England and Wales Court of Appeal (Criminal Division) Decisions

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Cite as: [2005] EWCA Crim 280

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		Neutral Citation Number: [2005] EWCA Crim 280
		No: 200406844/A1

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
Strand
London, WC2
Thursday, 3rd February 2005

B e f o r e :

THE VICE PRESIDENT
(LORD JUSTICE ROSE)
LADY JUSTICE SMITH
MR JUSTICE OWEN
____________________

	REFERENCE BY THE ATTORNEY GENERAL UNDER
	S.36 CRIMINAL JUSTICE ACT 1988
	ATTORNEY-GENERAL's REFERENCE NOS 144 & 145 OF 2004
	(GEORGE JOHNSTON & JASON MCSHEFFERTY)

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____________________

MR S WHITEHOUSE appeared on behalf of the ATTORNEY GENERAL
MR M ELLIS appeared on behalf of the OFFENDER JOHNSTON
MR S EVANS appeared on behalf of the OFFENDER MCSHEFFERTY
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HTML VERSION OF JUDGMENT
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THE VICE PRESIDENT: The Attorney-General seeks the leave of the Court, under section 36 of the Criminal Justice Act 1988, to refer sentences said to be unduly lenient. We grant leave.

The offender, McShefferty, was born in August 1977 and is now 27. The offender, Johnston, was born in August 1995 and is now 19. They both pleaded guilty on 18th June 2004, at Northampton Crown Court, to two offences of robbery. On 4th November 2004, they were sentenced there by Miss Recorder Gargan to 30 months' imprisonment in relation to McShefferty, on each count of robbery concurrently, and in the case of Johnston, to 30 months custody in a young offender institution on each count concurrently. But, in addition so far as John was concerned, he was ordered to serve a sentence of 15 months' imprisonment in respect of five other offences in relation to which he had been committed to the Crown Court for sentence. They were offences of burglary, common assault, taking a vehicle without consent and theft. He asked for 66 other offences, which he had admitted, to be taken into consideration. He had previously been the subject of a community punishment and rehabilitation order, in relation to a further offence of theft.

So far as the first count in the indictment is concerned, and that is the count to which the present application relates, the two offenders tricked their way into the house of their female victim and robbed her of her car keys, purse and house keys. In doing so, they claimed they had a gun. They drove the victim's car away and used it in connection with the commission of the offence giving rise to the second count in the indictment, which was the robbery of a victim of his cash machine card as he sat in his car, claiming at the time they had a knife. No present application relates to that second offence.

In a little more detail, the first robbery took place at about 7.45 in the morning of Sunday 25th April 2004. Mrs Douglas, whose age is not known, but it is known that her husband was above retirement age, was watching television in the lounge of her home. She saw Johnston walk past the window and she went to the front door to see what he was doing. He was at the door. The offender, McShefferty, was some three or four feet away, and there was a third person standing by the gate. Johnston told Mrs Douglas that he was looking for his friends, whom he claimed were in her back garden and he said his ball was in her garden. She agreed to go and find the ball and went inside the house, closing the door behind her but not locking it. The two offenders came into the house and pushed her into the lounge. McShefferty put his hand over her mouth and said: "Don't scream." Johnston said they had a gun and, to add verisimilitude, he placed his hand in his trouser pocket. Mrs Douglas shouted to her husband, who was in the bathroom, to stay where he was. Johnston repeated that he had a gun.

McShefferty rummaged through Mrs Douglas' bag and took out her purse and credit cards and Johnston asked her for her PIN number. She gave them a false number. The two of them fled in her car, taking, as we have said, her house keys, car keys and purse, and saying, as they went, that they knew where she lived and they would be back.

In interview, McShefferty admitted both the offences and expressed remorse. He denied having threatened, as Mrs Douglas claimed, to kill her. He denied that the offences were planned. Johnston, in his interviews, made no comment. Both offenders pleaded guilty at the plea and directions hearing on 18th June 2004. Both had indicated guilty pleas at the preliminary hearing and, so far as McShefferty is concerned, he had indicated a plea of guilty even before that.

At the time of the commission of the offence, Johnston was on bail in respect of other matters. He had been sentenced to a 2 year community rehabilitation order and 100 hours' community punishment order, to which, in summary, we earlier referred, but that order had been made only two days before the commission of these offences of robbery.

On behalf of the Attorney-General, Miss Whitehouse draws attention to what she submits, rightly, are a number of aggravating features. First, the victim was in her home. Secondly, she was a vulnerable woman. Thirdly the offenders claimed they had a gun. Fourthly, Johnston was on bail at the time. Fifthly, the value of the goods stolen, particularly the motorcar, was high.

Miss Whitehouse draws attention to the mitigation to be found in McShefferty's admissions in interview and his expressions of remorse, at that stage, and in the pleas of guilty entered by both of the offenders at an early stage. Furthermore, so far as Johnston is concerned, he, as we have said, was only 18 years of age at the time of the offence.

Miss Whitehouse drew attention to two authorities, In Attorney-General's Reference No 48 of 2000 [2001] 1 Cr App R(S) 423, in the course of giving the judgment of the Court, Roch LJ said, at page 427, that the authorities indicated that, where there was a single offence of this kind, and the offender has pleaded guilty, the appropriate sentencing range is between 4 and 7 years' imprisonment. Miss Whitehouse, secondly, drew attention to Attorney-General's Reference No 1 of 1999 [1999] 2 Cr App R(S) 398. In the course of giving the judgment in that case, at page 399, Beldam LJ emphasised what the courts have said on many occasions, that attacks on elderly people, in their own home, deserve severe punishment because of the vulnerability and weakness of such victims and their feeling of isolation from help.

On behalf of the offender, Johnston, Mr Ellis concedes that the sentence of two-and-a-half years was a merciful one, but he draws attention to the observations made by the learned Recorder in passing sentence, which not only included a reference to Johnston as "a crime wave", but also referred to the possibility of a 5 year sentence in his case. Mr Ellis submits that, there is personal mitigation so far as Johnston is concerned. The preparer of the report upon him has known the family for many years and the report indicates that it is a family in which the children appear to be responsible for their parents, rather than vice versa. Mr Ellis submits that the learned Recorder was entitled, bearing in mind, in particular, the 15 month sentence imposed in relation the other offences, to pass a sentence of two-and-a-half years in relation to this robbery.

It is to be pointed out that, so far as Johnston is concerned, he has a very considerable record of offences of dishonesty. They include, in addition, an offence of assault occasioning actual bodily harm, in 2001, when a detention and training order was made for 4 months and an offence of robbery, in July 2002, when a detention and training order was made for 2 years. Furthermore, a detention and training order for 8 months concurrently with that sentence was also imposed for having a sharply pointed article in a public place. Mr Ellis' essential submission is that, although the sentence on Johnston was a lenient one, it was not unduly lenient.

A similar submission is made by Mr Evans, on behalf of the offender, McShefferty. He stresses the remorse shown by this offender in the course of his interviews with the police, as well as his very early plea of guilty. He, like the offender, Johnston, had become addicted to heroin, by reason, in part at least, of the violence within his domestic environment. Mr Evans stresses that the offence was comparatively unsophisticated and not planned. He draws attention to references, which come not only from McShefferty's mother, but also from the prison where he is serving his sentence, which speak of him making good use of his time. His date of release, at present, is August 2005. Mr Evans relies also on the principle of double jeopardy, that is to say, that the offender is being sentenced a second time by this Court.

We take all of these matters into account. In our judgment, a sentence of two-and-a-half years, in relation to an offence of robbery, committed in the circumstances which we have described, was quite plainly unduly lenient. We would have expected, in the court below, a sentence of 5 years' imprisonment, or in relation to Johnston, 5 years' detention in a young offender institution. Taking into account double jeopardy, in substitution for the two-and-a-half year terms imposed by the learned Recorder, we impose in relation to each offender a term of 4 years: that will be imprisonment so far as McShefferty is concerned, and detention in a young offender institution so far as Johnston is concerned. Bearing in mind the length of that sentence, we order that the 15 month sentence, imposed on Johnston in relation to the other matters, will run not consecutively but concurrently with that 4 year term.