No: 04/1341/A9 
Neutral Citation Number: [2004] EWCA Crim 1883
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Wednesday, 7 July 2004
 
B E F O R E:

LORD JUSTICE HOOPER 

MR JUSTICE GAGE 

HIS HONOUR JUDGE RICHARD BROWN DL 

‑ ‑ ‑ ‑ ‑ ‑ ‑
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988 

ATTORNEY‑GENERAL's REFERENCE NO 23 OF 2004
(FIONA FEREDAY) 
 
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MR M HEYWOOD appeared on behalf of the ATTORNEY GENERAL 
MR A FISHER appeared on behalf of the OFFENDER
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J U D G M E N T
1.	LORD JUSTICE HOOPER:  This is a reference by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988.  We grant leave to make the reference.
2.	The offender's name is Fiona Fereday, who is now 18 years of age, having been born on 13 May 1986.  On 22 September 2003 she appeared before the Birmingham Crown Court on an indictment on which she and two others were jointly charged with one count of robbery, two counts of attempted robbery and one count of possessing an imitation firearm with intent to commit robbery.  The offender and Junior Cooper pleaded guilty to all four counts.  Kerris Fereday pleaded guilty to counts 2 to 4, that is the attempted robberies and the firearm offence.  Count 1, robbery, as against Kerris Fereday, was ordered to lie on the file on the usual terms.  On 6 February 2004 Junior Cooper was sentenced to concurrent sentences of three years' detention in a young offenders institution.
3.	Mr Heywood, during the course of argument, cast some doubt upon that sentence as being too lenient.  There is, however, no reference under section 36 in respect of that sentence, and rightly so.  We must therefore proceed on the assumption that that sentence was the right sentence when assessing what is the appropriate sentence for Fiona Fereday.  
4.	The two Fereday cousins, the offender and Kerris, were each sentenced to supervision orders for two years, with a condition that they undertake an intensive supervision and surveillance programme and the robbery programme.
5.	In passing sentence Her Honour Judge Hindley QC said this:
"You, Kerris, are only 15 and you, Fiona, are only 17.  You are on the brink of womanhood.  I do not think you really understood what you were doing on that night.
I think you, Kerris, played a peripheral role.  You were under the influence of alcohol, you were immature, impressionable and naive and to an extent you too, Fiona, are the same.
You, Fiona, have had a difficult time since you were 12.  You have had to support the family in the way that I have heard described and I think that has been much to your credit.  You are a young woman of aspiration and you have really been trying since these‑
(There was an outburst from the public gallery.) 
JUDGE HINDLEY: You have really been trying since‑ 
(There was an outburst from the public gallery.) 
JUDGE HINDLEY: You have really been trying since these matters were brought to the attention of the police to put your life back in order.  You want to be a fashion designer.  You have aspirations and I think that you have demonstrated by doing that that you are truly sorry for what you have done.
So, for that reason and because Kerris is a young immature woman who played a peripheral role, I am going to make you both the subject of supervision orders.
It is an exceptionally merciful course." 
6.	The facts of the case were:  
"3.1 Junior Cooper was born on 23rd June 1984 and was aged 19 at the date of offending and sentence.  The offender Fiona Fereday was born on 13th May 1986 and was aged 17 at the date of sentence (and at that date of the offences.  Kerris Fereday was born on 11th June 1988 and was aged 15 at the date of sentence (and at the date of offences).
Count 1 (Robbery ‑ Junior Cooper and Fiona Fereday only) 
3.2 On the evening Friday 18th July 2003 the victim, Jenny Owen, went to The Mongolian Restaurant in Ludgate Hill, Birmingham with her partner, Dylan Jones and his family.  After finishing their meal, the couple walked the family back to their hotel.  Miss Owen then went to a Lloyds TSB automatic telling machine in New Street, near to its junction with Corporation Street.  It was now 50 minutes past midnight.  Mr Jones sat on a ledge, about 30 yards away, while Miss Owen went to use the machine.  He saw the three offenders approach.  The smaller female asked him for cigarettes but it does not appear that she realised that he and Miss Owen were together.
3.3 Miss Owen inserted her bank card but the machine failed to recognise her PIN number.  The offender Fiona Fereday, distinctive by a white hat with a black band or piping she was wearing, then approached her from behind, reached round and grabbed her neck with some force, saying 'Give me your money'.  The offender held a black and silver coloured handgun in her other hand.  She forced this quite hard into the opposite side of Miss Owen's neck.  The offender said 'Give me your fucking money', standing to Miss Owen's right side and starring into her face.  It occurred to Miss Owen for a moment that the weapon was an imitation but she was very frightened at the possibility that it could be real.
3.4 Miss Owen held open her purse to show that she had no money.  She saw that the offender was with two others, a male (Cooper) and a female.  She indicated to Mr Jones to come over.  The offender Fiona Fereday then removed the gun from the victim's neck, pushed it hard into her abdomen and swiftly pulled the trigger.  The gun made a snapping noise.  All three then ran up New Street towards the High Street.  One of them had grabbed and made off with Miss Owen's bank card, which had been ejected from the machine.
3.5 Miss Owen was left winded and shocked.  Police were called to the scene.
Count 2 & 3: attempted robbery ‑ all three offenders 
3.6 At about 1 am Jamie Gallaghan, a student, was with a friend, Tom O'Mahoney, in Lower Bull Street.  He was approached by Cooper and Fiona Fereday.  Kerris Fereday was there but stood slightly back.  Cooper took a gun from his clothing and pointed it at the victim's temple.  He said 'Give me your phone or your wallet'.  The female offender became quite aggressive and indicated for the victim to hand over his wallet.  One of them said 'Do you want to get killed'.  Cooper struck the victim in his face with the gun, causing his lip to split and bleed from a 1 cm internal wound.  He pointed the weapon at Tom O'Mahoney's stomach and then back at Gallaghan, saying again 'Give me your wallet'.  As the weapon was pointed at Tom O'Mahoney the female was saying similar things and attempted to pat down his pockets.  Miss Gallaghan was scared and intimidated, believing that the gun was real.  He was too shocked to hand over his wallet.  The police arrived and arrested the three offenders.  Gallaghan was left feeling nervous and shaken.
3.7 The officers had arrived in time to see Cooper pointing the weapon.  As they approached Cooper tried to bluff his way by saying that nothing was going on; he had just found out his friend was gay and he did not like it.  Fiona Fereday attempted to support his story.  Kerris Fereday said nothing.  Cooper was searched and a black and silver handgun of 6 inches length, without magazine or ammunition, was found.  He was also carrying a carrier bag.  All three were arrested and at first placed in the rear of an unmarked police vehicle before being transferred to another vehicle and then taken to Steelhouse Lane police station.
3.8 The unmarked police car was later searched.  On the floor behind the driver's seat Miss Owen's Lloyds TSB bank card was found, together with 57 pence in cash and in the other footwell was a Halifax bank card in the name of Miss C.A. Martins.
3.9 At the police station police searched the carrier bag Cooper had been holding and found a brown paper bag containing a 5‑inch black metal ammunition magazine.  In his left tracksuit pocket was a piece of plastic which appeared to be trigger guard shaped.
3.10 The weapon was examined and found to be a 6 mm silver and black plastic soft air ballistic ball gun, designed to discharge 6 mm plastic balls.  It has the appearance of a genuine firearm and is marked 'Combat Commander Super Automatic, calibre .45, Made Taiwan'.  The weapon has a low output and is not a firearm within the meaning of section 57(1) of the Firearms Act 1968 but is an imitation firearm within the meaning of section 57(4). 
3.11 Jenny Owen, Jamie Gallaghan and Tom O'Mahoney all identified the gun when it was later shown to them by the police.
3.12 Kerris Fereday's clothing was seized and appeared to have bloodstaining on it.
3.13 Junior Cooper when interviewed said that he had shown a fake gun that he had to two girls and then one of them took it and approached a woman with it at a Lloyds TSB cashpoint.  He admitted taking the woman's cash card from the cashpoint and running off.  He claimed the girl was playing about with the woman and was pointing it at the woman, touching her chest.  He heard her say 'Give me the money'.  He took the gun back off the girl.  He had then asked two boys for change and received 20 pence, after which he was arrested.  He had left the card in the police car.
3.14 He later admitted that he had heard one of the girls say 'Give me your fucking money' to the woman whose card he took.  The same girl had pulled the trigger.  Cooper denied that they had planned to hold someone up with the gun.  Later still, as to counts 2 & 3, he said that he had pointed the gun and demanded money from the two lads.  He agreed that he had not asked for 20 pence but had in fact asked for a phone and wallet and the girl with the black top on had said 'Do you want to get killed'.  He denied hitting the man in the face.  He agreed that he had been told to leave him alone.  He eventually admitted that one of the three of them had said 'Let's go and raze somebody' ‑‑ that is rob them ‑‑ before these events.
3.15 Fiona Fereday was interviewed and at first she denied robbery saying that she had approached a woman and pointed a gun at her to 'see if she thinks this gun's real'.  She claimed to have been messing about and laughing mainly because she was drunk.  She denied demanding any property.  The gun was Junior's.  She agreed that all three had been messing about with it.  She said that she had touched the girl's stomach with the gun but denied putting it at her face or neck.  Cooper had passed her the card later and she had left it under the seat in the police car, knowing it had come from the girl.  She denied asking for money and denied pulling the trigger.  She claimed that they were just having a joke with the woman.  As to the second incident she claimed that she had asked for a cigarette and the two men had started arguing.  She had not patted down O'Mahoney to search his pockets but had just slapped his bottom because she was drunk.  She did not know whether the gun was aimed at them at any stage, although she saw Junior holding it.
3.16 By a written basis of plea, Kerris Fereday pleaded guilty on the basis that she assisted in the commission of a joint enterprise to rob Gallaghan and O'Mahoney and encouraged the commission of the offences by her presence.
3.17 In mitigation, it was said on behalf of each that alcohol had contributed to the commission of the offences.
3.18 Fiona Fereday was on bail with a condition of intensive supervision and surveillance (including electronic monitoring) from 28th July 2003." 
7.	Mr Heywood on behalf of the Attorney General points to the following aggravating features:
"(i) the attack in count 1 was carried out by the offender and another acting in concert on an apparently lone female victim in a city centre at night;
(ii) the attack in counts 2 and 3 was carried out at night by three individuals acting in concert in a city centre;
(iii) in each case, the robbery or attempt to rob was carried out by the use of a realistic imitation firearm, which was levelled at or jabbed into the head, neck or abdomen of the victim in a manner, and accompanied by words, calculated to cause not just a fear of immediate violence but rather a fear of death;
(iv) in the case of the offender, the attacks were each one of a pair of similar offences carried out within a short time and distance of each other."
There is no dispute that they are the appropriate aggravating features.
8.	In paragraph 5 the reference sets out the mitigating features: the fact that the offender was aged 17 at the time of the offences; her pleas of guilty, so avoiding the need for the victims to give evidence and to some extent her previous admissions; and the offender's comparative good character.  
9.	Junior Cooper was of previous good character.  Fiona Fereday and Kerris Fereday had both been cautioned in March 2002, when each admitted offences of affray and assault occasioning actual bodily harm, arising out of a dispute in the street.
10.	Before the court there was a report prepared by a probation officer, Mr Queely.  The offender had at first been remanded in custody for some ten days following her arrest.  She had then been released on bail and under supervision.  She did well on supervision and impressed the probation officer with what he saw as changes in her behaviour.  In paragraph 4.1, in an undated report but prepared for the Crown Court, he wrote:
"4.1.  Fiona presents as a polite and cooperative young woman, who is well aware of the difference between right and wrong.  She is immature, but has grown considerably over the past three months.  Fiona accepts full responsibility for her actions and has expressed genuine remorse.  Fiona is aware of the effect her behaviour has had on the victims, particularly Jenny Owen.  She stated that when she saw Ms Owen at court they both burst into tears.  Fiona is ashamed and embarrassed by her behaviour and finds it difficult to belief she behaved in such a manner.  Alcohol and drugs were major factors involved in her offending behaviour, and she has made a concerted effort to ensure it does not happen again.  Having read the victim's statement she now realises just how serious and frightening the incidents were." 
11.	Unfortunately Mr Queely's optimism that the offender had changed has shown to be misplaced.  We have before us a supplementary report for the Court of Appeal (Criminal Division) which shows that her response to her current supervision order has not been good.  There is reference to her apparent drugs and alcohol misuse and increasingly chaotic lifestyle.  She has missed appointments.
12.	We have also been provided with a further report which is an addendum to that report.  That refers to the fact that her attendance has been very poor.  She no longer keeps in contact with the Probation Service and breach proceedings have been instigated.  Counselling has been arranged, but her attendance has been very erratic.  She was supposed to attend to see a member of the community psychiatric team.  She failed to attend.  She has not adhered to her curfew order, and breach action has been taken in respect of that.  She is due to appear for breaching the order on 9 July 2004.  Even more regrettably, she has been charged with an offence of affray.  
13.	Although we have set those reports out in some detail, they are relevant to a limited extent.  There are occasions when this court on an Attorney‑General's Reference considering a non‑custodial sentence, is influenced by the fact that the offender has achieved a great deal as part of the order accompanying the sentence.  That is not this case.   
14.	It is submitted on behalf of the offender by Mr Fisher that given that she had done well whilst on supervision prior to sentence, the sentence was not unduly lenient.  We have had drawn to our attention a letter dated 1 June 2004 from the offender's general practitioner.  In the words of the general practitioner:
"She has suffered a particularly deprived and abused background.  She lives with her mother, a single parent, who has a major personality disorder ...  From the age of about 5 Fiona has been caring for her mother who has manipulated and created a situation of dependency on her daughter."  
Little action, said the general practitioner, has been taken by Social Services, but the result has been long absences from school while caring for her mother.  He describes her as "well intended".  He notes that in December 2003 she was diagnosed depressed, commenced on antidepressant, but she has unfortunately, he notes, complied poorly with her medication.  Sadly, on 14 February 2004, she took an overdose.  He writes:
"Unfortunately due to her continued low feeling and self‑destructive feeling, a generally chaotic lifestyle and bounded by her chaotic household, Fiona failed to comply with her college attendances or her court requirements or her medication."
15.	The Attorney General refers us to the following cases:  Attorney‑General's Reference Nos 4 and 7 of 2002 (Adrian Michael Lobban, Christopher Sawyers); R v Steven James Q [2002] 2 Cr App R (S) 77; Attorney‑General's Reference No 13 of 1998 (Matthew Deary) [1999] 1 Cr App R (S) 140; R v Avis [1998] 2 Cr App R (S) 178. 
16.	It is submitted on behalf of the Attorney General that the sentences passed were unduly lenient, in that they failed to mark the gravity of the offending, the aggravating features present and in particular the use made of the imitation firearm.  Reference is made to the need to protect the members of the public from offences of this sort in public places and public concern about cases of this kind.
17.	In our judgment this was an unduly lenient sentence.  Whilst it is important that sentencing judges take where necessary a merciful course, this was more than "exceptionally merciful", to use the judge's words.  This was unduly lenient.  In our view the proper sentence would have been one passed pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 and would have been in the region of two‑and‑a‑half years' detention.  We must now take into account double jeopardy, and the discount for double jeopardy is necessarily increased by the fact that she has not been in custody and by the fact she has at least done a small part of the order imposed on her by Her Honour Judge Hindley.  This court's powers are limited by section 36(1)(b) of the Criminal Justice Act 1988 to the powers of the court below when dealing with her.  The proper order is therefore a detention and training order under section 100 of the Powers of Criminal Courts (Sentencing) Act 2000 for eighteen months. 
18.	MR HEYWOOD:  The only other matter is the time and place for surrender, and date of start of sentence. 
19.	LORD JUSTICE HOOPER:  What do you suggest? 
20.	MR HEYWOOD:  My Lord, the conventional course is at 9 am tomorrow at a local police station, for example. 
21.	LORD JUSTICE HOOPER:  Do you have anything to say? 
22.	MR FISHER:  No.  We know she is due before the Birmingham Youth Court, according to the supplementary addendum, on 9th July in any event.
23.	LORD JUSTICE HOOPER:  To surrender at 9 am on the day after tomorrow? 
24.	MR HEYWOOD:  I have no submissions as to that. 
25.	LORD JUSTICE HOOPER:  She is to surrender at Birmingham Youth Court at 9.30 am, 9th July.  The sentence is to run from the date she surrenders into custody.