No: 200402696/A7 
Neutral Citation Number: [2004] EWCA Crim 2768
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Thursday, 28th October 2004
 
B E F O R E:

THE VICE PRESIDENT
(LORD JUSTICE ROSE) 

MR JUSTICE HENRIQUES 

MRS JUSTICE DOBBS 

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

ATTORNEY- GENERAL's REFERENCE NO 52 OF 2004    
 
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Computer Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
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(Official Shorthand Writers to the Court)
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MR S DENISON appeared on behalf of the ATTORNEY GENERAL
MISS M LORAM appeared on behalf of the OFFENDER
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J U D G M E N T
1.	THE VICE PRESIDENT:  The Attorney- General seeks the leave of the Court, under section 36 of the Criminal Justice Act 1988, to refer sentences said to be unduly lenient.  We grant leave.
2.	The offender was born on 1st November 1982 and is therefore almost 22.  On 5th March 2004 he pleaded guilty to six offences which were contained in three indictments.  First, robbery at a Spar store on 8th June 2003; secondly, robbery at the Crown public house, Brownhills, on 5th July 2003; thirdly, handling the proceeds of a robbery at the Chase Inn, Brownhills, on 25th August 2003; fourthly, robbery at Guests Off- licence, Chasetown, on 30th August 2003; fifthly, possessing an offensive weapon, a knife, on 30th August 2003; sixthly, robbery at Trent Valley Hotel on 7th September 2003; and seventhly, on the same date, possessing an offensive weapon, namely a hammer. He was sentenced by His Honour Leonard Krikler sitting as a Deputy Circuit Judge at Stafford Crown Court on 14th April 2004 to a total term of 5 years' imprisonment.  That consisted of 5 years for each of the first two robberies to which we have referred, 4 years for the robbery at Guests off- licence and 3 years for the robbery at the Trent Valley Hotel.  In relation to the other three offences, one of handling stolen goods and the other two of possessing an offensive weapon, he was sentenced to 12 months' imprisonment.  All those sentences were ordered to run concurrently.
3.	In summary, the offender committed a series of robberies on vulnerable premises, at night, either acting alone or with others.  The premises were occupied.  He concealed his face with either a mask or a hood and he used weapons to threaten those who were in the premises in order to enable him to gain access to that which he wished to take.  The victims were terrified.  Substantial amounts of property, particularly cash, were taken.
4.	The first robbery, at the Spar Store, took place on 8th June 2003 when the offender and two others went first to the offender's mother's home.  From there he borrowed a white van owned by his mother's lodger.  Shortly before 11 o' clock that evening four female members of the staff were on duty at the Spar store.  Three were at the tills and the fourth, Miss Rooney, a supervisor, was about to lock the door to close for the evening.  The offender and another man came in.  One of them had a woollen hat pulled over his face in which two eye holes had been cut.  The other had a hooded top with the hood over his face.  One carried a crowbar and the other an axe.  They approached the women and shouted: "Get down".  Two of the women fled to the toilets, a third backed away and crouched in a corner.  Miss Rooney was taken by the men to the office door and they demanded the keys.  She said she did not have them.  One of the men smashed the glass with the crowbar.  The other raised the axe.  She admitted that she had the keys and she unlocked the door.  She was told to unlock the two safes.  She did so.  They used the crowbar to open one of the trays from the larger safe.  They emptied its contents into a canvas bag which was in the office.  They ran from the store, one of them grabbing cigarettes as he went.  They ran to the white van which had a third person waiting to drive them away.  He did so.
5.	The offender and the same two returned to the offender's mother's house at between 11.30 and midnight.  The proceeds from that enterprise were a sum in excess of £27,000 in cash, £800 worth of mobile telephone Top Up cards, a number of packets of cigarettes and the canvas bag.  Damage had, of course, been caused to the office door window.
6.	When the offender was interviewed, in November 2003, he declined to answer questions. A co- defendant, who pleaded guilty to handling stolen goods, was sentenced to 9 months' detention.
7.	The second robbery, at the Crown, took place on 5th July 2003.  The living quarters were occupied by a female licensee, Miss Hook and the relief manager Mr Booker, together with his partner, Miss Baldock.  At about 3.30 in the morning of 5th July they were awakened by the sound of banging on the bedroom door of Mr Booker and Miss Baldock. Mr Booker got up to investigate.  As he did so, the door was kicked off its hinges and he was confronted by the offender and another man wearing Balaclavas and wielding crowbars above their heads.  They ordered Mr Booker and Miss Baldock to get down on the floor. Miss Hook, who had also got up to see what was going on, was pushed into the room and made to sit on the bed.  The men searched the rooms and demanded the keys to the safe and the alarm codes.  It was claimed by the occupiers that there was no safe, whereupon they were threatened with the crowbars and told that they would be 'done'.  One of the invaders was more aggressive than the other but it was the quieter one who seemed to be in charge.  It was the offender's case that he was not the more aggressive one; it follows that he was in charge.
8.	Miss Hook eventually told them that the safe was downstairs, whereupon the aggressive one punched her in the face, causing a lump on her left ear.  One of the men picked up a steak knife and threatened the occupiers with that. He then took Mr Booker downstairs at knife- point while the other man remained upstairs with the women.  Eventually the men made off with £7,500 in cash and £1800 worth of jewellery.  The incident had lasted about 40 minutes. Understandably, the women, in particular, were petrified throughout, particularly so in the case of Miss Baldock, because she knew of a recent incident at another public house where a man had been killed.
9.	When the offender was interviewed he denied that he had been involved.
10.	As to the offence of handling, in the early hours of 25th August 2003 three masked men broke into The Chase public house and kicked down the bedroom door of the female licensee and her partner. They were armed with a crowbar, a carving knife and claw hammer. They demanded to know where the money was. They brought the licencee's 16 year old daughter into the bedroom and threatened her with a hammer. They made off with £4,000 in cash and jewellery, including a watch which was found at the home of the offender's girlfriend during the following month, September.
11.	When he was interviewed that month the offender claimed to have bought the watch a few weeks previously from a drug taker in Brownhills.  As we have indicated, his plea of guilty to handling in relation to those matters was accepted.
12.	The next two offences were the robbery at Guests off- licence and the possession of an offensive weapon, namely a knife while that was done.  On 30th August, shortly after 10 o'clock in the evening, the offender went into the off- licence. There were two female members of staff on duty.  He was wearing both a white baseball cap and a stocking mask.  He was brandishing a large knife with which he threatened the staff.  He said: "Where's your fucking money?" several times. The staff said they did not have any. He went to the till. When he failed to open it, he attacked it with the knife, eventually forcing it open.  He made off with £2,000 in cash and £180 worth of mobile telephone Top Up cards, together with a few cigarette lighters.  Unfortunately for him, the whole incident was captured on closed circuit television.  It was possible to identify the offender both by that means and by subsequent identification procedures.  In interview he denied being involved.
13.	Finally, the robbery and possession of a hammer on 7th September 2003, at Trent Valley Hotel.  At 3.15 in the morning on that day the manager of that hotel, Mr Lowe, was awakened from sleep by two men who had broken into his bedroom.  Both were wearing hooded tops with the hoods pulled tightly round their faces. One carried a knife, the offender carried a hammer.  They shouted: "Where's the money?" He said it was in the safe.  They shouted: "Where's the keys?" He said they were in his trouser pocket.  One of the men shouted: "Don't be a fucking hero or I'll blade you."  They demanded the alarm codes. One of them stayed with him while the other went to the safe.  When that other returned he was aggressive and demanded to know if that was "all the fucking money".  He threatened to stab Mr Lowe.  They searched his room for more money and locked him in the bathroom, again threatening to stab him if he sounded the alarm. He was left extremely shaken.  They made off with £2,500 in cash, some Greek money, the keys to a Mercedes car and a mobile telephone.
14.	The offender was arrested later that evening after the police had traced him. Later, a shoeprint from the scene was matched to one of his shoes. Again, in interview, he denied any involvement in the offences.
15.	The offender has been convicted of 121 offences since July 1997, including burglary, theft, handling, assault, criminal damage, possessing an offensive weapon and other driving and drugs offences, some of these offences having been committed while on bail.  His first custodial sentence was in May 1998, and since that time every year he has been sentenced to a term of custody, the longest previously being for 18 months.  He claims to have committed the present offences in order to enable him to feed his drug addiction.
16.	On behalf of the Attorney- General, Mr Denison draws attention to what he rightly submits are a number of aggravating features. First, vulnerable occupied premises were targeted at night.  Secondly, weapons were used to threaten and terrify staff.  Thirdly, the offender committed offences with others as well as on his own.  Fourthly, the ordeal of the victims was increased by the face masks warn by the intruders.  Fifthly, the offences were ruthlessly carried out after planning.
17.	Mr Denison draws attention to three mitigating features.  First, the pleas of guilty. Secondly, the fact that none of the weapons albeit brandished was actually used, and thirdly, that the offender is only 21 years of age.  But, he submits, a sentence of 5 years' imprisonment for these offences was inadequate properly to reflect their gravity.
18.	A number of authorities are referred to in the Reference: Attorney- General's Reference No 9 of 1989 (R v Lacey) (1990) 12 Cr App R(S) 7, Attorney- General's Reference No 16 of 2000 (R v Skittlethorpe) [2001] 1 Cr App R(S) 144, Attorney- General's Reference No 149 of 2002 (R v Lockwood) [2003] 2 Cr App R(S) 559 and R v Delaney [1998] 1 Cr App R(S) 325.
19.	On behalf of the offender Miss Loram, in an admirable submission, drew attention to four mitigating features in particular.  First, the plea of guilty; secondly, the offender's age at the time of these offences, namely 20; thirdly, such remorse as is depicted in the letter which was before the sentencing judge and is before this Court, and fourthly, that the violence, as we have already indicated, was limited.  Miss Loram submits that, although the sentence was admittedly a lenient one, nonetheless, the offender is still a long- term prisoner at the age of 21.  Such a person, she submits, needs to be able to see some light at the end of the tunnel.  She submits that the sentences passed by the learned judge were not unduly lenient but within the scope of the judge's discretion. Alternatively, she invites the Court to have regard, as it always does, to the principle of double jeopardy, that is to say that the offender is being sentenced a second time.
20.	To all of these matters we have regard.  As it seems to us, the criminality of the offender in the offences which we have described required a significantly higher sentence than that imposed on him by the learned judge.  We would have expected in the court below a sentence of the order of 8 or 9 years' imprisonment.  Taking into account double jeopardy, the sentence which we pass is one of 7 years' imprisonment. We achieve that by quashing the sentences of 5, 4 and 3 years imposed in relation to the offences of robbery and substituting for each of these sentences a sentence of 7 years' imprisonment.  The other sentences imposed for handling and possessing an offensive weapon will remain unaffected. All the sentences will run concurrently.  The total sentence is therefore one of 7 years' imprisonment.