No: 200503862/A1 
Neutral Citation Number: [2005] EWCA Crim 2485
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Thursday, 6th October 2005
 
B E F O R E:

THE VICE PRESIDENT
(LORD JUSTICE ROSE) 

MR JUSTICE GOLDRING 

MR JUSTICE WILKIE 

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

ATTORNEY-GENERAL's REFERENCE NO 77 OF 2005    

(DAVID TIMMINS) 
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Computer Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
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MR M HEYWOOD appeared on behalf of the ATTORNEY GENERAL 
MR D WHITE 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 a sentence said to be unduly lenient.  We grant leave.
2.	The offender was born in November 1984, so he is now 20 years of age.  On 14th March 2005 he faced an indictment containing eight counts.  At a pre-trial review he pleaded guilty to the fourth count, which was robbery of James MacDonald of a mobile telephone.  Sentence was adjourned for reports and, on 22nd June 2005, he was sentenced by Mr Recorder Sanghera, sitting at Worcester Crown Court, to a community penalty consisting of a community rehabilitation order of 12 months and a community punishment order of 100 hours. He was also subjected to a curfew order and directed to register and comply with the requirements of an offending behaviour program.
3.	The facts were these. The offender is just under 6 feet tall and lived in Redditch.  The victim was 16.  On the evening of 20th November 2004 he had been out with friends including another 16 year old called Martin Lacey.  At about 1.40 am they were walking home along a footpath in Redditch.  The offender was out with another young man known as 'Panda'.  The offender saw the two 16 years old and called on them to stop. The boys walked on and they were concerned.  The offender again called on them to stop and they did. He asked for a cigarette.  He was told they did not have one. They recognised him and they also recognised 'Panda'.
4.	The offender was wearing a top with a hood up and he looked as though he was affected by drugs.  He demanded money. He was told that it had all been spent and he asked for their mobile telephones.  He approached more closely, holding a bladed weapon, which looked like a Samurai sword, in his right hand. At first this was sloped over his shoulder.  It was about two feet long.  Panda held back and did not involve himself.  Indeed, he said to the offender "just leave it".  The offender demanded the telephones of the two boys.  They refused. The offender became more aggressive and threatened to chop off their hands and he then put the sword in his left hand, clenched his right fist and threatened to punch the victim in the face.  He asked if the victim wanted to be battered. He hit the victim once with the sword on the shoulder or arm but no injury was caused.  He later hit out again with the weapon and he also slapped the other 16 year old across the side of his face with his open hand.  In fear, James MacDonald handed over his mobile telephone. The offender told him to put it on the ground and back away.  Martin Lacey refused to hand over his telephone and said he recognised the offender. The offender sought to suggest that he did not.  Panda returned and persuaded the offender to walk away, which he did, taking MacDonald's telephone with him. The whole confrontation lasted about 5 minutes and James MacDonald was left feeling very shaken and did not sleep that night.
5.	The offender was arrested on 22nd November 2004. In interview he denied being responsible and claimed not to have been there but to have been at home, watching a football match between Birmingham and Blackburn on television.  In a later interview he said he might have been mistaken because it was pointed out to him that that match had been televised the previous evening. But he continued to maintain an alibi and denied having possession of the weapon to which we have referred.
6.	However, at a video procedure on 7th December, he was identified by both the 16 year olds.
7.	The factual basis of the plea, as recorded on counsel's brief, was "sword in sheath, hit once to arm with sword, slapped a face, threat to cut hands off".  The offender appeared before the Redditch Magistrates on 21st December and was remanded in custody where he remained until he was sentenced 6 months later.
8.	On behalf of the Attorney-General Mr Heywood draws attention to two aggravating features:  first, the use of a large bladed weapon to threaten and hit the victim; and, secondly, the circumstances of the offence, namely at night and in the town centre when the victims were two youths considerably younger than the offender. 
9.	Mr Heywood draws attention to the mitigating features, namely the plea of guilty at an early stage and the fact that the sword was not used to cut the victim.
10.	The offender has unimpressive antecedents.  He has been convicted of 12 offences since August 2002, particularly in relation to vehicles and drugs.  He has been dealt with in a variety of ways, none of them previously custodial.  On 28th November 2002 he was fined and ordered to pay costs by the magistrates for an offence of affray and on 6th December 2004 (which was of course after the present offence was committed) he was made the subject of a community punishment order and community rehabilitation order by the magistrates and was ordered to participate in an intensive control and change programmes. He was also ordered to pay costs and compensation, both of which orders we understand have subsequently been revoked.
11.	For an offence of failing to surrender to custody he was fined. Those offences for which he was dealt with on 6th December had been committed in June and September 2004 and he was therefore on bail in relation to those offences when the present robbery was committed.  He has also been cautioned on three occasions, including an occasion in 1999 for theft.
12.	There was before the Recorder a pre-sentence report which described the offender's risk of reoffending as statistically high.  The offence had occurred when he was intoxicated by alcohol and had a history of offending since the age of 14.  The conclusion of the writer of the report was that there was a medium likelihood of re-offending with a medium risk of serious harm to the public.
13.	The submission which is made by Mr Heywood, on behalf of the Attorney-General, is that the non-custodial sentence which was passed in this case was unduly lenient, there being no exceptional circumstances such as might justify a non-custodial penalty, in the light of the decision of this Court in Attorney-General's Reference Nos 4 and 7 of 2002 [2002] 2 Cr App R(S) 345 (see in particular paragraphs 4 and 5 of the judgment).
14.	The submission which Mr Heywood makes is that, in consequence, the sentence passed was unduly lenient in failing to mark the gravity of the offence, the aggravating features and the need to protect the public, particularly those who are young and vulnerable.
15.	On behalf of the offender, Mr White, in an admirably succinct submission, concedes that the sentence passed was a lenient one. He stresses that the offender pleaded guilty at the earliest opportunity, that he is still only 20, that he had spent 6 months in custody for the first time before he was sentenced, and no injury was caused in the course of this incident.
16.	Mr White puts in the forefront of his submission a supplementary report prepared by the probation officer, for the benefit of this Court.  From that, it appears that the offender is taking advantage of the opportunity which has been presented to him by the non-custodial sentence which was imposed upon him.  Furthermore, he has carried out 36 of the 100 hours of the community punishment order.  
17.	The submission which Mr White makes is, even if this Court concludes that the sentence passed was an unduly lenient one, we should exercise our discretion in favour of not interfering with the sentence which was passed, having regard to events since.  That submission persuades this Court.
18.	There is no doubt that the sentence passed by the learned Recorder was an unduly lenient one.  The sentence which he ought to have passed in relation to the offence should have been of the order of 3 years' detention in a young offender institution.  That said, however, in the particular circumstances of this case, we do not think that the public interest would be served by interfering with the sentence which was passed and therefore we decline to do so.