No. 2010/00946/A8

Neutral Citation Number: [2010] EWCA Crim 2095
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Wednesday  18  August  2010
B e f o r e:

LORD  JUSTICE  THOMAS
MR  JUSTICE  TREACY
and
MR  JUSTICE  SAUNDERS
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ATTORNEY GENERAL'S REFERENCE No. 11 of 2010

UNDER  SECTION  36  OF

THE  CRIMINAL  JUSTICE  ACT  1988

R E G I N A

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JAMES  BEANEY
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Mr D Atkinson appeared on behalf of the Attorney General
Mr S Shapiro appeared on behalf of the Offender
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J U D G M E N T
LORD JUSTICE THOMAS:    
1.  Her Majesty's Attorney General seeks leave to refer to this court, under section 36 of the Criminal Justice Act 1988, a sentence of five years' imprisonment passed on the offender by Her Honour Judge Ackner at the Crown Court at Chichester on 22 January 2010 in respect of an offence of robbery.  We grant leave.

2.  The offender is James Frederick Beaney.  He is aged 33.

3.  The facts can be briefly set out.  On 18 June 2009 the offender had called at the house of the victim, an 88 year old widow, Lady Griffiths-Griffin, who lived alone in a cottage in a private road in Sussex.  He had pointed out to her that there were loose tiles on her roof.  She said that it was in hand and sent him away.  There can be no doubt in the light of other evidence that the offender was examining the premises so that he could target the victim.  This is a seriously aggravating feature of the case.

4.  On 19 June 2009 the victim returned to her house at about 5.30pm.  As she was letting herself in she was approached by the offender.  Having pushed the victim into her home, the offender took hold of her.  He put his left arm around her shoulders and said, "I'll have those off you".  He proceeded to wrench the rings she wore from the fingers of her left hand.  He used his right hand to do so and he continued to hold her with his left arm.  He then punched her to her left eye, the force of which knocked her to the ground.

5.  The rings in question were the victim's engagement ring, which was of considerable value, and another ring which she had inherited from her great aunt; it was 150 years old.  The second ring, which was the more valuable, was ultimately recovered by the police in circumstances we shall explain.  The rings were together valued in excess of £5,000.

6.  The police were very quickly on the scene because the offender had been the subject, with another man named Johnson (against whom the case was discontinued), of a police surveillance operation targeting burglaries in that part of Sussex.  One of the officers engaged in the operation had seen the offender get out of the car driven by Johnson and approach the home of the victim at about 4.30pm.

7.  Another officer had seen the victim enter her home at 5.30pm and had then seen the offender approach her.  The officer heard a high-pitched scream and ran to the victim's home.  As she did so, the officer saw the offender running away.

8.  The officer found the victim lying on the hallway floor of her home.  Her left leg was twisted outwards.  Her head was bleeding and she was in a state of shock.  There was apparent bruising to her right elbow and her left hand.  The victim was taken to hospital.  She was found to have an extensive complex fracture to her left femur.  She had to undergo surgery in order to insert a metal pin from her knee to her hip.  She remained in hospital for twelve days.  She also had bruising to her face as a result of the offender's punch. 

9.  About fifteen minutes after the robbery the offender and his driver were stopped by the police.  The offender struggled and was arrested.  No rings were found in his possession.  It was clear that the offender swallowed one as subsequently he callously offered to sell it to an inmate in the prison.  That ring was recovered.  It is also clear that he must have spat out the other ring when he failed to swallow it whilst in the police car. 

10.  Six months after the robbery the victim made a personal impact statement.  She described how she had previously lived independently.  On her return home from hospital she had required carers 24 hours a day.  Although she had regained her independent mobility, she required a walking stick and was in considerable pain.  She is now able to drive again.

11.  It is in our judgment a matter of considerable good fortune that the victim was a lady of such considerable fortitude.  She has displayed that not only in relation to the way that she has established her ability to live on her own again, but by the way she has been able to put the anxiety out of her mind and to overcome the trauma that such vulnerable people often suffer when robbed in such violent circumstances.  It appears from her victim impact statement that, characteristically, she has been more concerned for her family who have had to find time to care for her and to carry the worries that families do about an elderly family member.

12.  Despite the fact that the offender had been caught red-handed, he did not immediately plead guilty to the offence.  He pleaded guilty only in November 2009, about a week before the trial.  

13.  The offender has what the judge rightly described as an appalling record.  He had 51 previous convictions.  He began his career as a criminal when he was aged 17, for he is a career criminal, with offences of dwelling-house burglary.  He has also committed offences of driving whilst disqualified and minor offences of violence.  He has received every form of punishment: supervision orders, probation, and imprisonment.  Nothing has deterred him from his life of crime.

14.  Whilst awaiting sentence, he admitted fourteen other burglaries and attempted burglaries from 1999 to 2009, when the vast majority were committed.  They show an undoubted pattern of targeting elderly persons, mostly women, in their homes.  The burglaries were carried out through trick and did not involve violence.  

15.  There was before the judge, as there is before us, a carefully prepared pre-sentence report.  Its author describes the offender's trade as "actively deceiving people".  He used his employment as a roofer as a guise to target particular properties.  He offended to finance his lifestyle and his drug habit.  The author described how his offending had escalated from earlier impulsive offending to planned, targeted offending.  Under the heading "Assessment of the risk of Serious Harm" the author says:

		"The offence for which [the offender] appears before the court today can only be described as callous.  This offence was clearly premeditated and [the offender] waited for the opportune moment to commit this offence.  There is a clear escalation in the seriousness of his offending behaviour with a defined move from impulsive to premeditated thought.  [The offender] freely admits to the specific and deliberate targeting of elderly and vulnerable members of the community for financial gain and as already highlighted within this report his trade is to actively deceive others.  He is a career criminal who knows no other way of life and therefore the risk of him committing a further similar offence are considered high.  The nature of the risk could range from the use of con-tactics and over-charging to deliberate force/violence as reflected in the index offence.  The force used in this offence resulted in the victim sustaining physical harm (a leg broken in three places and cuts and bruising) and unimaginable psychological and emotional harm.  Taking the above information into consideration [the offender] is assessed as posing a high risk of serious harm to members of the public and specifically to the elderly and those who are vulnerable in the community."

16.  The judge sentenced the offender on the basis that this was a targeted and planned robbery, carried out with callous indifference.  She described his record as "appalling".  She did not consider that the offender was dangerous within the meaning of the Criminal Justice Act 2003, as amended, as this was the first time the offender's offending had escalated to a level of robbery.  She considered that the appropriate sentence following conviction after a trial would have been one of seven years' imprisonment.  She reduced it to five for the plea of guilty.

17.  It is unnecessary to set out the aggravating features.  They are apparent from what we have said.  In summary, they were the targeting of an elderly victim at her home, the carrying out of a planned robbery, the offender's numerous previous convictions and their pattern of escalating seriousness, the gratuitous violence of punching the victim in the face and the injury caused.  It must have been clear to the offender that the victim's rings were of value and of considerable sentimental importance.  He had failed to respond in his long criminal career to anything that had been done to try to rehabilitate him or to make him a useful member of the community.

18.  There is little mitigation.  The offender's plea of guilty was late and he has no convictions for comparable violence.

19.  Her Majesty's Attorney General submits that the sentence is unduly lenient.  The first question that we must consider is whether the offender is dangerous and should have been sentenced to imprisonment for public protection or an extended sentence.  The Attorney General has asked us to consider that course in the light of the clear indications of the offender's dangerousness as set out in the pre-sentence report.

20.	This is a matter over which we have hesitated greatly.  It is the function of a trial judge to assess these matters carefully; this court rarely interferes with the conclusion reached, provided the judge has applied the right principles.  We have carefully considered the remarks of the sentencing judge.  There can be no doubt that she approached the assessment of dangerousness in accordance with principle.  She is not bound by the views of the author of the pre-sentence report.  We have also had regard to the point made by counsel today that when the offender's record is analysed carefully, this is the first occasion on which he committed an offence of serious violence.  In those circumstances, the judge having carefully considered the matter in accordance with the established principles and because this is the offender's first offence of violence, we do not think that it would be right to impose a sentence of imprisonment for public protection and we decline so to do.

21.  However, we have no doubt that the term of imprisonment imposed was unduly lenient.  It was realistically accepted on behalf of the offender that the sentence was lenient.  We start from that base.  It seems to us that on an application of the guidelines which apply to street muggings and burglaries of small commercial premises and the like, this undoubtedly was a case where the starting point on conviction was one of eight years.  It is clear from two authorities, namely Attorney General's Reference 124 of 2008 [2008] EWCA Crim 2820, [2009] 2 Cr App R(S) 29 and Attorney General's Reference No 55 of 2009 [2009] EWCA Crim 2689, that the range of sentences varies.  The mid-point is about eight years.  That is so because in Attorney General's Reference Nos 32 and 33 of 1995, which was approved by Judge LJ (as he then was) in R v Eastap, Curt and Thompson [1997] 2 Cr App R(S) 55, Lord Taylor CJ said:

		"We wish to stress that attacks on elderly people in their own homes are particularly despicable and will be regarded by the court as deserving of severe punishment.  Elderly victims living alone are vulnerable, not only because of the lack of assistance but also because of their own weakness and isolation.  Any attack on such a person is cowardly and can only be expected to be visited by very severe punishment indeed."

22.  In our judgment the sentence of five years was unduly lenient when looked at in the light of the authorities and on a proper analysis of the case.  We consider that had the offender not admitted the offence, a sentence of at least ten years' imprisonment would have been appropriate in the light of the numerous aggravating factors we have set out.  However, having taken into account all the matters and in particular the late plea of guilty we consider that that can be reduced to one of eight years' imprisonment.  We therefore quash the sentence of five years' imprisonment and substitute a sentence of eight years' imprisonment.