No: 2004/6432/A5 
Neutral Citation Number: [2004] EWCA Crim 3477
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Tuesday, 21 December 2004
 
B E F O R E:
 
LORD JUSTICE MAY 
MR JUSTICE MCKINNON 
 
MR JUSTICE BEATSON 
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R E G I N A 

-v- 

RICHARD COWELL
 
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MISS S PORTER appeared on behalf of the APPELLANT
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J U D G M E N T
1.	MR JUSTICE BEATSON:  On 30th September at the Crown Court at Harrow, before His Honour Judge Bailey and a jury, the appellant was convicted after a retrial and on 28th October 2004 was sentenced to 12 months' detention in a young offender institution for a count of robbery.  He appeals against sentence by leave of the single judge who ordered expedition.  
2.	The incident occurred at around midnight on 20th December 2003.  Two youths alighted from a bus in the Harrow area and were making their way home followed by a group of youths of similar age including the appellant who had been sitting at the rear of the same bus.  The two youths were approached by one Abdirahman who asked them what they had got and then another member of the appellant's group grabbed hold of one of the youths and held him against a car.  The victim's friend ran off pursued by two other members of the group.  Meanwhile the first youth handed a gold chain to Abdirahman and then moved on to the pavement where the rest of the group were.  One of the group held his hand against his jacket which made the victim suspect he had a weapon.  The victim's pockets were searched by another member of the group and his mobile phone and top were taken.  The appellant was present throughout.  There were either eight or nine members of the group present.  
3.	The group then left the scene and dispersed.  The appellant and a friend Fiocco continued to walk along the road, followed by another friend Shorter.  Soon afterwards they were identified to the police by the victims and were arrested.  Abdirahman was arrested separately.  The other members of the group were not apprehended.  When interviewed the appellant admitted being present and witnessing most of the incidents.  He had followed the group because he thought there was going to be a fight.  He stated he had not intervened and had not wanted to get involved.  
4.	The sentencing judge had before him a pre-sentence report which recommended a community punishment and a curfew order.  The report stated that there was a low risk of him reoffending and the risk of harm to the public was low.  The sentencing judge also had before him a number of character references from members of his church, including his pastor, school teachers and friends.  We shall set out the sentencing judge's remarks in some detail because, as will be seen, they are crucial to the outcome of this appeal.  The sentencing judge said that it was accepted that the appellant had an understandable grievance.  The first jury could not reach agreement and the person he said he went out with that night failed to appear at the retrial.  His friend Shorter had been found not guilty by the same jury that had convicted him.  However, he could have no complaint about the verdict.  He was present at the scene while the robbery was taking place and clearly had been identified by prosecution witnesses.  The lies he told in interview clearly counted against him and on the evidence it was perfectly reasonable for the jury to draw a distinction between him and Shorter.  There were eight or nine of them in the group and there were four tiers of seriousness.  He was a foot soldier and one who played no active part in the robbery.  Therefore he was in the least serious category of offender.  He was a youth of good character and it was a very great shame that he became involved that night.  For a man of intelligence it was a serious matter.  Account was taken of all the matters advanced in mitigation on his behalf including the excellent testimonials.  The learned judge said it was all the more depressing that he had chosen to involve himself in this offence.  The guideline case Attorney General's Reference Nos 4 and 7 of 2002 [2002] 2 Cr.App.R (S) 77 (Lobban and Sawyers) stated that custodial sentences should be imposed for offences of this seriousness unless there were exceptional circumstances.  The learned judge continued:
"There is, as far as I am aware, no developed jurisprudence as to what might constitute exceptional circumstances for these purposes.  It appears, however, from my own experience, that they must be restricted to circumstances relating to the offence.  
The sentencing judge may not, as I have sought to do in the past, look to the future of the offender and seek, through a continuously monitored community sentence, to ensure that the offender pursues his productive life outside crime."   
He continued:
"If it were open for me to do so, I would give serious consideration to such an approach to your sentence, but I do not believe it is open to me.  
The Court of Appeal has said that a very firm line must be taken with young men, even first offenders, who engage in street robberies." 
The judge then stated that undoubtedly sending the appellant to a young offender institution would do him no good.  It might even do him some harm and would probably end his studies.  Nevertheless he participated in a very nasty crime the prevalence of which required a deterrent sentence.  In all the circumstances the appropriate sentence was 12 months.  
5.	It is submitted on his behalf by Miss Porter that the judge erred in concluding that the decision in Attorney General's Reference Nos 4 and 7 of 2002 restricted him to a custodial sentence and in concluding that exceptional circumstances were restricted to circumstances relevant to the offence and not to the offenders.  She drew our attention to the decision in Attorney General's Reference No 37 of 2004 [2004] EWCA Crim. 1854, in which the Attorney General was refused leave to refer a three year community rehabilitation order imposed on a 20-year-old for attempted robbery of a sub-post office.  The judge had a psychiatric report stating that the appellant there had a depressive illness complicated by alcohol dependency and at the time of the offence was in an abnormal mental condition.  The court stated at paragraph 11 that sentencing is not always a mechanical exercise and that in that case the experienced judge had taken the view, clearly after careful thought, that the interests both of that offender and of the public generally would be best served by making the order that he did.  Although not referred to in oral submissions, the case of Attorney General's Reference No 31 of 2003 (McInerney and others) [2004] EWCA Crim. 1934 is also referred to in the grounds of appeal and the advice.  In the case of McInerney (one of those the subject of that decision) this court refused to interfere with a sentence of a 24 month supervision order with a requirement to attend an intensive programme and curfew order on a 16-year-old convicted of robbery and intimidation.  In considering what constituted exceptional circumstances, this court stated at paragraph 18 that:
"Exceptional circumstances can include the real possibility that greater protection to the public would be provided by a meaningful sentence in the community rather than a custodial sentence." 
Reference was also made to the Sentencing Advisory Panel's levels of offence and the recommendation that in respect of Level 1, an offence involving intimidation or threats of force equating to common assault with no weapon present, the Panel had recommended a community penalty as a starting point on a trial with a sentencing range of two years custody.  
6.	We conclude that the judge erred in stating that he was precluded by authority from considering a non-custodial sentence in the circumstances of this case.  He said that he would have given serious consideration to such an approach had he felt free to do so.  But for that statement we consider that the prospects of this appeal were fragile indeed.  Even with that statement we have found this a difficult sentencing exercise.  This was a robbery at about midnight by a group of eight who were intimidating to the victim by their presence.  The victim feared that one of the group had a weapon.  Undoubtedly, as the sentencing judge said, the appellant participated in this crime, which by its prevalence required a court to have regard to the need to deter by its sentences.  The ringleader, admittedly a person with a bad record, got three years notwithstanding his plea which indicates the level of seriousness of the event.  However, the appellant was in the bottom of the four tiers of seriousness identified by the judge because, as the judge stated, he played no active part.  He was assessed as having a low risk of harm to the public or of reoffending.  He was a man of good character pursuing his education degree at the University of Hertfordshire through one of its colleges and he had strong support from members of his church and community.  
7.	We have concluded that the expectation that may have been engendered in the appellant by what the judge said his preferred option would be suffices to allow us to set aside the custodial sentence.  The judge after all had the opportunity of observing the appellant give his evidence and considering the incident and the rest of the evidence in the round.  Accordingly, we set aside the sentence of 12 months' detention and replace it with a community punishment order requiring the appellant to perform 100 hours of work not of his choosing.  The appellant has not been present and will be required to consent to this and it will be necessary for the conditions that a sentencing court would explain to a person about to be sentenced to be explained to him when that consent is given.  To that extent this appeal is allowed. 
8.	MISS PORTER:  My Lord, I am grateful. 
9.	LORD JUSTICE MAY:  If you could go and see your client and explain what has happened.  If you will say we are sorry it took place without him but we thought he had waived his right and were getting on with it.  When you are ready let the court know and we will have you both back and explain to him and seek his consent. 
10.	MISS PORTER:  My Lord, I am grateful.
Later:
11.	LORD JUSTICE MAY:  Richard Cowell, if you would not mind standing up.  I am sorry that your appeal took place in your absence.  We thought you were not coming here and had waived your right.  But Miss Porter will have told you that your appeal was successful and I trust you will forgive us for producing that result in your absence.  Successful, however, to the extent that we have allowed your appeal, quashed your sentence of 12 months in a young offender institution but we propose to substitute for that a community punishment order of 100 hours.  
12.	A community punishment order is what was recommended in your pre-sentence report and we are obliged to explain to you what that means and to invite you to consent to the order being made.  What it means is that you will have to go to an appropriate officer who will require you to do appropriate work as part of the community punishment.  You are obliged to keep in touch with the responsible officer in accordance with his instructions that he or she may from time to time give, and you are obliged to perform the number of hours specified in the order of such work which we are going to put as 100.  If you do not comply with the officer' instructions or do what is required of you under the order, there are certain consequences which may follow, which include that the matter may be brought back to court, the order may be revoked and the court may have to reconsider what should be done in your case.  Do you understand that?  The reconsideration could include imposing any penalty which the court had power to impose in the first place.  Do you understand that?  The court also has power to review the order on the application either of yourself or of the responsible officer.  I trust you understand all that? 
13.	THE APPELLANT:  Yes, I do.
14.	LORD JUSTICE MAY:  Do you consent to us making the order? 
15.	THE APPELLANT:  Yes, I do.
16.	LORD JUSTICE MAY:  Thank you very much.  In that case that is what we will do.