Lobato, R v [2017] EWCA Crim 2305

Case No 201705080/A4[2017] EWCA Crim 2305
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 19 December 2017
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE HOLROYDE
MR JUSTICE GREEN
MR JUSTICE WARBY
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
Between
R E G I N ACrownv
Between
BLAKE DIAS LOBATO
Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)Mr M Weekes appeared for Attorney GeneralMr S Weidmann (Solicitor Advocate) appeared for Offender
J U D G M E N TThis transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.

LORD JUSTICE HOLROYDE:

[1]On 25th May 2016 Blake Lobato, then aged 23, committed an offence of possessing an imitation firearm with intent to cause fear of violence, contrary to section 16A of the Firearms Act 1968. When first arraigned in the Crown Court he pleaded not guilty. However, on the day fixed for his trial he changed his plea to one of guilty. On 20th October 2017 he was sentenced to 5 months' imprisonment.[2]Her Majesty's Solicitor General now applies, pursuant to section 36 of the Criminal Justice Act 1988, for leave to refer that sentence to this court as being unduly lenient. We grant leave.[3]We summarise the circumstances of the offence from the Final Reference. For convenience, and meaning no disrespect, we shall for the most part use surnames only.[4]Three friends who were travelling together in a car found their way obstructed by a Suzuki car which was stationary in the middle of the road. That car was driven by one Bradley Kell, who was jointly charged with Lobato but died before the case came to trial. Lobato was the front seat passenger. It seems that none of the three friends in the other car knew or had ever had anything to do with either Lobato or Kell.[5]Lobato got out of the Suzuki and walked towards the other car. He was wearing a balaclava. He was carrying a mask in his left hand and an item which at that stage could not be identified in his right hand. The three friends drove round the stationary car and continued their journey, but were soon overtaken by the Suzuki which stopped in front of them. Lobato again left the Suzuki, and could now be seen to be holding what appeared to be a gun. The three friends turned round and drove quickly away. But the Suzuki again came after them, flashing its headlight and indicating to the other car to pull over. In fear the three friends drove at high speed to try to get away. The Suzuki however came alongside and Lobato, despite the speed at which they were travelling, opened the passenger door of the Suzuki and began waving the gun towards the three friends. They were able to see that the gun was wrapped in a cloth as if to prevent any fingerprints being left on it. They thought it was a real firearm. At one point in these events the other vehicle was also struck with a baseball bat. The three friends in the other vehicle were understandably terrified. Eventually the Suzuki collided with a roundabout and came to a halt. Lobato and Kell ran away.[6]The police were called. In the passenger footwell of the Suzuki they found a baseball bat and a working BB gun, which closely resembled a genuine self-loading pistol.[7]Both the offenders were quickly arrested. Lobato admitted that he had been in the car and said that he and Kell had been looking for a man who had been in dispute with Kell's girlfriend. He also admitted that the BB gun was his. However, he denied that either he or Kell had produced the gun. He attributed any threatening behaviour to Kell, and claimed that he had told Kell that the man they were looking for was not in the car they were chasing.[8]As we have indicated, the victims of this offence were terrified by what had happened. The driver, in a later statement, said that he had become nervous. He described himself as "paranoid" about anyone who appeared to be following him, and as being unable to trust others. He said that he avoided going to places where he thought Lobato or Kell might be. One of the passengers (a young man) spoke of himself as having been "petrified". The other passenger (a young woman) said that she had been shaking with fear and feared for the lives of herself and her two friends.[9]Lobato had previous convictions for offences which included obstructing a police officer, criminal damage and harassment. For the harassment offence he had received a suspended sentence in November 2014. He had however never previously served a prison sentence.[10]The sentencing judge was assisted by a pre-sentence report and by a psychiatric report. The psychiatric report indicated that Lobato has since childhood suffered from ADHD, Tourette's Syndrome and a depressive disorder associated with anxiety. The symptoms of his ADHD included impulsivity, hyperactivity and aggression. His condition had been destabilised by the sad death of his mother in 2015. Lobato was in receipt of prescribed medication, but his compliance with taking it was poor. He was assessed as being of normal intellectual ability, and the psychiatrist felt that Lobato had good insight into his mental illness. He described Lobato as "vulnerable" due to the nature of his mental disorder and expressed the opinion that a custodial sentence would overwhelm Lobato with distressing feelings.[11]It must be noted that Lobato told the psychiatrist that he had only ever smoked cannabis on one occasion. That stands in marked contrast to his admission to the author of the pre-sentence report that he used about £15-worth of cannabis every day. The author of that report indicated that Lobato accepted responsibility for his behaviour and was very remorseful. Lobato himself expressed his remorse in a letter which he wrote to the court.[12]In his sentencing remarks, the judge said that he would give Lobato limited credit, the extent of which he did not specify, for his late plea. He referred to Lobato's very sad personal and family circumstances including the serious ill-health of a sister. He acknowledged Lobato's remorse.[13]The judge referred to the questions which this court prescribed in the well-known case of R v Avis [1998] 1 Cr App R(S) 420, and answered them by saying that Lobato had used an imitation firearm to threaten with the intention of frightening the persons in the other car. The judge at page 6F of the transcript then said this:
"I bear in mind the content of the pre-sentence report. You accept responsibility, you are very remorseful. But on the other hand you have abused prescription medication and have regularly used cannabis. That, no doubt, has exacerbated your existing mental health problems of ADHD, depression, anxiety and Tourette's. I bear in mind that this offence took place in May, 2016, and you have kept out of trouble since then. That, of course, is to your credit. I also bear in mind the vulnerability described in the pre-sentence report. The author of the report recommends a suspended sentence order, with a curfew, unpaid work and rehabilitation activity requirement. I bear in mind the very full and helpful psychiatric report."
The judge then went on to refer in rather more detail to the psychiatric report, and at page 6G he said this:
"You put entirely blameless and law-abiding citizens, who had simply gone out to get a pizza, through a terrifying experience. Having regard to all of these matters that means that your culpability and the harm caused by this offence is so serious that, as defence counsel rightly accepts, there is no option but to impose an immediate custodial sentence. This offending behaviour is too serious for me to suspend sentence. However, the sentence will be less than it would otherwise have been, bearing in mind the content of the psychiatric report. The sentence will be one of five months' imprisonment."
[14]We are grateful to Mr Weekes for the Attorney General and Mr Weidmann for Lobato, for their focused oral submissions this morning. Mr Weekes submits that the sentence was unduly lenient. He identifies as aggravating factors the following. First, that the offending was premeditated, both on Lobato's own account and by reference to the fact that he was wearing a balaclava and was in possession of a mask. Secondly, the production, more than once, in a public place of the imitation firearm. Thirdly, the prolonged, sustained and highly dangerous nature of the pursuit of the victims who were threatened with the imitation firearm. Fourthly, the effect of the offending on the victims. Fifthly, the presence in the car of another weapon.[15]Mr Weekes acknowledges that there is mitigation present, namely the mental health problems of Lobato, his late guilty plea, his demonstration of remorse and insight into his offending behaviour and his comparatively young age.[16]As to the Avis questions, Mr Weekes submits that the BB gun was a realistic imitation, and that whilst an imitation is less serious than the real gun the distinction made no difference at the time to those who were threatened, because they thought that the gun was real. The offence was committed in public by a man who was not of previous good character. Mr Weekes submits that in the light of those answers the principles set out in Avis indicate a need for a custodial sentence.[17]As to the length of sentence, Mr Weekes refers to a number of decisions of this court. He argues that this was a serious offence of its kind, with serious aggravating features. Those aggravating features, he submits, should have increased the sentence substantially. He submits that the judge should have taken a significantly higher starting point than he did, and should not have reduced it by more than 10% to reflect the very late guilty plea.[18]On behalf of Lobato, Mr Weidmann, who represented him in the court below, realistically acknowledges that this was a lenient sentence. He points out that the judge gave considerable weight to the psychiatric report and invites this court to do the same. He tells us that if the court is considering increasing the sentence, it may be relevant that Lobato is due for release in the very early days of the New Year. Mr Weidmann also tells us that the first experience of imprisonment for this young man, now 24, has been a very difficult one. In the light of the content of the psychiatric report, we have no difficulty in accepting that last point.[19]The maximum sentence for an offence contrary to section 16A of the 1968 Act is one of 10 years' imprisonment. There is no Definitive Guideline for sentencing in such cases but as the judge recognised, the decision of this court in Avis identifies the factors which must be considered in any firearms offence.[20]Of course, every case depends on its own facts and therefore previous decisions of this court can only be of limited assistance. However, the case law cited to us by Mr Weekes does, in our view, support his submission that in all the circumstances of this case the appropriate sentence after trial would have been of the order of 18 months. We mention briefly the following features of cases cited to us by Mr Weekes.[21]In Attorney-General's Reference No 35 of 2007 [2008] 1 Cr App R(S) 26 an air pistol, which was capable of causing severe injury or even death but which was in fact unloaded, was brandished in a public house, accompanied by threats to kill. This court accepted a submission that for such an offence the appropriate range of sentence would be between 2 years and 3 years, depending on the age of the offender, his record and his plea. Mr Weekes fairly acknowledges that it appears that the weapon in that case was more lethal than the BB gun in the present case.[22]In R v Coutts [2009] 1 Cr App R(S) 102, a man of effectively good character, who had been troubled by repeated nuisance phone calls, took a pellet gun into the street and threatened passers-by including children saying:
"Where are they? I'll shoot whoever it is"
. His behaviour was wholly out of character. This court reduced the sentence imposed below to one of 12 months, based on a sentence after trial of 18 months.[23]In R v Finch [2010] EWCA Crim 688, a 19-year-old offender of previous good character, confronted in a public place by a youth with whom he was on bad terms, took a BB gun from his pocket and pointed it at his victim. The gun was loaded with one pellet although the safety catch was on. This court again reduced the sentence imposed below to one of 12 months, again based on a sentence of 18 months' custody after trial.[24]In Attorney-General's Reference (R v Ferezi) [2017] 1 Cr App R(S) 26, sentences were increased to two-and-a-half years' imprisonment and 2 years' imprisonment, following convictions at trial of two youths who had been involved in threatening a teenage girl with a BB gun and, in the case of the first offender, using the gun to strike a blow to their victim.[25]In our judgment, the present offence was a serious one of its kind, with aggravating features which, absent mitigation, would take the appropriate sentence after trial above the level of 18 months which was appropriate in the cases of Coutts and Finch. Lobato and Kell were driving around in search of a man against whom they had a grudge or grievance. Lobato had a BB gun and there was also a baseball bat in the car. They picked on three entirely innocent victims and subjected them to a very frightening course of conduct which lasted a significant period of time. What looked to the victims like a real gun was used to put them in great fear and a bat was also used to strike their car. The circumstances of the pursuit gave rise to an obvious and serious risk of a collision in which persons might be badly injured. Although it was not in fact a real firearm, the effect of producing the BB gun was sufficiently frightening to cause the emotional harm to the three victims which we have summarised.[26]Lobato's remorse, though genuine, was by no means immediate. In interview he made only limited admissions and sought to cast the blame on Kell, and his eventual plea came on the day of his trial more than a year after the offence.[27]We recognise that Lobato suffers from mental health problems, and we can accept that those problems may make it harder for him than it is for others to exercise control and self-restraint and, it may be, to resist peer pressure. We also accept that his personal circumstances are in some ways forlorn and, as we have indicated, we readily accept that this first experience of imprisonment cannot be easy for him. Those are mitigating features which can properly reduce, to some extent, the sentence which would otherwise have been appropriate. We observe however that there is no suggestion that Lobato did not know what he was doing, and it seems clear that he has exacerbated his problems in the past by using cannabis. The weight which can be given to his personal mitigation must be qualified by those considerations.[28]With all respect to the judge below, we have no doubt that the sentence which he passed was unduly lenient and must be significantly increased. The increase which we regard as appropriate is a substantial one in terms of the proportion which it bears to the sentence imposed below. We are conscious that this decision comes at a time when the offender, Lobato, is nearing what would otherwise have been his release date.[29]In the light of what we have read and seen of Lobato, we accept that for a young man with his problem, such an experience of imprisonment will be even harder to bear than it would be for many others. But even making every allowance for the personal mitigation, we do not think that the sentence after trial could properly have been less than about 18 months' imprisonment. Making a 10% reduction for the late guilty plea, and rounding somewhat in Lobato's favour, we conclude that the least sentence which is appropriate in all the circumstances is one of 15 months' imprisonment. We therefore quash the sentence of 5 months' imprisonment as being unduly lenient and we substitute for it a sentence of 15 months' imprisonment.