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Cite as: [2007] EWCA Crim 1031

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		Neutral Citation Number: [2007] EWCA Crim 1031
		No: 200701039/A7

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
Strand
London, WC2

Thursday, 19th April 2007

B e f o r e :

SIR IGOR JUDGE
(THE PRESIDENT OF THE QUEEN'S BENCH DIVISION)
MR JUSTICE GOLDRING
MRS JUSTICE SWIFT DBE
____________________

	REFERENCE BY THE ATTORNEY GENERAL UNDER
	S.36 CRIMINAL JUSTICE ACT 1988
	ATTORNEY-GENERAL's REFERENCE NO 10 OF 2007
	(MICHAEL JOHN WHITE)

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____________________

MR A JAFFERJEE appeared on behalf of the ATTORNEY GENERAL
MR J KIRKPATRICK (SOLICITOR ADVOCATE) appeared on behalf of the OFFENDER

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HTML VERSION OF JUDGMENT
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SIR IGOR JUDGE: This is a Reference, under section 36 of the Criminal Justice Act 1988, by Her Majesty's Solicitor-General of a sentence imposed on Michael John White, on 29th January 2007 at Peterborough Crown Court.

The offender was born in September 1985. He is 21 years old. He has had twice previously been cautioned for assault occasioning actual bodily harm, and shortly before the events to which we shall describe, he was convicted of assault occasioning actual bodily harm and affray and made subject to a non-custodial order.

On 4th December 2006 he pleaded guilty to one count of robbery, one count of assault occasioning actual bodily harm and also to a charge of driving with alcohol above the prescribed limit. He was sentenced as follows: for robbery, 10 months imprisonment; assault occasioning actual bodily harm, 2 months' imprisonment; driving with excess alcohol, 6 weeks' imprisonment, with a disqualification from holding or obtaining a licence for 1 year. All these sentences of imprisonment were ordered to run concurrently. The total sentence, therefore, was 10 months' imprisonment. An order was made for 63 days spent on remand should be allowed against the sentence period.

The facts can be taken relatively shortly. Three youngsters, all aged 17, had been out at a party at a recreation centre in Cambridgeshire. They left the party on foot at about 1 o'clock in the morning on Sunday 26th November 2006. Of three boys, one had had a good deal to drink. They were on their way home when they were interrupted by a telephone call from a friend. They decided to meet their friend at a nearby car park. They were acting perfectly harmlessly.

On their way to the car park the offender drove his car alongside them and then stopped. He had been drinking and his blood alcohol level was in excess of the appropriate limit. It was about 1.15 in the morning. The area was deserted. There was a passenger in his car, who gave him a warning to leave the youngsters alone on that very basis: "They are too young ".

The group of lads continued to walk ahead and the offender drove up in their vicinity again. This time, having stopped the car, he got out and confronted them on the pathway. In his hand he held what was described as a solid cylindrical-shaped object. That turned out to be a towing eye and he said aggressively: "If I don't get a fiver from you all, I'm going to use this on you." Two of the lads opened their wallets to show that they had no money. The third, James Gray, offered a set of keys, which was rejected. He then offered his mobile telephone. The passenger who was in the car, twice told the offender that he should not take the telephone, but he did so and put it into his trouser pocket. He then said to Mr Gray: "If you hadn't give me your telephone I would have head-butted you." Thereupon he headbutted him on his forehead any way. That blow caused the victim to lean forward and with that he was punched twice by the offender on the back of his head. He suffered some bruising. The offender then addressed all three: "If you breath a word of this to anyone you're dead." With that he drove away.

About an hour and a little later, shortly before 2.30 am, the offender was stopped the police. They believed that he was driving in excess of the speed limit. They were, of course, unaware of the earlier robbery and offence of violence. The offender failed the roadside breath test. He was taken the police station at Huntingdon and a sample showed him to be above the prescribed limit. The figure was 55 micrograms. Search of him revealed that he was in possession of the mobile telephone stolen from James Gray.

At about 3.30 the police became aware of the earlier incident. They appreciated that the description of the vehicle which they had been given matched the vehicle which the offender had been driving when he was arrested. He was thereupon arrested for robbery and he replied: "What robbery?" His car was searched. The towing eye was found in the driver's footwell. It had been removed from the ordinary tool kit of the vehicle which way was in the boot.

The offender was interviewed later that afternoon. It was a "no comment" interview.

The offender has previous cautions and convictions, which we have already described at the outset of this judgment. The significant feature of the conviction for assault occasioning actual bodily harm and affray was that the incident involved two men, one of them the offender, who gratuitously attacked two other members of the public, one of whom was knocked to the ground. For his involvement in that offence the offender was made subject to a 12-month community and supervision order. That was imposed 25th September, just about 2 months before the offence with which we are concerned.

The submission on behalf of the Solicitor-General is that the sentence was unduly lenient and that this Court should interfere with it. In particular, the level of sentence did not adequately reflect the definitive guideline on robbery issued by the Sentencing Guidance Council and, having failed to fall within the appropriate range as described by the Sentencing Guideline Council's Guidelines, the learned Recorder did not explain any particular reason why the appropriate sentence was not within that range.

The conviction occurred two months after the offender been treated by the court with a non-custodial sentence for an offence of public violence on the streets. He had been drinking and he was driving his car when in drink. He stopped more than once. He was warned and asked by his passenger to desist. He went on with what he was doing. He plainly stopped his car quite deliberately, in order to confront this group of lads who were, as we have indicated already, peacefully going about their business late at night. They were directly confronted by an aggressive man, carrying a frightening weapon, who put them in fear, and, having put them in fear and robbed one of them of the mobile telephone, then used violence towards him. It was not major violence, but it was, and it is easy to overlook this, an incident of fear, coupled with violence. Precisely whether the robbery occurred before the violence was actually used and the victim put in fear really does not seem to us to matter very much. We must take an overall look at the ordeal to which these three victims were subjected. All that done, he drove away a nasty parting threat.

It is true that the incident was not prolonged, in the sense that it went on for a long time, but, as the two cars stop demonstrate, it was sustained. It also true that the actual violence was not great, but the weapon used was used to terrify and violence was in fact used. It is also true, and to the offender's credit, that he pleaded guilty at the first opportunity. We also note, as the Recorder did, that he is still 21 years old and he had not previously been ordered to serve a custodial sentence. The sentence that he is now serving is his first experience of custody.

This case does not permit of any detailed analysis. In our judgment, the sentence imposed was unduly lenient. We give leave to the Solicitor-General to bring the Reference to the Court. We have allowed for the mitigation, which we have described, but however we approach the sentence, a totality of 10 months was unduly lenient and inadequate. In our judgment, the appropriate totality to address the overall criminality represented by these offences, even allowing for the early plea of guilty, is one of 18 months' imprisonment. Accordingly this Reference will succeed to that extent.