Venue Royal Courts of JusticeDate Wednesday, 1 July 2009
Strand
London, WC2A 2LL
B e f o r e:
LADY JUSTICE HALLETT DBE
MR JUSTICE JACK
MR JUSTICE BLAKE
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL'S REFERENCE NO 10 & 11 OF 2009
Computer Aided Transcript of the Stenograph Notes of
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Mr C Tehrani appeared on behalf of the Attorney General
Mr J Lucas appeared on behalf of the Offender Rooney
Mr R Keene appeared on behalf of the Offender O'Connor
J U D G M E N T
[31]He added:
"We do not propose that that should be regarded as a tariff set in stone, but it is the broad appropriate level to be gathered from the previous cases and, by analogy, from the general shape of the guidelines."
[32]In that case a sentence of three years' imprisonment, passed after a trial for a young man of 18 with some convictions but not convictions of this kind, for two offences of robbery of elderly people in their own homes, was held to be unduly lenient. The sentence of three years was quashed and one of four-and-a-half years substituted. 33 Mr Tehrani also referred us to R v Saw and others [2009] EWCA Crim. 1. Saw was concerned with offences of burglary. However, Mr Tehrani pointed out that where offenders enter the homes of others with the intent to steal, even where there is no actual violence or threat of violence of the kind we have here, the judgment in Saw suggests that the starting point for this kind of offence should have been considerably higher. 34 Mr Lucas on behalf of the first offender invited us to bear in mind that he is still a relatively young man who has a young wife (who has taken the trouble to come to court today) and young children. He properly reminded the court that the trial judge was well placed to assess the criminality of the offender and the man himself. He saw and heard the offender give evidence. He also repeated something that members of this court have been known to say on a number of occasions: “guidelines are only guidelines” and argued we should be slow to interfere with the decision of an experienced trial judge. He invited the court to note the progress that the first offender has made in prison and argued that even if this court were to increase the sentence the first offender is not going to come out of prison a better person. We were told that the first offender is very anxious about the results of today's proceedings and very concerned that his sentence will be increased. 35 For the second offender, Mr Keene suggested that the level of discount for his plea of guilty should be at or close to the maximum because of the stage in the proceedings at which he had indicated his willingness to plead guilty on a basis which was eventually accepted by the Crown. Mr Keene reminded the court of the second offender's basis of plea which included the fact that he played no part in the actual violence. On that note we observe the second offender may not have played any part in the actual violence, but he was a knowing and willing party to the conspiracy and the robberies included violence or threats of violence to elderly people in their own homes. Further, Mr Keene argued that many of the aggravating features put before us by Mr Tehrani are virtually inevitable in cases of distraction burglaries or similar offences. The occupants are bound to be present. They are likely to be vulnerable. 36 Mr Keene also invited the court to note that the second offender is still only a young man. He is doing apparently extremely well in prison and given his lack of offending before 2003 there may be good reason to hope that on his release he can continue his efforts at rehabilitation. We were also reminded that the substantive offences were limited to two days for the first offender and one day for the second, albeit we note there were overt acts suggesting the conspiracy continued on a third day. 5. "We wish to stress that attacks on elderly people in their own homes are particularly despicable and will be regarded by the court as deserving of severe punishment. Elderly victims living alone are vulnerable, not only because of the lack of assistance but also because of their own weakness and isolation. Any attack on such a person is cowardly and can only be expected to be visited with a very severe punishment indeed." 38 To our mind these sentences fall far short of severe punishment. It is unarguable that the sentences were too low. We give leave to refer them. The level of violence, it is true, may not have been as great as in some of the decisions put before us, but this is partly because old people were targeted and a great deal of violence was not required for the robbers to get their way. The robbers needed, for the most part, simply to threaten and terrify their victims into submission. Similarly, although we accept the level of physical harm caused may not have been as great as in some of the decisions put before us, for most of the victims who were subject to clear robberies, as opposed to an offence akin to a distraction burglary, the psychological effects were enormous. It is not overstating the position to say that, given the age of these victims, the consequences could have been fatal. 39 We shall not repeat the aggravating features put before us by Mr Tehrani. Suffice it to say we agree with each and every one of them. We have taken into account the mitigating features relied upon, in particular of course the fact that the second offender is a young man who has pleaded guilty. 40 Our review of the authorities leads us to the conclusion that for a catalogue of offences as encompassed in the conspiracy to rob, with the number of aggravating features present here, one would have expected a sentence in double figures following a contested trial. Accordingly, we quash the sentence of five years for the first offender and substitute for it a sentence of 10 years which in our view is the least sentence that we can impose. For the second offender we quash the sentence of three years and substitute for it a sentence of six years' imprisonment.