Attorney General's Reference Nos. 60 of 2008 [2008] EWCA Crim 2695

Case No 2008/04893/A1

[2008] EWCA Crim 2695

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Thursday 6 November 2008

Between

R E G I N ACrown

The Strand

London WC2

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

(Lord Judge)

MRS JUSTICE SWIFT DBE

and

MR JUSTICE MADDISON

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ATTORNEY GENERAL'S REFERENCE Nos. 60 of 2008

UNDER SECTION 36 OF

THE CRIMINAL JUSTICE ACT 1988

_______________

- v -

Between

DANIEL ALEX CALVIN GORDON

__________________

Computer Aided Transcription by

Wordwave International Ltd (a Merrill Communications Company)

190 Fleet Street, London EC4A

Telephone No: 020-7421 4040

(Official Shorthand Writers to the Court)

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Mr P Wright QC appeared for Attorney General

Mr M Jackson appeared for Offender

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J U D G M E N T

THE LORD CHIEF JUSTICE:

[1]This is an application by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court for review a sentence imposed at Birmingham Crown Court (sitting at Coventry) on 14 August 2008 by Her Honour Judge Fisher. We grant leave.

[2]The offender is Daniel Gordon. He is 22 years old. He has previous criminal convictions. On 25 January 2008, in the Crown Court at Birmingham, he pleaded guilty to offences of robbery and possessing an imitation firearm at the time of committing an offence. He pleaded not guilty to a related offence of sexual assault. That matter was adjourned for trial. We are told by counsel on the offender's behalf, and we accept, that it was made clear at a very early stage in the proceedings that the victim of the sexual assault and the witness who would have supported her account were not required to give evidence.

[3]On 16 June 2008, when the matter was listed for trial, the offender pleaded guilty to sexual assault. Sentence upon him in respect of all the offences was adjourned for the preparation of a pre-sentence report.

[4]In the meantime, the trial of his accomplice, whose part in the offences will be described shortly in the judgment, proceeded before Her Honour Judge Fisher. In due course he was acquitted by the jury.

[5]On 14 August 2008 the offender was sentenced on count 1 (robbery) to four years' imprisonment, on count 2 (possession of an imitation firearm) to two and a half years' imprisonment, and on count 3 (sexual assault) to three years' imprisonment. All the sentences were ordered to run concurrently, making a total of four years' imprisonment. An order was made that the time spent in custody on remand should count towards the sentence. The offender was placed on the Sex Offenders Register.

[6]Whether this offence is described as robbery or burglary, it was an offence of grave seriousness. It amounted to every home owner's nightmare: two women in the sanctuary of their home were defenceless against violent men.

[7]On the evening of 22 October 2007, in a bungalow situated in a quiet cul-de-sac in a residential area in Birmingham, a family were going about their ordinary business. At 7.20pm the father and teenage son left home to go about their entertainment for the evening. Their departure left mother and daughter alone together. The daughter was in her bedroom studying. The mother was in the kitchen preparing food.

[8]Unfortunately, the offender and an accomplice were nearby. Within minutes of the departure of the father and the son, they entered the premises through an open window. They made their way into the kitchen and there disturbed the mother. Both men had taken steps to disguise their appearance. That is a significant feature in the context of the offender's assertion that he believed that the property was empty. The accomplice had a hat on his head and a neckerchief concealing his face. The offender had fastened a jumper over his head and around his face and neck to conceal his appearance. The accomplice was armed with an imitation handgun 10-12 inches in length. The offender picked up from the kitchen work surface and armed himself with a knife which had a blade of approximately 4 inches in length.

[9]The mother underwent a prolonged ordeal. The imitation firearm was pointed at her forehead and she was threatened with the knife. The intruders demanded money from a safe which they believed was to be found somewhere within the home. They forced the mother into her bedroom and began to ransack the premises, demanding items of value. During the search the offender used his mobile phone to contact an accomplice. The conversation was about money within the premises. The intruders both repeatedly demanded to know the whereabouts of the safe. The mother was struck in the face by the accomplice. The force of the blow caused her glasses to be dislodged and her to fall onto the bed. On each occasion when she denied that there was a safe in the property she was struck by the accomplice. The offender pulled back the covers of the bed and told her to get into it. During the attack he yanked a gold chain and pendent from her neck. He used a knife to attempt to remove a ring from her wedding finger. Her finger was cut and there was a further demand to hand it over which, unsurprisingly, she did. The offender then demanded that she hand over the Rolex watch from her wrist, which again she did. The bedroom was searched. Money was stolen as and when it was found. The drawers and personal effects within the bedroom were strewn about. The intruders repeatedly asked as to the whereabouts of the safe. The mother steadfastly maintained that there was no safe.

[10]The disturbance was overheard by the daughter. She went to investigate. As she approached her mother's bedroom she saw two masked men. She could hear her mother screaming in distress. She immediately returned to her room and, with great presence of mind, she called the police on her mobile phone. We have seen a transcript of the 999 call made by her. It shows a huge amount of screaming and a number of threats, all overheard down the telephone line revealing what was going on in the bedroom as the mother was at the mercy of the intruders.

[11]The accomplice threatened to throw hot food over the mother. He went to the kitchen. He returned with a container of food she had prepared earlier that evening and threw the contents over her. Fortunately, the food was cool and did not cause any physical harm.

[12]The accomplice then went to the daughter's bedroom. He forced open the door, causing damage to it in the process. Once inside the bedroom he threatened the daughter with the firearm. He punched her in the mouth with his fist so violently that a front tooth was knocked out and a second tooth was dislodged.

[13]In the meantime, the offender continued to demand to know the whereabouts of the safe. The daughter protested that there was no such item. The accomplice ransacked the daughter's bedroom. She indicated that the only money available was in a small religious temple located in the corridor. It contained offerings and items of importance to the family's religious belief. The accomplice disturbed the temple. He then forced the daughter into her mother's bedroom where the mother was detained by the offender.

[14]The offender brandished the knife at the daughter, grabbed her by the top of her clothes and demanded that she show him her jewellery. He ordered her to remove her top. He intimated that he would assault her sexually unless she complied with their demands for cash. The offender enquired as to whether there were any condoms within the house. That was a plain threat of sexual violence to persuade her, and no less to persuade her mother, to give the intruders the information that they were seeking. He then used the knife to slit the daughter's top before she was compelled to remove it. The removal of her top left her naked from the waist upwards. The offender held the knife towards her left breast, touched it with his hand and also with the edge of the knife. Unsurprisingly, she thought she was about to be sexually assaulted and indeed mutilated.

[15]Fortunately the offender's mobile telephone rang. The call was plainly from another accomplice who was keeping watch. What was said is unknown. However, there was a police response to the 999 call made a few minutes earlier by the daughter. The offender reacted frantically to the telephone call and became very agitated. It appeared to the mother that the offender was being told to leave the premises. The offender ushered the mother and daughter out of the bedroom. As they were ushered out through the premises they saw an opportunity to make their escape. The two women ran out of the house and down the drive. The daughter was still half naked. Both women, unsurprisingly, were in considerable distress.

[16]Officers, who had arrived at the cul-de-sac, were in the process of approaching the premises as the two women made their escape. The offender was detained as he ran from the premises. He was caught red-handed.

[17]The women were taken to hospital to receive treatment. The whole incident had lasted something like half an hour. The mother sustained a black eye, swelling to her cheek, finger-mark bruises to the side of her jaw, a slight cut to the index finger of her left hand where the knife had been used to obtain the ring, and an injury to her back that was painful to the touch. Her daughter had sustained an avulsion of one tooth and a partial avulsion of a further tooth. Treatment was complicated because the avulsion of the front tooth was accompanied by the complete removal of the root. There were lacerations within her mouth and gum which were sutured. Nerve root treatment was required to both damaged teeth and she may require implants.

[18]A search of the offender revealed jewellery, cash, a Rolex watch and the ring.

[19]The accomplice made good his escape.

[20]When the offender was interviewed he said that he had been informed that there was £65,000 in cash in the bungalow contained in a safe. That information had come to him in a telephone call made earlier that evening. He then met up with the accomplice who entered the premises with him. He did not name that man. Another man was also involved. He said that they had seen the husband and son leave and they therefore believed that the premises would be unoccupied. He admitted entry through an insecure window. He asserted that while in the bathroom his accomplice produced a handgun; prior to its production he did not know that his accomplice was armed. However, he admitted arming himself with a knife in the kitchen. He asserted that he did so in order to take control of a chaotic situation. He admitted that he had implied to the mother that the daughter would be sexually assaulted unless the women complied with his demands. He said that he had had no intention of carrying out a sexual assault; he had merely acted in such a way to persuade her to divulge the whereabouts of any cash that was located in the premises.

[21]The offender has a number of previous convictions. Of significance, in February 2004, at Birmingham Juvenile Court, he was convicted of robbery. The facts of that offence were that the offender approached the victim and a friend and demanded money. When the victim refused, the offender produced an ice pick, pushed it into the victim's stomach and said, "Do you want to get stabbed?" The victim allowed the offender to take his wallet. On 4 August 2004, at Birmingham Magistrates Court, he was again convicted of robbery the particulars of which were that outside a pharmacy in Handsworth the offender ran up towards the female victim (who was known to him). He punched her several times to the face. The injuries included swelling to the right side of her face and swelling and a cut to her right eye. In October 2004, at Birmingham Magistrates' Court, he was convicted of common assault, the particulars of which were that, following an altercation in the street, the offender grabbed the victim by the throat, causing injury to the victim's neck.

[22]Although there are no victim impact statements, the witness statements from the complainants refer to the profound and lasting effect that the offences have had on them and their loss of the sense of security which they are entitled to feel in their own home. By way of illustration the daughter says:

"These two men have changed my life as a result of what happened. I can't even look at my dad now. I was building up my confidence at university. Now that has shattered. They have destroyed me. I don't know how I can go back to my house. I close my eyes and I see everything I have described. I am scared to go out. I thought he was going to kill me." 23. "

I felt scared that they were going to shoot us or stab us, as every time I said we did not have the safe or money, they were getting angrier. .... 24. I do not know how .... I will feel in the future .... I am scared .... I don't want my daughter to have to go home. I don't even want to go back in my bedroom."

[23]A pre-sentence report was prepared on the offender. It is worth noting how he described his involvement in this offence to its author:

"Mr Gordon describes receiving a telephone call at approximately 6pm on 22 October 2007 from an unknown associate, informing him that there was £65,000 in an empty property in the Handsworth area. Mr Gordon stated that he subsequently met a further unknown associate at the premises, where he stated that he intended to commit a burglary. On arrival, Crown Prosecution Service papers suggest that Mr Gordon waited outside the premises until the father and son had left the scene, believing that the property was empty. Mr Gordon explained that he and his co-defendant entered the victims' property via a bathroom window at approximately 7.30. Mr Gordon informed me that it was at this point he realised his co-defendant had a firearm in his possession."

Having summarised the facts of the offence, the author concluded that the offender posed a high risk of harm to the general public. The current victims were strangers. They were subjected to a "serious" robbery and sexual assault on the basis of financial gain. The author acknowledged the ongoing risk of emotional harm to the victims. The nature of the risks that the offender posed were described as emotional, physical and sexual assault. The author referred to a psychiatric report and concluded that it would be more beneficial for the offender to be sentenced to a determinate sentence appropriate to the seriousness of the offence, although he drew attention to the fact that the information given to the offender about the possibility of imprisonment for public protection might deter him from further offending.

[24]In a report dated 28 February 2008 the Consultant Psychiatrist states:

"[The offender] comes across as a surprisingly normal, affable, likeable lad, young and immature .... This seems a paradox. He also does not seem to take the current allegation quite as seriously as might be expected .... as if his ability to evaluate risk is not quite right, for some reason. At interview, he does not appear at all dangerous. He appears immature, but affable, warm and friendly. He may have been easily influenced by his peers, a lack of adequate thinking skills, or by cultural factors, but he does not present as a dangerous, or aggressive individual."

That view is repeated in a second report in which the psychiatrist again records that the offender "appears a very pleasant, affable, warm character, and does not appear as an aggressive, psychopathic personality". Accordingly, in the opinion of the psychiatrist, the offender did not present a significant risk of serious harm to the public.

[25]The material before the sentencing judge included a letter of apology written by the offender in which he expresses remorse for his offence and apologises to the victims of it.

[26]It is to the offender's credit that he pleaded guilty to robbery and the associated offence of being involved with an accomplice who carried an imitation firearm, and that he did so at the earliest possible opportunity. On the other hand, he was caught red-handed at the scene with property from the premises in his possession. He pleaded not guilty to the sexual offence. Although it was made clear that it was unnecessary for the proper conduct of the defence to that count for the victim or her mother to be called as witnesses, the offender maintained this plea until the day of the trial. In all these circumstances we disagree with the conclusion of the sentencing judge that the offender was entitled to full credit for his plea. He was entitled to some credit, but not the one-third credit which is normally regarded as the full amount of credit to be allowed for this purpose.

[27]In passing sentence the judge described the offence as "horrific". She noted that its effect would be borne by the victims for the rest of their lives. She said that she was conscious of the fact that the offender was the only one of those involved in this attack who fell to be sentenced. She accepted that the offender may not have appreciated that his accomplice was armed, but she recorded that this was a premeditated offence. She accepted that he entered the premises thinking that they would be empty. She bore in mind that the offender was still a young man -- 21 at the material time -- and that, although he had previous findings of guilt and convictions, it was the first occasion when he had to face a substantial prison sentence. She then described the frank way in which the offender had approached his interview with the author of the pre-sentence report and the two reports from the consultant psychiatrist. She accepted the assessment that the offender was immature. Having expressed the hope that the offender would take advantage of educational facilities in prison, she imposed the sentence we have outlined.

[28]In our judgment that sentence was significantly unduly lenient. We acknowledge that the offender expressed remorse and that he is young and apparently immature. Although he is still young, we cannot overlook the fact that this is not the first occasion when he has used physical violence, and indeed physical violence to a woman. However, from our reading of the papers we consider that he is manipulative as well as immature. We are not sure how genuine his expressions of remorse are; whether he has any real insight into the impact of his crime on the victims or whether he is simply remorseful at the situation in which he has found himself and anxious to put himself in as good a position as possible.

[29]We do not accept the offender's version of how he became involved in the crime. We are asked to believe that an unknown associate telephoned him and told him that there was £65,000 in an empty property. We ask rhetorically: why should an unknown associate give him such information? Why should anyone leave £65,000 in an empty property? Why should the offender believe such information if his informant was completely unknown to him? We are told that the offender then entered the premises with another unknown associate. That may have been the same unknown man who had made the telephone call, but the implication of what the offender told the author of the pre-sentence report was that it was another, different unknown associate. We ask rhetorically: is it likely that two unknown associates involved the offender so as to enable him to have a share of £65,000 which was being kept in empty premises? It is, in reality, too far-fetched. It is said that the property was empty. The lights of the house must have been on because the mother was going about her business in the kitchen and the daughter was studying in her bedroom. If it was thought that the property was empty, why was there any need to wear any sort of disguise?

[30]The sentencing judge was prepared to deal with the case (and we do not feel justified to contradict her view) on the basis that it was not until the offender entered the property that he realised that his accomplice had a firearm in his possession. However, it was to the offender and not to the accomplice that the warning telephone call was made. We are asked to believe that the offender knew nothing of the identity of the unknown accomplice who was keeping look-out.

[31]We are singularly unimpressed, and certainly much less than some of those who have dealt with the offender, with the suggestion that he is a warm, affable young man. That no doubt is a convenient front which he is able to produce as and when needed. There was nothing affable and warm about his behaviour on this night, nor, indeed, when he committed the earlier offences. We suggest that the offender's ability to convey affability and warmth needs to be carefully taken into account whenever the date of his release is considered.

[32]In our judgment this was a very serious offence of its kind. At least three people were involved in a planned burglary of someone's home. Two of them entered quite deliberately after the two men of the house had gone out. One of the intruders carried an imitation firearm. The other (the offender) picked up a fearful knife and carried it throughout the protracted ordeal which the victims underwent and during the prolonged attack on the premises. We focus on the two aspects of the offender's behaviour for which it is impossible for him to be other than wholly responsible. He used the knife to try to remove the ring from the mother's finger. That was an act of extreme callousness. Worse, he used the knife to cut away the clothing on the top part of the daughter's body. He held the knife towards her breast and touched it with its edge. His purpose was to force the mother or the daughter to tell him what he wanted to know. Those were not the actions of the accomplice; they were the actions of the offender and his alone. His actions led the daughter to believe, with every justification, that she would be sexually assaulted and possibly mutilated. These actions are set out in the our summary of the facts. Two women were subjected by way of joint enterprise to gratuitous violence. The premises were ransacked. It was burglary or robbery (in truth it was both) of the most serious kind.

[33]We are satisfied that the offender represents a danger to the public. The risks which he poses well qualify him for an order of imprisonment for public protection. That question was not directly addressed by the sentencing judge. At the time when the offences were committed, the statutory assumptions of dangerousness would have applied. At the date of sentence the entire matter was open to the judgment of the court. We have exercised our own judgment on the facts of this case in the context of the offender's behaviour, the offences he committed on this occasion and his previous convictions. We reject the suggestions in the psychiatric report as wholly unfounded.

[34]We acknowledge that the judge presided over the trial of the accomplice and so she had a much greater insight into the features and facts of the case than we have from the papers. But nothing in her sentencing observations suggested that the trial had revealed to her features of the case which might have compelled her to impose a much more merciful sentence than would otherwise have been appropriate.

[35]In our judgment there should have been, and there will now be, an order of imprisonment for public protection. This is a clear and obvious case for such an order. We conclude that the determinate sentence of four years' imprisonment was wholly inadequate. We have considered the relevant Sentencing Guidelines Council's guidance. Rather than pass consecutive sentences to allow, for example, for the carrying of the imitation firearm by the accomplice, we consider that the right approach is to take an overall view of this criminality. Even allowing for the guilty plea and the appropriate reduction, and allowing too for the comparative youth of the offender, in our judgment the determinate sentence should not have been less than ten years' imprisonment.

[36]If we had been dealing with this case by way of determinate sentences, the sentences would have been ten years, five years and five years' imprisonment on each count, to run concurrently. However, having made an order of imprisonment for public protection, we make it clear that the notional minimum term which must be served in custody before the release of this offender can begin to be considered is one of five years' imprisonment. This will be the sentence on count 1. Time spent in custody to date will count towards that time.

[37]Nothing should be reported of this case which would identify the victim of the sexual assault. ________________________________