England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2 Thursday, 27th January 2005

1. Lord Justice Auld: On 1st July 2004, before Her Honour Judge Smith in the Crown Court at Reading, the appellant, then a 23 year old heroin and crack cocaine addict, pleaded guilty to an offence of robbery and an associated offence of obtaining property by deception, namely the use of one of the credit cards taken in the robbery. The judge sentenced her to a total period of four years' imprisonment: four years for the offence of robbery, and one year for obtaining property by deception, the sentences to be served concurrently. In imposing that sentence the judge also took into account four offences of theft and four of obtaining property by deception.
2. The appellant appeals against sentence by leave of the single judge.
3. The circumstances of the robbery, and its associated offence of obtaining by deception, were as follows. About quarter past 10 at night on 24th June 2003 a woman was walking home on her own from work. As she walked along a sliproad, she saw a man keeping pace with her to her left and the appellant to her right. As she passed them the appellant grabbed hold of the woman's handbag, which was over her left shoulder. The woman grabbed it back. As she did so the appellant fell to the ground. She quickly got up however, and threatened to kill the woman, screaming that she had a knife. With those threats she was able to snatch the handbag again and make off with it. The man also ran off. The bag contained a mobile phone, a purse with some £250 in cash, a bank card and some store cards.
4. The appellant did not take long to take advantage of the bank card. At 1.00 a.m. the next morning she went to a supermarket and used the card to purchase over £40 worth of goods, the subject of the offence of obtaining by deception.
5. About three weeks later the appellant was arrested. When the police asked her about these matters in interview, she denied any involvement. When asked to stand on an identification parade, she refused to do so. The police bailed her pending enquiries. They made a video compilation as a substitute for an identification parade, and the victim identified on that video compilation the appellant as her robber.
6. The offences that the appellant asked to have taken into consideration, which the judge did, were offences of theft from a person, theft by shoplifting, and obtainings by deception.
7. The appellant is now 24. She was 23 at the time of sentence. She has a terrible record in the sense of a great number of comparatively trivial, but troublesome, offences of dishonesty. Between 1995 and 2003 she had been convicted on no less than 34 occasions of 67 offences, of which 45 were of theft and kindred offences. To date she has been sentenced to supervision orders, young offender institution orders, probation, imprisonment and conditional discharges. Despite these varied disposals, none seems to have done any good at all. The appellant's response to previous attempts at supervision has been hopeless. In 1997 and 1999 she breached probation orders. Of the custodial disposals, she had been sent to custody about nine times and, following her release, she has been subject to licence supervision; and on each occasion she has breached the licence. The court has been forced to deal with each of those breaches in the main by imposing further periods of custody.
8. The judge below had the benefit of a careful and comprehensive pre-sentence report. It set out fully the attempts made to assist this young woman and her lack of motivation to respond. The writer took the view that, given her history and the nature of these offences, she a woman who is, not only a persistent offender, but also one whose level of offending is escalating. It is not surprising then that the writer took the view that the likelihood of re-offending was high and that the risk of harm to the public was also high. Further, given the various breaches of previous non-custodial orders and attempts to assist the appellant, she considered that there was no point for the court considering a community disposal of any sort.
9. The judge, in his sentencing remarks was clearly driven to the conclusion that custody was inevitable. He had regard both to the nature of the offence and also to the appellant's record. He aptly described the offence in this way:

"... together with a male person, [you] approached [the victim] at night while she was walking alone going home from work. You grabbed her bag and screamed at her that you would kill her and you had a knife. This was doubtlessly a terrifying incident for her. This matter is so serious that only a substantial sentence of imprisonment is appropriate.

You were later seen to be using one of her credit cards ... to buy cosmetics and other products."

In addition, the judge referred to the eight other matters that the appellant had asked him to take into account.

10. He expressly referred to fact that she was still young and also that she was committing crime in order to fund her addiction to drugs, but also to the fact, as the writer of the pre-sentence report had indicated, that the level of her crime was escalating.
11. Miss Bates, who appears for the appellant today, in very helpful, and succinct submissions, has said all that could possibly be said to challenge the length of the sentence imposed of four years for these various matters. She referred the Court to the guidance given in Attorney General's Reference Nos 4 and 7 of 2002 (R v Lobban and Sawyers) [2002] 2 Cr App R(S) 345, in which Lord Woolf CJ, giving the judgment of the Court, indicated that, in many offences of this sort, street robbery, the appropriate sentencing bracket would be between about 18 months and three years. However, Lord Woolf did not confine the bracket to such an extent in every case of street robbery. He allowed, as one would expect, an elasticity where there are other aggravating circumstances, both relating to the offence and to the offender's history.
12. He said this at paragraphs 5 to 7 of the judgment of Court:

"In his submission on behalf of the Attorney General, Mr Pownall said that the bracket of sentencing which the authorities reveal for offenders of the sort we have been describing is 18 months to five years. We will look shortly at some of the authorities to which we were referred. We agree with what Mr Pownall said, subject to this. If the offences are committed by an offender who has a number of previous convictions and if there is a substantial degree of violence, or if there is a particularly large number of offences committed, the five year upper limit may not be appropriate.

Mr Pownall also indicated that the authorities suggest that the upper limit is three years where no weapon is used. Again, we agree, subject to the qualifications which we have already expressed in relation to the five year figure.

A factor which, in our judgment, is of importance is whether a team of offenders is involved. The fact that there are a number of offenders will make the offence more intimidating."

13. So the court is left with, given the circumstances here, with a rather broader bracket than Miss Bates suggested. She acknowledged that in her submissions as she developed them.
14. Miss Bates urged upon the Court, with the appropriate guidance in mind, that the robbery was one without a weapon, there was no physical injury, and was not carried out as part of a gang. Of course, in each of those respects, shortly stated, that is so. But although there was no weapon used, there was a terrifying threat to use one and the victim was not to know whether the appellant had a weapon and whether, as she screamed, "I will kill you", she would pull out a weapon and make good her threat. There was no physical injury caused, but great fear of it as there would be to anyone late at night alone faced with somebody threatening to use a knife and an apparent accomplice in attendance. As to not being part of a gang, that, of course, is true, but the small counterpoint to that is that this appellant was not, so far as the victim was concerned at any rate, seemingly acting on her own.
15. Miss Bates submitted that this is an unhappy case. The appellant has had a difficult upbringing. She is a heroin addict. She is at the mercy of that affliction. Notwithstanding that, Miss Bates invited the Court to take account the fact that the appellant pleaded guilty at the earliest opportunity. Again, not quite. As we have said, she denied, in interview having been involved. She refused to attend an identification parade, and it was only when confronted with the results of the identification of her by the victim on the video compilation that she decided to own up.

Miss Bates rightly referred to her comparative youth and the fact that, although she has many convictions in her past, there is none for offences of robbery or violence. Given that picture, Miss Bates submitted that the overall sentence here of four years is manifestly excessive - too much for this young woman with great problems. As part of that submission Miss Bates suggested, in line with her initial refferal to the appropriate bracket, that, on a plea of guilty, the judge's starting point must have been too high.

16. The Court cannot help but feel a sense of hopelessness about this case, hopelessness as to its inability to achieve what so many others have tried and failedto achieve part of the sentencing process. As we have said, all attempts to encourage the appellant away from her chaotic life, drug addiction and persistent crime have failed. It is clear that there is little or no prospect for a better response in the future, certainly in the form of the normal responsibilities that one would expect from someone in the community with a high degree of supervision. Now, with this offence of robbery [and it was a frightening one] and its associated offence of use of the victim's stolen credit card, there is, as the writer of the pre-sentence report and the judge put it, an escalation in the appellant's desperate need to feed her drug habit.
17. The Court is, thus, faced with a high likelihood of re-offending and a high risk of harm to the public. If the Court were now to consider a considerablt sentence, or even the possibility of a community sentence, which even the writer of the pre-sentence report rejected, it would achieve nothing.
18. We do not agree that, in the circumstances of this case, it follows from Lord Woolf's words in Lobban and Sawyers that the sentencing bracket is confined to 18 months to three years. In our view, on a conviction, the bracket could extend, from Lord Woolf's judgment in that case, up to five years or more. Although the appellant is charged on her own, part of the menace to the victim was, as we have said, the presence of a man. She may not have had a weapon on her, but she pretended to have a knife, and threatened in convincing terms to use it. All that has to be put against the backcloth of many previous offences of which this is a notch in escalation. It seems to us that her only chance of treatment is in a controlled custodial environment and one where she is present sufficiently long to enable the treatment available to do her some good, if we can put it in this way, whether she likes it or not.
19. In the circumstances, we take the view that the sentence of four years' imprisonment overall was amply justified in the circumstances of this case and in accordance with the guidance given by the Court in Lobban and Sawyers. We consider that it is the best disposal that could be offered to this appellant at this stage. It is just about the only one that may do her any chance of making good. Accordingly, we dismiss the appeal.