No: 05/4099/A6
Neutral Citation Number: [2005] EWCA Crim 2692
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Thursday, 13 October 2005
 
B E F O R E:

LORD JUSTICE LATHAM 

MR JUSTICE NEWMAN 

MR JUSTICE BEAN 

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

ATTORNEY-GENERAL's REFERENCE NO 82 OF 2005
(JOHN TOULSON) 
 
 - - - - - - -
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)
 - - - - - - -
MISS B CHEEMA appeared on behalf of the ATTORNEY GENERAL 
MR G FISHWICK appeared on behalf of the OFFENDER
 - - - - - - -
J U D G M E N T 
1.	LORD JUSTICE LATHAM:  This is an application by the Attorney-General for leave to refer to this court under section 36 of the Criminal Justice Act 1988 a sentence imposed on 5th July 2005 on the offender at the Chelmsford Crown Court.  He was then sentenced to a drug treatment and testing order for a period of two years by Mr Recorder Baker for three offences of robbery.  We give leave to the Attorney to refer those sentences.
2.	The facts were that on two evenings in January 2005 this offender committed three robberies at petrol stations where lone cashiers were working.  The first occasion was at 2.30 am on 1st January 2005, when he went to the Shell petrol station, High Road, Epping Forest, carrying a spray deodorant.  The cashier was working alone in the shop.  He was a student from Pakistan who had only recently come to this country.  The offender collected a bottle of soft drink from the chill cabinet, walked to the till and passed the bottle through the gap in the glass barriers between the till and the customer area.  As the cashier opened the till in order to collect the coins which the offender had handed over, he was sprayed in the eye from the deodorant spray.  Fortunately, the cashier was wearing glasses; and the spray merely hit the glasses.  But nonetheless it had the desired effect, because the cashier moved backwards, and, when he did, the offender leant through the gap and sought to obtain money from the till.  He in fact took about £106.  The cashier managed to press the panic button and was clearly terrified by the offender, believing at one point that the offender was going to try to get through into the till area.  In the course of the incident the offender must have cut his hand, because he left some blood on the till.  
3.	The offender then went back to his car and an hour later arrived at the Shell petrol station at Apex Corner, Mill Hill, where, once again, he went into the shop.  There was nobody else in the shop.  He placed some items on the counter, and the cashier scanned them into the till.  When the offender handed over a £5 note the cashier opened the till.  The offender then sprayed him in the eyes with the deodorant spray from about a metre away.  That shocked the cashier, who, like the previous occasion, stepped back from the till, whereupon the offender bent over and removed cash from it.  He left with £150 or thereabouts.
4.	Twenty-four hours later at a third all night petrol station at Godstone Road, Whyteleaf in Surrey, the offender went once again into the shop.  He made a pretence of telephoning someone to obtain an order for what he should buy.  He then went to the cash desk, where the cashier took his money.  When he opened the till to hand change over to the offender, the offender lunged at him, pushing him with both hands, causing him to fall backwards.  When he did so, the offender then leant over and grabbed about £340 from the till.  When he did that, his watch became dislodged and fell to the ground, and when he left the shop he failed to pick it up.
5.	As far as the two shops which were the subject of the robberies on the previous evening were concerned, they were fitted with CCTV cameras.  Those showed that the robber had been wearing a distinctive jacket, with a company logo on it.  That turned out to be the logo of a company "Brighthouse" for whom the offender had at one time worked.  
6.	DNA samples were taken from both the tills robbed that night, where the appellant had left blood on them.  The watch was also examined, and from it were taken samples from which DNA could be extracted.  Those resulted in a match with the offender, and the consequence was that the offender was arrested.
7.	When he was arrested he was interviewed in the presence of his solicitor.  In the first interview, which was in fact before the police in question had known about the third robbery, he denied the two robberies on 3rd January.  But subsequently and when the results of the DNA testing became known in relation to both those robberies and the one on 4th January he pleaded guilty at the first available opportunity.
8.	The Recorder when sentencing him had before him the list of antecedents, which makes it plain that the offender was a habitual criminal.  He had 54 previous convictions for theft and kindred offences, and most significantly for present purposes had been sentenced to six years' imprisonment at the Wood Green Crown Court on 9th April 1999 for five offences of robbery, with a further offence being taken into consideration.  He was released from the six-year sentence of imprisonment, we understand it, some time in 2003.  
9.	After his release from prison there is no doubt that he reverted to the drug-taking habits which had been part of his lifestyle during most of his adult life up until then.  He is now 30 years of age, and, although an intelligent man, had a troubled childhood and undoubtedly commenced both drug-taking and offending as a youth.
10.	The Recorder also had in front of him reports which recorded the background and the fact that drug-taking had been, without doubt, a significant reason for his continual offending.  The report from Katie Castle, the probation officer, raised the possibility of a drug treatment and testing order on the basis that she believed that the offender's position since his release from the previous prison sentence was such as to justify the conclusion that there was now hope that he might be minded to abstain from drugs, and, if he did so, there was a real prospect that he would not slip back into his offending ways.  One particular reason for that was his relationship with a girl, with whom he had had a child, and that was thought to provide some real prospect of stability in his life and justified giving him the opportunity to prove that his intentions could in fact be put into effect.
11.	That material persuaded the Recorder to take what the Recorder himself recognised and acknowledged was the highly unusual step recommended by the probation officer.
12.	We have before us the reports which informed the Recorder, and a subsequent report, which suggests that, thus far at least, the offender has been as good as his word and has been responding positively to the order that the Recorder made.
13.	Miss Cheema on behalf of the Attorney General has, however, said that there was no sufficient justification in this case for departing from the general principle, which is clearly set out in Attorney-General's Reference No 28 of 2001 (Daniel McCollins) [2002] 1 Cr App R (S) 250 and Attorney-General's Reference No 66 of 2003 (Moussin Boujettif) [2003] EWCA Crim 3514, that in cases of serious offending, particularly where significant violence or threats of violence are involved, a drug treatment and testing order is inappropriate.  In such offences, the public needs to be protected from the commission of such offences by the imposition of deterrent sentences, and a drug treatment and testing order might appear to the public to be a wholly disproportionate response to serious criminal wrongdoing.  
14.	We acknowledge that that is and must remain the general principle; but it is important to note that neither Judge LJ in the first of those cases nor Rose LJ in the second sought to impose a straitjacket on sentencers in cases where they considered that in the public interest some other course than a deterrent sentence should be at least tried.
15.	We have no doubt that in this case the usual and proper order would have been a substantial sentence of imprisonment, and that is what the offender will undoubtedly face if he fails to complete satisfactorily the drug treatment and testing order.  But in all the circumstances of the case, we do not feel that we should interfere with the chance that the Recorder here gave to this particular offender, bearing in mind the fact that, in the scheme of things, these robberies, though of vulnerable premises, did not have the hallmarks of serious violence which is often associated with such offences.  That is not to gainsay their seriousness, but to put them into context, bearing in mind that the way in which Rose LJ set out circumstances which would not, except in rare occasions, justify the making of a DTTO, namely "offences involving serious violence or threats of violence with a lethal weapon".
16.	Bearing all those matters in mind we have come to the conclusion that it was undoubtedly proper for this case to be referred to this court, but that we are persuaded at the end of the day that we can properly conclude that it would not be necessary in the public interest to interfere with the sentence that has been imposed.  The sentence is accordingly affirmed.