No: 2005/02772/A2
Neutral Citation Number: [2005] EWCA Crim 2741
IN THE COURT OF APPEAL
CRIMINAL DIVISION
	Royal Courts of Justice
The Strand
London WC2

Wednesday, 5 October 2005
B e f o r e:

LORD  JUSTICE  TUCKEY

MR  JUSTICE  BEAN

SIR  CHARLES  MANTELL
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ATTORNEY GENERAL'S REFERENCE No. 48 of 2005

UNDER  SECTION  36  OF

THE  CRIMINAL  JUSTICE  ACT  1988
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R E G I N A

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NATHAN  NIEWIADOMSKI

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Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4A
Telephone No: 020-7421 4040
(Official Shorthand Writers to the Court)
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MR SIMON DENISON appeared on behalf of the ATTORNEY GENERAL

MRS MAXINE KRONE appeared on behalf of THE OFFENDER

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J U D G M E N T

Wednesday, 5 October 2005

LORD JUSTICE TUCKEY:  

1.	This is an application by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court a sentence which he considers to be unduly lenient.   

2.	The offender, Nathan Niewiadomski, then aged 19, was sentenced on 27 April 2005 by His Honour Judge Lea in the Leicester Crown Court to two years' detention in a young offender institution, having earlier pleaded guilty at the plea and directions hearing to one count of attempted robbery.  
 
3.	The victim of the offence was a vulnerable 64 year old woman.  As she was walking along a street in Leicester on 22 December 2004 the offender attacked her from behind and attempted to snatch her handbag which was slung over her shoulder.  In doing so he grabbed the bag and pulled it hard in an attempt to release it from the victim's grip.  This caused her to be pulled towards him.  As this happened he punched her in the left eye with a clenched fist.  The force of this blow made her fall backwards onto the pavement.  
 
4.	The facts were opened to the judge on the basis that once the victim was on the ground the offender had kicked her on the thigh whilst he was trying to take the bag from her.  However, the judge did not mention the kick in his sentencing remarks and so we proceed on the assumption that the only blow struck was the punch.  Despite this nasty attack the victim managed to keep hold of her handbag.  Other members of the public saw what was happening and ran to help her.  The offender ran off.  He was chased by two members of the public and a plain clothes police officer.  The officer caught and detained him nearby.  The offender struggled when he was caught and said, "I will pay you.  I was made to do it."  He was wearing a dark, hooded top with the hood up and a dark woollen hat.   

5.	When interviewed by the police he said that he had accidentally bumped into someone whom he now realised was the victim.  She had flailed her arms at him and he ran away in a panic.  He denied that he had tried to steal her bag or that he had punched her.  By his subsequent plea of guilty he made it clear that this denial was untrue.  
 
6.	The physical injuries to the victim consisted of a swollen and reddened cheek, bruising under her left eye which went black, a small cut under her eye where her glasses had caught her eye (the glasses which were worth £200 were broken in the incident).  Her left arm was also very painful.  She had been visibly shaken and distressed after the attack, which had left her very frightened and afraid to go out. 
 
7.	Since April 1999, when the offender was aged 13, he has been sentenced on eighteen separate occasions for a total of 75 offences.  Those offences include nine of common assault, two of assault occasioning actual bodily harm, three of affray, seven of damaging property and three of theft or burglary.  He has been sentenced to an attendance centre, conditional discharge, supervision order, curfew orders and community rehabilitation orders, each of which he has breached.  His more substantial sentences before this one were a twelve-month detention and training order, and in February 2005 a sentence of seven months' detention in a young offender institution.  At the time of this offence he was on bail and as part of his bail conditions had reported to the police about half an hour before this attempted robbery.

8.	The aggravating features of the case are obvious.  The offence was committed against an elderly and vulnerable female victim.  The violence involved was more than trivial.  The victim has been greatly affected by the offence.  The offender has an appalling record and, as it transpired, this offence was committed in order to fund a long‑term drug addiction.  

9.	The mitigating features were the offender's age and that he had pleaded guilty at the plea and directions hearing despite his earlier denials, although the fact that he was caught at the scene made his prospects of defending the case slender.  But, more importantly, he had expressed remorse for the offence and had written to say sorry to the victim.  The court was told that he had been making progress in custody after an unpromising start, and that he and his partner were expecting a child, which has since been born.  This had motivated him to behave better in the future.  
 
10.	Taking those aggravating and mitigating features into account, Mr Denison for the Attorney General submits that this was an unduly lenient sentence.  In the reference he refers us to a number of cases which are well‑known to this court, from which he makes the submission that the correct sentence for this offence after a trial would have been five years, which fell to be reduced to take account of the offender's age and his plea of guilty.  Miss Krone, on the other hand, puts the matter compendiously by saying that the sentence of two years was enough.  She accepts that it was a lenient sentence, but one with which this court should not interfere; it fell within the range of sentences which it was permissible to pass for an offence of this kind.   

11.	We do not accept Miss Krone's submissions.  We think that the least sentence which the judge could have passed on the offender after a trial in this case is one of four years' detention.  This takes account of his age and the aggravating and mitigating features to which we have referred.  Such a sentence would fall to be reduced by the plea of guilty.  We consider that, having regard to the plea and the other mitigation, the least sentence which the judge could have passed was one of three years.  It follows that we think that a sentence of two years' detention was unduly lenient.  

12.	The question for us is whether we should interfere with that sentence, given that we must take account of double jeopardy.  Having considered this carefully, we have decided that it would not be right to leave the sentence passed by the judge but to substitute a sentence of two‑and‑a‑half years' detention for the one that he passed. 

13.	Accordingly, we grant leave to refer the sentence imposed by the learned judge on this offender to this court.  We quash it and substitute a sentence of two‑and‑a‑half years' detention in a young offender institution.  

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