No: 2008/4476/A7 
Neutral Citation Number: [2008] EWCA Crim 2820
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Tuesday, 11 November 2008
 
B e f o r e:

LORD JUSTICE HUGHES 

MR JUSTICE PLENDER 

THE RECORDER OF BRIGHTON AND HOVE
(His Honour Judge Brown QC) 
(Sitting as a judge of the CACD) 
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REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 OF THE CRIMINAL JUSTICE ACT 1988 
ATTORNEY‑GENERAL'S REFERENCE NO 124 OF 2008   
 
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Mr G Patterson appeared on behalf of the Attorney General
Mr J Woodcock appeared on behalf of the Offender
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J U D G M E N T
1.	LORD JUSTICE HUGHES:  Her Majesty's Attorney General seeks leave to refer to this court a sentence of three years' custody imposed after a trial for conspiracy to rob.  We give leave.
2.	The conspiracy referred to events of a single day in June of 2007.  The defendant Doran was party to two robberies that day.  Both of them were targeted upon elderly householders in their own homes and both were committed by two men working together.  It is plain that they were in a car cruising the Thames Valley area looking for suitable targets.  
3.	The first victim was a gentleman of 76 who lived in Tring.  The robbers saw him get off a bus on his way home and they would have seen that he was using two walking sticks.  They followed him into his house and began searching it for things to steal.  A limited degree of force was applied to him when he tried to activate a fitted panic alarm.  He was seized and gripped tightly by his forearms which left nasty bruises of which we have seen the photographs.  Quite apart from the physical bruises, and really more importantly, he was as a result very unpleasantly shocked and, as so often, thereafter frightened of being in his home alone.  He needed a prescription of some medication and he needed additional locks fitted, but the important thing is that the sense of security to which anybody is entitled in his own home had been weakened.
4.	The second victim was some miles away in Henley.  She was a lady of 86.  In her case the robbers broke a window in her house and forced the front door; she found them in the house.  She tried to push one of them away.  They did not use force upon her.  They did oblige her to sit down while a search was made and they pulled the telephone wires out of the socket.  She was physically unhurt but inevitably was left worried and anxious about her personal security.
5.	This defendant left traces by way of fingerprints and DNA material.  Although he was identified reasonably promptly it was not apparently possible to arrest him for six months.  He has never admitted his responsibility for these offences.  He declined to answer questions when he was interviewed by the police and he pleaded not guilty at court, although he neither gave nor called evidence, nor was it necessary for either of the householders to have to come to court.  
6.	This defendant was born in February 1989, so he was eighteen‑and‑a‑half at the time and 19 by the time he came to be sentenced.  He comes from a travelling family.  He has some previous convictions.  They are not of the most serious but one in particular is directly relevant.  We can, for all practical purposes, leave out of account a reprimand for shoplifting when he was 12 and a conviction for driving whilst disqualified ‑ except to note that the latter resulted in a short custodial sentence which did not deter him from further offences.  In 2005 when he was 16 he and another had committed a distraction burglary at the house of a gentleman of 78 years of age.  There was not on that occasion any confrontation such as there was in both the cases with which we are dealing.  It is however plainly a similar kind of offence.  It is very likely to have involved selection of a vulnerable victim and to an extent the fact that on this occasion the householders were confronted demonstrates some escalation in the offending.  On that occasion, as we have said, he was 16 and the sentence was a referral order.  Lastly, as a matter of history he was on bail at the time that he committed the present offences ‑ on bail however for a quite different kind of offence, namely the possession of cannabis.
7.	The judge had in the pre‑sentence report information about the defendant which she plainly regarded as giving some, albeit very limited and rather uncertain, scope for optimism that he might be motivated to change his pattern of behaviour.  It is right that his family was well regarded by the pastor of a local church group who wrote to say so.  Other references apparently in support of an old job application do not seem to us to take the matter any further at all.  
8.	Doran lived with his parents and he had since the offences in the intervening year or so formed a steady relationship with a girlfriend who lived with him.  They were still together despite his arrest and she was present in court to support him.  It was the fact that they had together suffered the misfortune of a stillbirth.  He had been working in the intervening time for the young lady's father landscaping and in scrap metal dealing, which was the man's trade.  The defendant has no educational qualifications but it is right to say that on remand he had applied himself to some extent, he had completed a numeracy course and we accept what we are told that he has since applied for such other courses as are available and he has behaved himself perfectly well in prison and that is reflected in his having achieved enhanced status.  
9.	The probation officer reported that although he was denying his offences he was able to understand the impact of offences such as this on householders such as those who had experienced his offences ‑ in other words he was capable of displaying a degree of empathy.  In his favour we remind ourselves that just sometimes denial can be explained as unwillingness to admit to family and friends what has been done.  Whether that is the case in the present instance it is impossible to say.  
10.	There had been some drug misuse in the background.  It had certainly been the cause of the 2005 distraction burglary.  On the present occasion, since he denied having been present and had given no account, it was impossible to say whether these offences were motivated by drug dependence or the wish to acquire money to feed a habit, but it is certainly true that at least one of the robbers said something to that effect to the first of the householders.  The probation officer seemed prepared to accept the defendant's assurance that since becoming a couple with his girlfriend he had in deference to her wishes stopped using drugs, although she also recorded that he appeared to be minimising his problems and his current use.  There was no independent material one way or the other.  
11.	The probation officer was persuaded to suggest a suspended sentence with specified activities.  The judge rejected that as out of the question for offences of this kind and she was plainly right.
12.	We apply ourselves to two questions.  First, what the appropriate bracket or tariff is for offences of this kind, and secondly, whether there was in this case a demonstrated reason which justified departure from it.  
13.	The Sentencing Guidelines Council's recent guidelines for robbery do not contain guidelines for this kind of robbery inside somebody's home.  Such offences were however given carefully reasoned consideration by this court in Attorney General's Reference No 38 to 40 of 2007 (Crummack and Others) [2008] 1 Cr.App.R (S) No 56 at page 319.  A number of previous cases are there reviewed, including the earlier case of Attorney General's Reference No 48 of 2000 (Johnson) itself reported [2001] 1 Cr.App.R (S) 123 to which Mr Patterson on behalf of the Attorney has specifically taken us today.  We agree, as did counsel before us, that the reference at page 15 of the Guideline Council's guidelines to the bracket of 13 to 16 years for a first‑time offender being dealt with for violent personal robbery in the house is plainly not intended to apply to the present kind of case.  It is clearly drawn from cases such as O'Driscoll (1986) 8 Cr.App.R (S) 121 involving really serious violence, often tying up and the like in the course of the robbery in the home.  That case (O'Driscoll) was one such, involving the striking on the head with a hammer of the 80‑year‑old victim.  Putting that elevated bracket of cases to one side, we also agree that robberies in the home are not intended by the guidelines to be treated in the same way as street robbery or so‑called mugging dealt with particularly in the three bracket treatment at page 11 of the guidelines.  The reason for that is not difficult to find.  The factor of invasion of a person's home is a very significant one.  We do however agree that some regard needs to be had to the general level of sentencing as advised by the Council's guidelines for offences of robbery in an effort to place offences of this kind sensibly in relation to other offences of robbery.  In Crummack this court postulated an approach based on looking at a street robbery with similar features and applying an increment to the sentence.  Reasoning in that manner in a case which involved threats with weapons and a degree of gratuitous violence in the form of punches it arrived at a starting point of about seven‑and‑a‑half years or thereabouts after trial, increased in some of the cases there considered for particular factors to something of the order of eight to eight‑and‑a‑half.  We should record that that case referred also to R v Purcell [2008] EWCA Crim. 894.  That was a case of a much more serious kind.  An 80‑year‑old widow who was knocked over, punched a number of times and made to bleed heavily.  Threats were also made to kill her if she did not produce the money.  This court there upheld an indefinite sentence with a minimum term of five‑and‑a‑half years which postulates a determinate sentence of about 11 years in the case of a late plea of guilty.  As to that case we should observe, first, that the circumstances were very considerably worse.  Secondly, to say that a term is not manifestly excessive is not to say that it is the tariff.  Thirdly, that defendant also had to be dealt with for a quite separate sexual offence which under the principle of O'Brien will have been dealt with by increasing the minimum term.
14.	These present offences involved no weapons and no violence, save for the gripping of the first householder.  It does not seem to us that it is sensible to apply any arithmetical formula to guidelines for a different category of offence, but as we have said we are conscious that sentence for this kind of robbery must bear sensible relationship to sentences for other robberies.  
15.	It seems to us that sentence for this kind of unpleasant robbery, targeting elderly householders without weapons or significant violence, ought to be in the very general range of five to six years after a trial.  We do not propose that that should be regarded as a tariff set in stone, but it is the broad appropriate level to be gathered from the previous cases and, by analogy, from the general shape of the guidelines.  It follows that the sentence of three years passed after trial was significantly below what we would ordinarily have expected.  
16.	Was there in this case any occasion to depart that significantly from the appropriate level?  The judge said simply this: "It appears from the pre‑sentence report that you are motivated to change."  She coupled that with the absence of weapons.  In so far as she was persuaded that the absence of weapons brought the sentence down to something like three years we respectfully disagree.  Was there a sufficient basis for making a substantial departure from the appropriate level of sentence for the personal circumstances of this defendant?  We should make it clear that conscious clemency for good reason remains in the armoury of the judge.  Sentencing is not a simply mechanical process.  It is and it must be individual.  If the judge is alive to the ordinary sentence and departs from it for reasons given this court will be likely to uphold him or her.  The difficulty with this case is that whilst it would be nice to hope, and we do hope that Mr Doran does indeed intend to lead an entirely respectable life hereafter, the material for it was really paper thin.  We are persuaded in this case that the judge cannot have concluded that there was sufficient to make a departure of the kind that we have indicated and she must, in effect, have started lower than was necessary.  We do however take account of the age of this young man.  We are glad to see that he is behaving well in prison.  We are conscious that he is being re‑sentenced and that particularly at that age that has its own important impact.  It is in nobody's interest that if he has indeed the glimmerings of motivation, which the probation officer believed might be there, they should be snuffed out by this court.  However, we are quite satisfied that the sentence is too low.  We quash the sentence of three years and substitute one of four‑and‑a‑half years.