No: 200404289/A4 
Neutral Citation Number: [2004] EWCA Crim 2769
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 98 OF 2004    
 
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Computer Aided Transcript of the Stenograph Notes of 
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MR R HORWELL appeared on behalf of the ATTORNEY GENERAL
MR S EVANS 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.  The offender was born in April 1986 and so is 18 years of age.  On 14th June 2004 he pleaded guilty to both counts in the indictment; count 1 was robbery and count 2 assault occasioning actual bodily harm.  On 5th July he was sentenced by Mr Recorder Carus QC, at Manchester Crown Court, to 30 months' detention in a young offender institution on count 1 and 12 months' detention concurrently on count 2. A co- accused, Blanchflower, also charged on count 1, was at that time awaiting trial, but we are told that he has subsequently been convicted.
2.	The circumstances of the offence, somewhat unusually, are depicted clearly in CCTV footage which each member of this Court has seen.  The offender was in the street at night-  time with three others.  The victim was alone.  He was punched and kicked, not only during the robbery, but also, conspicuously by this offender gratuitously afterwards.
3.	The victim was Mr Prince.  A little before 2 o'clock on the morning of 23rd February 2004, he was using a public telephone kiosk in Pendleton.  He was telephoning for a taxi to take him home.  He was told it would be about 15 minutes, so he decided to stay in the kiosk to keep warm.  The offender and the three other youths were not far away.  As depicted in the video footage, the offender had previously attempted to break into a parked motorcar, but had failed.  Thereafter, he and the other three walked towards the kiosk.  They saw Mr Prince inside.  Mr Prince assumed that they wanted to use the telephone.  He stepped outside. Thereupon, the offender and one of the others attacked him, punching him to the side of the face and knocking his spectacles off.  He was knocked to the ground and kicked in his head, shoulder and back.  At no stage did he offer any resistance. He curled up in a ball in order to protect himself.  As he lay on the ground, the offender and others searched his pockets and took £64 in cash, a mobile telephone and a number of disposable cigarette lighters from him.  Thereafter, as we have said, the offender and one of the others returned and the offender stamped on him.
4.	The offender and the others walked off.  Mr Prince was still lying on the ground and again the offender came back and kicked and stamped on him.  Mr Prince said: "Don't you think I've had enough?" That later incident was the subject of count 2, assault occasioning actual bodily harm.
5.	Fortunately, not long after this attack, the taxi which Mr Prince had ordered arrived.  It took him home.  He went to hospital the following morning.  He had deep bruising of the head, back and shoulders.  Because of what was recorded on the CCTV camera the offender was identified. He was arrested on 14th April.  In interview he made no comment.  He pleaded guilty at the plea and directions hearing on 14th June. That was the first occasion when he had the opportunity to do so.  Sentence was adjourned to await the outcome of Blanchflower's trial.  But, on 5th July, that trial was adjourned because he had other matters to face.  It was in that context that the learned Recorder passed the sentence to which, at the outset, we referred.
6.	On 24th May 2001 the offender had been conditionally discharged for 12 months for an offence of having a bladed article in a public place, to which he pleaded guilty.  He had been 13 at the time of the offence and 15 at sentence.  He had also been cautioned in respect of offences of theft and assault occasioning actual bodily harm when he was 12, and for criminal damage when he was 13.  As we have said, he was 18 at the date of sentence. He had been 17 at the time of the offence. The learned Recorder, like this Court, had the advantage of seeing the CCTV footage.
7.	In passing sentence, the Recorder indicated that the plea of guilty would reduce the sentence to be imposed, though he observed that, given the quality of the CCTV evidence, the prospect of a successful contest would have been "virtually zero".  The learned Recorder also said that, having watched the video, he experienced a sense of revulsion and shock.  He indicated that the offender had played the most prominent part in the attack on Mr Prince, who was fortunate not to have sustained serious injuries, despite the offender's best attempts to cause serious injury.
8.	On behalf of the Attorney- General, Mr Horwell draws attention to what he submits, rightly, are five aggravating features. First, the offence of robbery was committed by a group of four upon a sole individual.  Secondly, it took place at night.  Thirdly, shod feet were used as weapons. Fourthly, the violence which we have described went beyond that required merely for the purpose of robbery.  Fifthly, there was the subsequent further and wholly gratuitous violence used on the victim after the robbery had been committed.
9.	Mr Horwell drew attention to the mitigation to be found in the pleas of guilty and the age of the offender.  He drew attention to two authorities R v Gordon & Foster [2001] 1 Cr App R(S) 200, in some respects is similar to the present case, though dissimilar in others.  In that case, following a plea of guilty, a sentence of 5 years was imposed on defendants aged 26 and 28 and that sentence was upheld on appeal to this Court.  Mr Horwell also drew attention to Attorney- General's References No 4 and 7 of 2002 (R v Lobban & Ors) [2002] 2 Cr App R(S) 345, in particular, paragraph 5 of the judgment of the Court, where in it was accepted that the authorities reveal a sentencing bracket of 18 months to 5 years, subject to the observation that, if offences are committed by an offender who has a number of previous convictions and, if there is a substantial degree of violence, or if there is a particularly large number of offences committed, the 5 year upper limit may not be appropriate.  In paragraph 7 the Court identified as a factor of importance whether a team of offenders was involved.
10.	In the present case, as we have said, there were four members of the offender's group, though it is right to point out that one of them took no part in the violence. One of them intervened to reduce the degree of violence and the violence was essentially inflicted by the offender primarily and by one of the other youths secondarily.
11.	The submission Mr Horwell makes is that the sentences passed by the learned Recorder were unduly lenient and failed to reflect the aggravating features identified and public concern about offences of this kind.
12.	On behalf of the offender Mr Evans stresses that the guilty plea on the first occasion is the most powerful aspect of mitigation so far as this offender is concerned.  He accepted that the quality of the video made it very difficult to contest the issue of guilt, although he did point out that Blanchflower did contest that issue, albeit he was convicted. Mr Evans conceded that the garment warn by the offender, which bore white stripes, was particularly readily identifiable and he also accepted that the offender's participation in these events was in the forefront of those involved.  But, he stresses, the offender was 17 at the time. His only previous involvements with the law, as we have indicated, was when he was a good deal younger.  As to the offences themselves, Mr Evans stresses that no weapon was used.  Bearing in mind the number of those involved and the use which was made of shod feet, that is not, as it seems to us, a particularly powerful point.
13.	Mr Evans also drew the Court's attention to Attorney- General's Reference No 23 of 2004 (R v Fereday) [2004] EWCA Crim 1883.  As was pointed out to Mr Evans in the course of his submissions, individual cases which state no general principle are of limited assistance when approaching sentence, because of the variety of facts which are to be found in the reported cases.  Mr Evans' submission, and he said all that could be said on behalf of the offender, is that this was not an unduly lenient sentence and not one with which, in any event, this Court should interfere.  That submission we do not accept.
14.	Taking into account all the circumstances which we have rehearsed, we would have expected in the court below a sentence of at least 5 years' detention in a young offender institution for the totality of this criminality.  It follows that the sentences passed were unduly lenient. Taking double jeopardy into account, that is the offender is being sentenced a second time, the sentence which we pass is one of 4 years' detention in a young offender institution.  We pass that sentence in relation to count 1, quashing the sentence of 30 months imposed by the learned Recorder and we leave undisturbed the sentence of 12 months concurrent on count 2.