Hada, R. v [2017] EWCA Crim 1348

[2017] EWCA Crim 1348

Case No 201702778/A4

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Friday, 18 August 2017

Strand

London, WC2A 2LL

B e f o r e:

MR JUSTICE SWEENEY

MR JUSTICE HOLROYDE

Between

R E G I N ACrown

Between

ERIK HADA

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Mr R Jepson (Solicitor Advocate) appeared for Appellant

J U D G M E N T (Approved)

[1]MR JUSTICE HOLROYDE: On 9th June 2017, in the Crown Court at Sheffield, this appellant was sentenced to a total term of six-and-a-half years' detention, under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000, for three offences of robbery and one offence of possessing an imitation firearm at the time of arrest for an offence.

[2]He now appeals against his sentence by leave of the single judge. We are grateful to Mr Jepson for his written and oral submissions on the appellant's behalf.

[3]It is necessary to set the present offending in its context. The appellant was born on 28th November 1999 and so is still under 18. Regrettably, he started offending at a young age, being convicted of comparatively minor offences when he was only 12. In May 2013 he was made subject to a youth referral order for two offences of robbery, committed shortly before and a few months after his 13th birthday. He made further court appearances in 2014.

[4]The present offending began in November 2015. A few days before his 16th birthday he committed two offences of robbery, the first late on the night of 22nd November and the second into the early hours of the morning of 23rd November. Those offences were charged on counts 1 and 2 of indictment T20167351. In each case the appellant acted jointly with three others, all of whom were significantly older than him, being 18 or 19.

[5]The victim of count 1 was making his way home from work at around 10.00 pm. One of the offenders approached him and asked for a cigarette. Others, including the appellant, then moved in and blocked the victim's departure. He was held from behind, put to the ground and punched and kicked. His bag, containing a few items of no great monetary value, was stolen. Unsurprisingly the victim was very frightened at the time and fearful about his regular need to leave his place of work and take the same route home late at night.

[6]The victim of count 2 was a man aged 71. He was waiting at a bus station at around 1.30 am for a late night coach. He left the bus station to look for somewhere to relieve himself. He was then approached by the four offenders. They demanded his money, threatening to hurt him if he did not hand it over. He complied. The offenders took £130 from his wallet and his camera. He was in fear of being hurt and indicated in a statement that since this offence he had avoided places where he would not be amongst a large crowd.

[7]The appellant and others were arrested on the following day, having been identified from CCTV footage. A long period then followed when the appellant was subject to police bail. He was not charged with those two offences until after he had committed the further offences on 25th May 2016, which became the subject of committal for sentence S20160659.

[8]Again, the appellant was in company with three older companions. It seems that they spotted two young men in the street and noticed that a time came when one of those two was left alone. One of the other offenders gave his hood to the appellant to wear. Another passed to the appellant a BB gun. The appellant then approached the victim with the hood covering his head and a scarf around his face. He pulled out the gun, pointed it at the victim of the offence and said that he would kill him if he did not hand over his money and phone. The victim complied.

[9]There was no victim impact statement from that young man. He did not wish to be further involved in the proceedings.

[10]The appellant and others were arrested. Initially the appellant denied any knowledge of the offences. Within a short time however, having been shown the CCTV footage, he admitted that he was the robber with the gun. He said he had been told what to do by one of his older companions and had been required to hand over the proceeds of robbery to that person.

[11]On 30th August 2016 the appellant appeared before the Youth Court for those later offences. He pleaded guilty and he was committed to the Crown Court for sentence.

[12]On 20th September 2016 he came before the Crown Court charged on the indictment with the earlier offences. He was jointly charged with others. He pleaded guilty to count 1. At that stage he pleaded not guilty to count 2. The matter was adjourned for trial but soon thereafter the appellant pleaded guilty to count 2.

[13]His sentencing was adjourned to await the trial of others. One of the adult co-accused was later convicted and sentenced to 6 years' imprisonment. Another absconded but was convicted in his absence, but so far as we are aware has not yet been sentenced.

[14]This appellant was sentenced, as we have said, on 9th June 2017. That was more than 18 months after he had committed the earlier offences and more than a year after he had committed the later offences. There were before the court a pre-sentence report and other reports and letters offered in support of the appellant by a number of the officers who have the care of him at a detention centre. All this material before the court showed that a great deal had changed in the period since the commission of the offences. When he was first admitted to a secure training centre the appellant's educational attainments were assessed as equivalent to those of a boy of 10 or 11. But whilst in custody he has consistently done well with his education. He has consistently achieved full marks and he is now studying for his GCSEs. Whilst in custody he is said to have been exceptionally well behaved. Within a short time he was promoted to the highest level of privileges and he has maintained that status ever since.

[15]In the assessment of those who have the care and custody of him he presents as quite a vulnerable young man. On one occasion he was the victim of a wholly unprovoked attack by other inmates. He is regarded as someone who, certainly when younger, was easily influenced. It is perhaps significant that his highly supportive parents have resolved to move the family home to a different area to try to keep the appellant away from undesirable influences. Finally, we should mention the very clear expressions of remorse which the appellant has put before the court.

[16]In terms of the sentencing guidelines for robbery offences, committed by an adult, the learned judge assessed the earlier offences as falling within Category 2B. He assessed the later offence of robbery as lying on the cusp of categories 1A and 2A, on the basis of the drawing an inference that the victim of that third robbery must have suffered serious psychological harm when he was accosted by a masked stranger pointing a gun at him.

[17]The judge rightly observed that the offending was so serious that only an immediate custodial sentence would suffice. Mr Jepson does not challenge that proposition at all. The learned judge referred to the need to observe the principle of totality. Again, Mr Jepson does not argue against that, and indeed emphasises the importance of that principle.

[18]The learned

judge then said this at page 1D of his sentencing remarks:

"I reduce the starting point because of your age, but only by one-third because of your two previous robberies."

The judge went on to allow full credit for the guilty pleas.

[19]He imposed the following sentences of detention: count 1, 2 years; count 2, 18 months consecutive; count 3, 3 years consecutive. Thus he reached the total of six-and-a-half years' detention to which we have referred. He directed that 197 days, comprising time on remand and time subject to a qualifying curfew should count towards the total sentence.

[20]In his grounds of appeal Mr Jepson accepts that, in terms of the adult guideline, the earlier two robberies were category 2B, with a starting point of 4 years' custody and a sentencing range from 3 to 6 years. However, he challenges the judge's assessment of the third robbery. Category 1A has an adult starting point of 8 years' custody and a range of 7 to 12 years. Category 2A has a starting point of 5 years and a range of 4 to 8. Thus the difference between the two is considerable.

[21]Frightening though the incident must have been, Mr Jepson makes the simple submission that in the absence of any evidence at all from the victim of that offence the learned judge could not properly draw an inference that the victim must have suffered serious psychological harm, a factor relevant to placing the offence in category 1A. Mr Jepson goes on to submit that the learned judge was wrong to reduce what would have been the adult sentences by only one-third on the grounds of the appellant's young age. He points out that the appellant was 15 at the time of the first offences and sixteen-and-a-half at the time of the later offences. On that basis he argues that the reduction from adult sentencing levels should have been much nearer half rather than one-third. Finally, Mr Jepson submits that, stepping back, the total sentence was simply far too long.

[22]We take the view that the learned judge here was faced with a difficult sentencing exercise. On the one hand, these were serious offences. They were very frightening street robberies, at night, of lone victims, two of whom were outnumbered by a gang of robbers and one of whom was threatened with what he thought was a real gun. In each case there was obvious planning. In each case the participants had to some extent masked or disguised their appearances. The later offences by this appellant were committed whilst he was on police bail for the earlier offences.

[23]On the other hand, the appellant was very young. All the signs were that at the time of committing the offences he had been easily led and it was therefore significant that he was in the company of older offenders at the material times. Although he was the robber who approached the victim of the third offence with the imitation firearm the circumstances appear to have been that he was both directed and equipped by his older companions to do so whilst they stood off and waited for him to deliver the proceeds of crime to them. His immaturity at the time and his susceptibility to bad influences may be said to be apparent from the exceptional progress which he has made whilst in custody.

[24]We have already mentioned the passage of time between the commission of the offences and the date of sentencing. We regard it as a significant proportion of a young life. All the signs are that since his remand into custody he has flourished and has shown clear indications that he is capable of turning his life around.

[25]At the time of sentencing, the Sentencing Council's Definitive Guideline on Sentencing Children and Young People had very recently come into force. The statements of principle at the beginning of that guideline make the approach of the Sentencing Council very clear:

"1.1 When sentencing children or young people (those aged under 18 at the date of the finding of guilt) a court must have regard to: • the principal aim of the youth justice system (to prevent offending by children and young people); and • the welfare of the child or young person. 1.2 While the seriousness of the offence will be the starting point, the approach to sentencing should be individualistic and focused on the child or young person, as opposed to offence focused. For a child or young person the sentence should focus on rehabilitation where possible. A court should also consider the effect the sentence is likely to have on the child or young person (both positive and negative) as well as any underlying factors contributing to the offending behaviour."

[26]The publication by the Sentencing Council includes not only overarching principles relating to the sentencing of the young but also a specific guideline applicable to offences of robbery committed by those under 18. The guideline sets out various considerations relevant to the assessment of culpability and harm. It goes on to consider what approach should be taken if a sentencing court is driven to the conclusion that a custodial sentence is unavoidable. It says this at page 46:

"Where a custodial sentence is unavoidable the length of custody imposed must be the shortest commensurate with the seriousness of the offence. The court may want to consider the equivalent adult guideline in order to determine the appropriate length of the sentence. If considering the adult guideline, the court may feel it appropriate to apply a sentence broadly within the region of half to two thirds of the appropriate adult sentence for those aged 15 – 17 and allow a greater reduction for those aged under 15. This is only a rough guide and must not be applied mechanistically. The individual factors relating to the offence and the child or young person are of the greatest importance and may present good reason to impose a sentence outside of this range."

[28]We agree with the learned judge that in the circumstances of this case custody was unavoidable and it was therefore appropriate to consider what the sentences would have been for an adult offender.

[29]However, it seems to us, with all respect to the learned judge, that he fell into error in conducting this difficult sentencing exercise. First, we do not think that he was entitled, in the absence of any relevant evidence at all, to find that serious psychological harm had been suffered by the victim of the third robbery. No doubt that young man had suffered some psychological harm, and it may be he suffered significant harm; but in our judgment, evidence would be needed to establish that the psychological harm reached a level which could properly be described as serious.

[30]Secondly, although it was a matter very much in the judge's discretion, we are troubled by his decision to vary the reduction which would otherwise have been made by reason of age, because of the previous convictions. In so far as those previous convictions make the later offending more serious, that was an aggravating factor already taken into account in assessing the notional adult sentence. In the circumstances of this case, the previous convictions could not safely be used as any indication of criminal sophistication or maturity. Those offences of a 13-year-old might equally well reflect his immaturity and his susceptibility to peer pressure. In our judgment, Mr Jepson is correct in his submission that the appropriate reduction from the adult level of sentencing was of the order of one-half.

[31]Next, we agree with the judge that the imposition of consecutive sentences was not wrong in principle. Totality is however a very important consideration here, particularly bearing in mind that the offences charged in count 1 and 2 of the indictment were committed but a few hours apart.

[32]Although the judge proceeded by reference to the appropriate sentence for an adult, he did not spell out precisely what the appropriate adult sentences would have been. We infer however that he must have had in mind that for the commission of these offences in these circumstances by an adult the appropriate total sentence, after trial, would have been 15 years' imprisonment. We observe that such a total sentence would have been appealably high for an adult offender.

[33]In our judgment, having regard to the Definitive Guideline to which we have referred, and having regard in particular to the very significant progress which has been made in this appellant's young life, the total sentence of six-and-a-half years' detention was too long and a significant reduction should be made.

[34]In our judgment, the appropriate course to take is as follows. On count 2 of indictment T20167351, we quash the consecutive sentence of 18 months' detention and we substitute for it a concurrent sentence of 18 months' detention. As a result the total sentence is reduced from six-and-a-half years to 5 years. We leave all other aspects of the sentencing unaltered and for the avoidance of doubt we make it clear that the 197 days will continue to count towards the total sentence. To that extent the appeal succeeds. WordWave International Ltd trading as DTI hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400