robbery involving, as it did, an attack on a man in his own home. In our judgment, it has to be judged on that basis and not on the basis of a street robbery. A screwdriver was used as a weapon and Osman's use of his finger to gouge the eyes of Mr Sharmarke was particularly unpleasant. Fortunately Mr Sharmarke is a man of courage and fortitude. He escaped from his assailants and did his best to see that they were apprehended. A person of lesser fibre might well have suffered far more than he did.[16]Each of the offenders has a previous conviction for robbery. Osman was on bail for two robberies, and the judge had to deal with him in respect of those two robberies for which he had pleaded guilty. He also has, as has Hayir, a previous conviction for robbery.[17]We have considered the authorities placed before us and the most recent guidelines on robbery promulgated by the Guidelines Council. The figure of 13 to 16 years recommended by the Sentencing Guidelines Council, as the footnote shows, is based on cases which are a great deal more serious than this one.[18]The decisions of this court to which we have been referred suggests a first sentence for the robbery in this case of not less than six years, the figure for which the Solicitor-General contends. In our judgment it might have been more.[19]These authorities were all decided before the most recent Sentencing Guidelines for robbery in the home. As to that, in our judgment the bracket of 13 years does not seem to us to have any real relevance to the robbery with which we are concerned and robberies which are akin to it. It does, however, point to the serious view taken by the Guidelines Council generally in respect of robberies. As to the attempted robberies, the Sentencing Guidelines Council's guidelines indicate a sentence for Osman, taking into account his age, of considerably greater length than the sentences of six months passed by the judge concurrent.[20]Taking all the circumstances of these offences into account, the mitigating and aggravating factors, and the submissions made on behalf of Osman and Hayir, our conclusions are as follows. We have no doubt that the sentences passed by the judge were unduly lenient. For the sentence of robbery, as already indicated, we would have expected a sentence of at least six years. We see no reason to differ from the judge's conclusion that Osman and Hayir should receive the same sentence for this robbery. Allowing for double jeopardy, the proper sentence now for that offence in our judgment is five years. As for the attempted robberies, in our judgment the appropriate sentence on first sentence should have been two-and-a-half years for the main attempted robbery and the same for the July attempted robbery, bearing in mind it was, although less serious, committed when Osman was on bail for the earlier offence. Allowing for the elements of both totality and double jeopardy, we propose to reduce that figure of two-and-a-half years to 18 months concurrent but consecutive to the five years. Therefore, so far as Osman is concerned, the total is six-and-a-half years' detention. For the avoidance of doubt so far as Hayir is concerned the sentence is five years' imprisonment.