No: 201802566 A3 
Neutral Citation Number:[2018] EWCA Crim 2188
IN THE COURT OF APPEAL
CRIMINAL DIVISION
  Royal Courts of Justice
Strand
London, WC2A 2LL 

Wednesday, 25 July 2018 
 
B e f o r e:

LORD JUSTICE SIMON 

MRS JUSTICE CARR DBE

THE RECORDER OF PRESTON ‑ HIS HONOUR JUDGE BROWN
(Sitting as Judge of the CACD) 

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

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R E G I N A 
v 
STEPHEN JOSEPH BRENNAN 

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Ms C Pattison appeared on behalf of the Attorney General

Mr H Ahuja appeared on behalf of the Offender

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Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

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J U D G M E N T
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LORD JUSTICE SIMON:  
1.	The Attorney General seeks leave to refer to this court a sentence passed on the offender in the Crown Court at Taunton under section 36 of the Criminal Justice Act 1988 as being unduly lenient.  

2.	On 6 April 2018, the offender, who is now aged 32, pleaded guilty to a single offence of robbery, contrary to section 8(1) of the Theft Act 1968.  

3.	On 25 May, he was sentenced by His Honour Judge Ticehurst to a community order for 3 years with a rehabilitation activity requirement for 40 days and a 12‑month drug rehabilitation order.  In addition, a restraining order was imposed prohibited the offender from going within 100 yards of the One Stop convenience store at Rosebery Avenue in Yeovil for a period of 7 years.  

4.	On 8 February 2018, Kymm Shepherd, aged 65, was working as a cashier at the One Stop store in Yeovil.  At about 7.45 pm, the offender entered the store.  He had attempted to conceal his identity with his hood zipped up so that only his eyes were visible.  Ms Shepherd had seen him zipping up his hooded coat and thought she recognised him as someone who was barred from the store.  He approached the counter and showed Ms Shepherd that he was holding a meat cleaver in his right hand. The meat cleaver was approximately 10 inches in length with a blade of about 4 inches deep and 6 inches long.  He put the meat cleaver on the counter in front of Ms Shepherd still holding it with his right hand and demanded several times, "Give me the money".  Ms Shepherd recognised his Irish accent and this confirmed to her that this was the man who had been barred from the store.  She refused to hand over any money, telling him to get out as he was barred.  The offender made further demands for money.  Again Ms Shepherd told him to get out.  He then walked to the wine display and removed three bottles of wine priced at £19.98 and left the store without looking at Ms Shepherd or saying anything else.  She immediately told a colleague, "I don't believe what's happened here, he's just threatened me with a meat cleaver".  

5.	The shift manager at the store received a telephone call about the incident and went there.  He checked the CCTV footage, which showed the offender entering the store wearing a black gilet with the hood up, and only his eyes and nose visible.  Underneath this he was wearing a dark green long sleeved jacket.  In the reflection of the entrance door the offender is seen to approach the counter.  When he left 17 seconds later he was carrying bottles of wine and a meat cleaver.  The shift manager remembered the offender's name and that he had been barred from the store in December 2017. He called the police and informed them of the robbery.

6.	They found the offender at about 9.10 pm at an address in Hathermead Gardens in Yeovil, not far from the store where the robbery had taken place.  He was wearing the clothing seen on the CCTV footage.  He was arrested and the three bottles of wine that had been stolen from the store were recovered, although two were by now empty.  The meat cleaver bearing the offender's DNA was recovered the same evening in a nearby alleyway.

7.	He was interviewed in the presence of his legal representative and answered no comment to all questions.  He was charged on 9 February with robbery and having an article with a blade or point, contrary to section 139(1) of the Criminal Justice Act 1988.

8.	It is clear from the initial witness statement provided by Ms Shepherd dated 8 February 2018 and her victim personal statement dated 11 April that the incident had led to a significant impact on her emotionally, physically and socially, and had affected her ability to work.  In her initial witness statement she said that immediately after the incident she started to shake, realising she could have been maimed with the meat cleaver.  She said she felt angry, upset, shaken, tearful and worried at what could have happened.  In the later victim personal statement, she described the psychological harm effect of the offending.  She used to love her job but was now counting down the days until she could retire.  She did not think it would affect her so badly but she cries every day.  She has lost confidence and no longer wants to speak to customers.  This resulted in her failing to ask someone for proof of identification, which led in turn to disciplinary re‑training.  She suffers from sleep problems and is tired, so has cut down her overtime work and that has had a financial impact on her.  She feels sick all of the time and will not go out unless she has to and this has in turn affected her family and social life.  

9.	The offender was born in Ireland and has previous convictions for offences committed there between 2002 and 2014.  These include convictions for possession of a flick knife in 2007, possession of an article with intent to cause injury in 2008, four convictions for threatening behaviour in 2007, 2008 and 2014, and two convictions for assault in 2009.  Some of these resulted in relatively short custodial sentences.

10.	He moved to the United Kingdom in 2016 and has four previous convictions for eight offences committed in this country between 21 February 2017 and 3 February 2018.  One of these convictions was for an offence of shoplifting in February 2018 at the Avon & Somerset Magistrates' Court.  On 7 March 2017, the offender had been sentenced to a community order with a rehabilitation activity requirement for a non‑related matter, albeit alcohol related.  It is not clear whether he was subject to the community order when the present offence was committed.

11.	However, when the offender committed the present offence of robbery he was on bail for possessing a bladed article, a lock knife found on his person. 

12.	On 10 February 2018, he was produced before the Somerset Magistrates' Court and the case was sent to Taunton Crown Court.  He was remanded in custody.
13.	On 16 March, at the plea and trial preparation hearing, he indicated a plea of guilty to robbery.  A formal plea was not entered as legal aid was not in place at that point.  The judge invited the prosecution to consider whether a guilty plea on a full facts basis to the count of robbery would be acceptable, and thus that it would not be in the public interest to proceed with the outstanding count on the indictment of having an article with a blade or point and another indictment alleging possession of a bladed article.  The prosecution subsequently confirmed that this was acceptable.

14.	On 6 April, the offender pleaded guilty to robbery and in the light of the guilty plea the prosecution did not proceed with a count of possession of a bladed article on the same indictment nor the earlier indictment containing the count of possession of a bladed article.  A pre‑sentence report was ordered and sentence was adjourned until 15 May.  

15.	The case was listed on 15 May for sentence.  The facts of the case were opened and the judge was referred to the definitive sentencing guidelines for less sophisticated commercial robbery.  A pre‑sentence report was prepared for the hearing.  That said that the offender said he had no memory of the robbery as he was under the influence of heroin, crack cocaine and alcohol at the time.  He described being on a downward spiral following a recent suicide attempt by his mother, and having lapsed into alcohol and illicit substances in an effort to mask his emotions.  

16.	He had engaged well with the substance misuse service while on remand.  He suffered from depression and had stopped taking his medication during the relapse at the time of the offence.  He had engaged well with the mental health team in custody and had been motivated by financial gain to fund his alcohol and drug habit.  He expressed disgust at his behaviour and expressed what appeared to be genuine remorse for his actions.  He accepted that the robbery demonstrated a clear escalation in seriousness given the nature of the offence and the involvement of a weapon. There was a reasonable likelihood of reoffending in the view of the maker of the pre‑sentence report within the next 1 or 2 years.  His previous convictions demonstrated that reckless and impulsive behaviour was not unusual for him and the current matter represented a clear escalation in seriousness. Given his current engagement with mental health services, substance misuse services and abstinence from illicit substances and alcohol, the risk was considered to be at a medium level.  

17.	His response to previous probation supervision had been satisfactory.  While he had complied with basic attendance requirements, his previous offender manager suggested his commitment to change was inconsistent and he would often take the easy option rather than sustain engagement with support services.  The probation officer suggested that if the court were of the view that a custodial sentence could be suspended, a suspended sentence with a rehabilitation activity requirement of up to 40 days and drug rehabilitation requirement would be an option.  
18.	Several letters and certificates were placed before the judge in support of the offender's plea and mitigation.  From the transcript it is clear that the letters were written by prison officers, the mental health team and the offender.  There were also certificates demonstrating the completion of various courses.  This court too has seen those letters and certificates.  The judge said:

I have read the pre‑sentence report and most impressively the reports from the prison officers, all of whom speak extraordinarily highly of you ... I do not think that I have ever had a case before me where there has been such a positive indication from prison officers in the past.

19.	The judge sentenced the offender on the following basis by reference to the Sentencing Council definitive guidelines on robbery.  First, the production of a bladed article to threaten violence placed the offence in the high culpability category, category A. Second, the harm suffered by Ms Shepherd placed it in category 2.  There were the aggravating circumstances of an attempt to conceal identity and an attempt to dispose of the meat cleaver.  There was mitigation in his drug and alcohol addiction and his expressions of remorse.  The offender informed the judge that he was disgusted with his past and how he had behaved.  There was also credit for the guilty plea.

20.	Applying the robbery guidelines for street and less sophisticated commercial robbery, the judge decided that the case fell within category 2A.  A case failing within category 2A had a starting point of 5 years' imprisonment and a range of 4 to 8 years.  The judge specified a starting point of 5 years.  During the discussion as to whether the offender entered a guilty plea at earliest opportunity, the offender informed the judge that he had offered to plead guilty straight away but the solicitor present at the Magistrates' Court told him to wait and the judge seemed to have accepted this.  The judge reduced the sentence to reflect full credit for a plea of guilty, thereby applying a downward adjustment to three and a half years' imprisonment.  He rejected a suspended sentence order on the basis that the available sentencing powers should be greater than 2 years should the offender fail to comply.  After reading the prison references, the judge said he could take an exceptional course.  He then passed the sentence to which we have referred: the drug rehabilitation order with monthly reviews reserved to the judge.  The judge stated that if the sentence were breached, the offender would be sentenced to a term of at least three and a half years' imprisonment.

21.	For the Attorney General, Ms Pattison submits that the judge was correct to place the offending in category 2A of the robbery guidelines: the culpability was high, a meat cleaver was used to threaten violence, category A, and there was more than minimal psychological harm to Ms Shepherd, category 2.  That indicated a starting point of 5 years and a range of 4 to 8 years, as the judge had acknowledged.

22.	However, there were in addition a number of aggravating features: the offender's previous convictions; the fact that the offence was committed while on bail; the attempt to conceal his identity with the use of a hood, no doubt because he had been banned from the premises; the commission of the offence, on the offender's admission, while under the influence of drugs and alcohol.  Ms Pattison acknowledges the mitigating factors: the personal mitigation of drug addiction and depression; clearly expressed remorse; an expressed determination to address addiction and offending behaviour; and his guilty plea.  

23.	She acknowledges by reference to the Sentencing Council guidelines on the imposition of community and custodial sentences that the fact that the case passes the custody threshold does not mean that a custodial sentence should be deemed inevitable if a custodial sentence should not be imposed where a community order could provide sufficient restriction on an offender's liberty by way of punishment, while addressing rehabilitation and the prevention of future crime.  

24.	In summary, she submits that while the judge was correct to categorise the offence as falling within category 2A, the aggravating features, and in particular the offender's previous convictions and the commission of the offence while of bail, required an uplift from the starting point of 5 years.

25.	For the offender, Mr Ahuja in what were well‑focused and argued submissions submitted that the judge was correct to place the offending in category 2A of the guidelines with a starting point of 5 years.  He points out that the cleaver was held on the counter and the victim did not succumb to implicit threats and, when she did not do so, he simply walked out.  

26.	However, he submits that the judge, having considered all the relevant matters carefully, was justified in passing the sentence he did.  The offender had already spent the equivalent of a 7‑month sentence in custody while on remand.  He had made considerable progress while in prison, both in relation to his offending and substance misuse, as was clear from the prison reports.  This showed he had done good work in prison.  He had engaged with those providing assistance to those with drug addiction.  

27.	We should note, however, that he repeatedly failed a drug test for cocaine in June and we were informed frankly by Mr Ahuja in the course of his submissions that he had failed drug tests in July.  Apparently he blamed people he associated with while he had been homeless after his release from prison.  Mr Ahuja says that there are ‘positives’ in these reports relating to appointments with a GP, the mental health team and those who might assist him with accommodation.

28.	Mr Ahuja submits that the judge had seen and was entitled to take into account the offender's expression of remorse at the sentencing hearing and that these, as he put it, bordered on ‘exceptional circumstances’.  He submits that the sentence passed, involving drug testing and monthly reviews and a 40‑day rehabilitation activity requirement as well as the other requirements and activities, was an onerous sentence for a drug user and he would be rendered liable to a substantial term of imprisonment ‑ three and a half years ‑ if he fell to be resentenced.  He was, as Mr Ahuja put it, on a tight leash.
  
29.	He too referred to the guidelines on the imposition of community and custodial sentences and in particular to a passage on page 7 under the heading "Is it unavoidable that a sentence of imprisonment be imposed?":

Passing the custody threshold does not mean that a custodial sentence should be deemed inevitable.  Custody should not be imposed where a community order could provide sufficient restriction on an offender's liberty (by way of punishment) while addressing the rehabilitation of the offender to prevent future crime.

30.	He submits finally that the sentence was lenient, but not unduly lenient and that even if it were regarded by this court as unduly lenient, this court should not interfere with this sentence so as to increase it.  

31.	We have considered these submissions.  The judge rightly recognised that this was a category 2A offence and that the offending did not fall on the cusp of a custodial and non‑custodial sentence.  He also recognised that he was taking an exceptional course.  Nothing we say should be seen as undermining the powers of a Crown Court to adopt an exceptional course in exceptional cases.  The difficulty with the judge's sentencing decision in the present case was that this was a man who had relevant previous convictions and was on bail for possession of a bladed article. 

32.	In our view, a term of the order of 6 years should have been the starting point, with the aggravating and mitigating factors, (apart from the plea), balancing each other.  We would normally approach the present application on the basis that with full credit for the plea the sentence should have been a term of 4 years.  Indeed, we think it should have been.  However, we bear in mind that the judge had indicated a term of three and a half years and the fact that the offender has been subject to the sentence that was passed since the date it was passed.  

33.	In our view, the community sentence imposed was unduly lenient.  Accordingly, we quash the community sentence and impose in its place a term of three and a half years, for which the offender will receive credit for time on remand.  The restraining order will remain in effect.  

34.	We grant leave and make the adjustment of the sentence in those terms.  There will also be a victim surcharge order in the sum of £85.