Purcell v R [2008] EWCA Crim 894

[2008] EWCA Crim 894Case No 200705140 A3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WOOLWICH CROWN COURT
HIS HONOUR JUDGE NORRIS
T20077141
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 29/04/2008
Before
LORD JUSTICE PILLMR JUSTICE BLAIRSIR RICHARD CURTIS
Between
PATRICK ANTHONY PURCELLAppellantRRespondent
Mr David Harounoff (instructed by Cook Taylor) for AppellantHearing Hearing date : 10 April 2008
JudgmentLord Justice Pill :
[1]Having pleaded guilty to one of the offences at an earlier hearing and another on re-arraignment on 14 August 2007, Patrick Anthony Purcell was sentenced at the Crown Court at Woolwich, before His Honour Judge Norris, to terms of imprisonment. For an offence of sexual assault contrary to Section 3 of the Sexual Offences Act 2003 he was sentenced to imprisonment for public protection. On a charge of robbery he was also sentenced to imprisonment for public protection. A period of 5½ years less 201 days spent on remand was specified as the minimum term to be served. Ancillary orders were made on the sexual offence.[2]Purcell appeals against sentence by leave of the full court.[3]On 14 July 2006, a 16 year old girl went with her mother to visit relatives at a caravan park in Greenwich. The appellant’s wife asked her to make a cup of tea and take it to the appellant in his caravan. He engaged her in general conversation and asked for her telephone number. When he started to undo his trousers she turned to leave the caravan. He took hold of her and started to kiss her. He squeezed her breasts over her shirt, threatened her and told her not to tell anyone.[4]On their way home, the girl told her mother what had happened and the police were contacted. The appellant made angry telephone calls to her mother. He was arrested the following day and, at interview, denied committing the offence.[5]At about midday on 18 December 2006, an 83 year old widow went to her front door when the doorbell rang. She opened the door slightly and the appellant pushed the door open with great force which knocked her over. He entered the house. She tried to escape but was dragged back inside. She was punched in the face at least 6 times, causing her to bleed heavily and leaving her face battered and bruised. The appellant abused her verbally and said: “If I don’t get any money, I will kill you”.[6]The appellant put on gloves and forced the victim’s hand behind her back thereby breaking her wrist. He took her to the bedroom and threw her on the bed. Having locked them both in the room, the appellant searched the room for money and left with £1,500 in cash. He was identified by DNA and, on arrest, declined to comment. The victim subsequently identified him as the robber.[7]Sentencing the appellant, the judge described both offences as serious and the second as a house robbery of the most appalling kind. On its own, the sexual offence required a custodial sentence.[8]The robbery was committed while on bail and was,

the judge said:

“An attack of the most cowardly, cruel and brutal kind. She [the victim] was a vulnerable elderly lady, a widow”
. The judge indicated that he would allow 20% discount for guilty plea on the sexual offence and 25% on the robbery.[9]Having correctly applied the statutory provisions, the judge stated that the appellant was to be regarded as a dangerous offender. He would make the sentences concurrent. Having regard to the Sentencing Council Guidelines and to decided cases, the total discounted determinate sentence would have been one of 11 years, giving a minimum period in custody of 5½ years.[10]The victim’s daughter informed the court of the serious effect of the robbery on the victim and her family. Her face is scarred and her wrist still very weak. Having been confident and independent, she is now very nervous and irritable and her activities are severely restricted even within the home. She has panic attacks and strongly dislikes being left alone so that the effect on other members of her family has been substantial.[11]The appellant is 38 years old and has a bad record. In 1997 he was sentenced to a term of imprisonment in the Republic of Ireland for an offence of rape of a 16 year old girl. Since he has been in this jurisdiction, the appellant has convictions for burglary of a dwelling house with intent to steal, theft, carrying offensive weapons, possession of Class A and B drugs, aggravated vehicle taking, handling stolen goods and driving while disqualified. Short sentences of imprisonment have been imposed on him. The judge noted that some remorse had been shown. We bear in mind also that there is no evidence to suggest that the victim’s house was targeted because of her age though the appellant was undoubtedly planning to enter and steal from dwelling houses and entered this one having observed that the occupant was elderly.[12]On behalf of the appellant, Mr Harounoff submits that imprisonment for public protection need not have been imposed but concentrated his submission on the length of the minimum term. We have no doubt that the judge’s assessment of dangerousness was appropriate and that imprisonment for public protection was rightly imposed.[13]Mr Harounoff has concentrated his submission on the decision of this court, Hooper LJ presiding, in Attorney General’s reference Nos. 38, 39 and 40 of 2007 (Crummack & Others) [2008] 1 Cr App R (S) 56. It was only during the hearing that reference was first made to the case and it was in order to consider it more fully that judgment was reserved.[14]The court in Crummack referred to the Definitive Guideline for robbery issued by the Sentencing Guidelines Council in July 2006. This deals with other forms of robbery but, in relation to “Violent personal robberies in the home,” it is stated:
“Relevant guidance from the Court of Appeal should be applied”
. In the text, having noted that this category overlaps with some cases of aggravated burglary, the Council stated:
“The sentencing range for robbery in the home involving physical violence is 13 to 16 years for a first time offender pleading not guilty. In this type of case, the starting point reflects the high level of violence, although it is clear that longer terms will be appropriate where extreme violence is used.”
[15]Reference is made in the Guideline to O’Driscoll (1986) 8 Cr App R (S) 121. In O’Driscoll, the defendant and another man gained access to the home of a man of 80, hit him with a number of blows with a hammer over the head, shoulders and leg. Having found his wallet, they held a lighted gas poker to his face and then tied the victim with wire and gagged him. The defendant was convicted of attempted burglary and causing grievous bodily harm with intent as well as robbery. The defendant had only one conviction for a serious offence, that of malicious wounding during a drunken brawl, for which he was fined. Giving the judgment of the court, upholding a sentence of 15 years imprisonment, Lord Lane, Chief Justice, stated, at page 122:
“Consequently it seems to us that in cases such as this nowadays, where thugs, because that is all they are, select as their victims old folk and attack them in their own homes and then torture them—that is what happened here—in order to try to make them hand over their valuables in this savage fashion, then this sort of sentence, whatever might have happened in the past, will be the sort of sentence that they can expect. One hopes that that, in so far as lies in the power of this Court, may have some effect in protecting these old folk from this sort of savage, sadistic, cruel and greedy attacks.”
O’Driscoll has been referred to and described in later cases as a guideline case and, with respect, the Sentencing Guidelines Council was entitled to rely on it in the way it did.[16]In Crummack, the court considered a number of dwelling house robberies in which substantially lower sentences had been imposed (Attorney General’s reference No. 48 of 2000 (Martin Clive Johnson)(2001) 1 Cr App R (S) 123, Attorney General’s reference No.34 of 2003 (Dean Poyner) (2004) 1 Cr App R (S) 71, and Attorney General’s reference No. 4 of 2004 (Joseph Green) (2005) 1 Cr App R (S) 23. Reference can readily be made to them in the judgment in Crummack and we do not propose to repeat the facts in detail. Aggravating features were present but in none of the cases was a starting point above 10 years thought to be appropriate. Those cases do demonstrate a wider bracket than that contemplated in the Guideline.[17]In Crummack, the court stated that the Sentencing Guidelines Council, when stating the range of 13 to 16 years, “had in mind much more serious robberies than these”. The robberies in Crummack were less serious in that the flat was occupied by two people, the older of whom was 67, that is much younger than the victim in the present case. The actual violence used was very limited in nature as well as duration and as soon as the victim fought back (as he was well able to do) the defendants fled the premises. While threats were used, only one punch was thrown though tragically, it led to the death of the victim. A manslaughter count against one of the defendants was dealt with separately and a sentence of 5 years detention concurrent imposed on the perpetrator, aged 20. As to the robbery, the first defendant, aged 30 had a bad record including a conviction for attempted robbery.[18]By reference to the Guideline, the court stated, at paragraph 17:
“We ask the question then: "Did the Council intend that robberies of the kind which would not attract sentences of 13 to 16 years fall within categories 1 to 3?" The answer to that question must be "no". We give that answer because the list of additional aggravating factors for category 1 to 3 robberies at pages 11 and 12 of the Guideline does not include the aggravating factor of the robbery being within a person's home. That said, it is of value to see what would have been the appropriate sentence for these robberies if committed in the street by a person who has no previous convictions and who is convicted after a trial. If one goes to page 11 of the Council Guideline, this would have been a level 2 robbery. Taking into account all the circumstances of these robberies, but assuming for the moment that they were on a street, it seems to us thatthe appropriate sentence, after a trial for a person with no previous convictions, would be in the region of five and a half years. The fact that a robbery is committed in someone's home is clearly a very important factor which could increase the sentence. Putting on one side the authorities, we take the view that an additional two years, or possibly a little more, would be appropriate for a robbery of this kind to reflect the fact that it was committed in someone's home, entry having been gained, as it was in this case, by subterfuge as opposed to force.”
[19]We do respectfully question whether in all cases the appropriate approach to violent personal robberies in the home is to take the appropriate level for a street robbery, or “mugging,” and to transpose it into the home, with the addition of two years. The circumstances in the present case were significantly more serious than those in Crummack. Violent robberies in the home are in a different category with a seriousness of their own arising from the fundamental respect due to the sanctity of a person’s life in her home, as recognised by article 8 of the European Convention on Human Rights. Where the case involves the elderly, a feature can be, and in the present case is, the severe impact on the victim, whose independent way of living is effectively brought to an end, and on the victim’s family, who have to care for the victim thereafter.[20]The court stated, at paragraph 31:
“In our view, the appropriate sentence for all three offenders after a trial, given their individual aggravating circumstances, was in the region of eight to eight and a half years. The sentences of two years six months and two years nine months were unduly lenient. Taking into account the early pleas and reducing the sentences by a small amount to reflect the aspect of double jeopardy, we substitute sentences of five years' imprisonment concurrent . . .”
Mr Harounoff, of course, relies on the substantial difference between that sentence and the bracket of 13 to 16 years mentioned in the Guideline. Relying on Crummack, he submits that the determinate sentence of 11 years, which having regard to the discount for plea, contemplated gave a starting point of 14 to 15 years, was too high.[21]In other comparatively recent cases, a starting point consistent with O’Driscoll has been adopted. In Dunn [2002] 1 Cr App R (S) 23, the court cited O’Driscoll as illustrating “the principles to be applied in this sort of case” and upheld a sentence of 10 years, on guilty pleas, where 2 robberies were committed in dwelling houses, one in a house occupied by a couple aged 78 and 86. The court stated:
“Here there were two attacks on elderly people in their homes in the middle of the night, the later attack within hours of the first in circumstances which must have terrified the victims.”
[22]In Marcus [2004] 1 Cr App R (S) 41, O’Driscoll was relied on. The defendant had pleaded guilty to wounding with intent to cause grievous bodily harm, unlawful wounding and two counts of robbery, one on each occupant. He broke into the home of a couple aged 84 and 86. The defendant attacked the male occupant using keys as a knuckle-duster. He also punched and kicked the female occupant. The court stated:
“We bear in mind the nature of the injuries caused, which, while they were not permanent in their nature, did involve very extensive bruising and grazing to the face. In our judgment to allow properly for the pleas of guilty the total sentence in this case should have been one of 12 years.”
[23]In Hunter [2005] 2 Cr App R (S) 36, the defendant pleaded guilty to two counts of burglary and one of aggravated burglary. He entered three houses, each occupied by people over 80. The defendant gained access to the home of a woman aged 81 by asking whether he could use the toilet. He went upstairs and later left taking property worth £6,000 with him. He broke into a flat occupied by a man aged 85 and his wife, who was also elderly. He was armed with a hammer, threatened the man with violence and demanded money. On the third occasion, the defendant broke into the home of a woman aged 81, grabbed a box under her bed and ran away. Consecutive sentences totalling 12½ years, plus return to custody for 240 days in respect of an earlier sentence were imposed. This court reduced the total sentence to 10½ years, plus the 240 days. We bear in mind that three offences were involved, though, in none of them, were the circumstances as grave as in the present case.[24]In cases such as the present, the overall seriousness does not appear to us normally to depend on whether charges are laid by way of robbery, burglary or offences against the person. Features of all three potential offences were present in the appellant’s case, and each to a considerable degree.[25]In our judgment the judge was entitled to take a starting point, in a case more serious than Crummack, within, though not at the top of, the bracket contemplated by the Sentencing Guidelines Council. The appellant was of mature years and had a bad record. There was an element of persistence and the physical injuries were considerable. The impact on the victim was very substantial and the appellant must have been aware that it was likely to be. The offence was committed while on bail. Subject to the principle of totality, a consecutive custodial sentence for the sexual offence would have been appropriate. In not making the sentence for the sexual offence consecutive, the judge undoubtedly had that principle in mind.[26]This was a severe sentence but, for the reasons stated by Lord Lane Chief Justice in O’Driscoll and reflected in more recent cases, severity is justified in such circumstances. We have come to the conclusion that the overall sentence imposed by the judge was not manifestly excessive. We uphold the minimum period imposed, and, because a term was not stated, we impose a 6 month concurrent minimum term for the sexual offence.[27]For those reasons, the appeal is dismissed.

Cited in 2 later judgments