England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		26 April 2007

1. MR JUSTICE BENNETT: On 17th July 2006 at the Crown Court at Preston, the appellant pleaded guilty to one count of attempted robbery. On 27th October he was sentenced to detention in a young offender institution for public protection pursuant to section 226 of the Criminal Justice Act 2003, with a minimum term specified of two years. He appeals against sentence by leave of the single judge.
2. At 4.45 on the morning of Sunday 5th March 2006, Miss Karoonian was working as a cashier at a petrol station in Leyland. The appellant, who was a regular customer, entered the store and bought two scratchcards. Miss Karoonian found the appellant's behaviour and conversation at that point strange. He spoke about an incident that had occurred the previous evening in which there had been either a robbery or attempted robbery at that petrol station.
3. The appellant left the store but came back at about 6.20. He asked Miss Karoonian about the CCTV system at the store and the location of the cameras. He then walked behind the cash counter, produced a pen knife with a three inch blade and held the knife close to her stomach without actually touching her. He held the knife in such a way that it was not visible to the security cameras.
4. Miss Karoonian, who was in some fear, began to walk towards the secure office behind the counter. She told the appellant that there was another member of staff, but she was not sure whether he believed her. The appellant then asked Miss Karoonian where the safe was.
5. When the other member of staff came out of the secure area the appellant secreted his knife. When challenged the appellant told that member of staff that nothing had happened. He then left the store.
6. At 9.00 am the police went to his home. They found him in his bedroom and arrested him. A folding pen knife with a three inch blade was found underneath the mattress of the bed.
7. When he was interviewed by the police, the appellant accepted being at the petrol station. He said that on the first occasion he simply discussed the robbery the previous evening. On the occasion when he returned Miss Karoonian, he said, refused to sell him some scratchcards, he got angry and went behind the counter to remonstrate with her. He denied producing a knife.
8. The appellant accepted the knife the police had found did belong to him which he said he kept for his own protection. It was a coincidence that he had a knife with him when he went to the petrol station. He said he could not see how Miss Karoonian could have been aware of the knife, but later said she might have seen him throwing it from hand to hand when he was outside the petrol station. He accepted he had been a customer there for a number of years. When charged with attempted robbery he said: "I did not use a knife and I did not want money. I did go behind the till, but that was to get my own scratchcard and pay for it."
9. He is a man of 19 years of age. He committed this offence the day after his 18th birthday and he has no previous convictions.
10. The first pre-sentence report spoke about the appellant behaving bizarrely when he had been drinking alcohol and that he had tried to self-harm and indeed kill himself while under the influence of vodka. In its conclusion the author said that a custodial sentence was likely to be considered. The sentence of imprisonment would protect the public for a specified period.
11. When the matter came before the court it was thought that a further report should be obtained to deal with any element of dangerousness of this appellant and so a further report was produced in late October. In that report the author said that it was her assessment that the appellant presented a significant risk of serious harm and dangerousness from further specified offending. Having said that a custodial sentence would protect the public for a specified period, she went on to say:

"This assessment remains but, should the Court decide that an immediate custodial sentence is avoidable, he could be made the subject of a Suspended Sentence."

Furthermore, there was available before the sentencing judge a psychiatric report from a consultant psychiatrist. We have been given copies of that but it does not seem that that really advanced the matter very much.

12. When the judge came to sentence the appellant, she noted that he was 18 and of previous good character, but this offence was "very, very serious." It involved an attempted robbery at a garage at night involving a vulnerable lady cashier and at knife point. She concluded, which is a conclusion which is not challenged by Mr Thomas that the sentence had to be one of custody. The sentencing judge then went on to consider whether or not there should be a sentence of detention for public protection for an indefinite period and she concluded that there should be. She concluded her sentencing remarks by saying that if the court was to arrive at the minimum term that he had to serve, she took as a starting point a term of detention of six years, reduced that by two years to give four years as a result of the plea of guilty and then halved it to arrive at a minimum term of two years.
13. Mr Thomas in his helpful submissions today has sought to persuade us that this was not an appropriate case for detention for public protection. In his advice to this court, and in his submissions today, he said that the sentencing judge during his submission of mitigation told Mr Thomas that she felt her hands were tied by what the author of the pre-sentence report had said. Mr Thomas submitted that therefore that must have overly influenced her assessment of the dangerousness. But the fundamental point, as we see it, that Mr Thomas makes is that the author in her conclusions in her second report thought that an appropriate sentence would be one of suspended detention which of course would be quite inappropriate if this appellant was so dangerous as to pass the relevant test under section 225 of the Criminal Justice Act 2003. Mr Thomas reminded us that this appellant was only just over 18. He had drunk far too much when he committed the offence. He had drunk far too much vodka celebrating his 18th birthday. This was an appropriate case for a determinate sentence. There was not a significant risk of serious harm from this appellant. Thus the sentence that was imposed was manifestly excessive.
14. Mr Thomas also sought to persuade us that six years as the starting point in this particular case was too high. He submitted to us that a determinate sentence of four-and-a-half to five years would have been appropriate. Accordingly on a plea the sentence would have been one of three-and-a-half to four years' detention.
15. As we have said, we were told by Mr Thomas that the judge said during his submissions that the judge felt herself constrained by a finding of dangerousness in the pre-sentence report. We note that the judge's sentencing remarks do not contained any such observation. However, if during the hearing the judge did pass such a comment we would disagree with it. It is the judge's task to assess dangerousness based on the material before the court. A judge would obviously take into account any assessment by a probation officer, but in the end it is the judge's task to assess whether or not an offender is dangerous for the purposes of section 225.
16. This appellant has no previous convictions. The pre-sentence report and the psychiatric report do say that the appellant behaves bizarrely whilst under the influence of drink and he is liable to self-harm, as we have said.
17. We do not consider that this offence, committed by this appellant in the particular circumstances of the case, can lead to an assessment that the test in the 2003 Act of dangerousness has been met. The risk of harm has to be significant. Whilst it is rarely possible in such a case as this to rule out any risk of future harm, we do not think in the circumstances of this case that the risk is significant. Drink played a large part in the offence and the drink was taken in celebration of this appellant's 18th birthday.
18. Turning then to the question of a determinate sentence, whilst we have listened carefully to what Mr Thomas has said, we in fact do not see anything manifestly excessive in the judge's taking as the starting point a period of six years. Accordingly, we would quash the sentence and in its place substitute a sentence of four years' detention in a young offenders institution. To that extent and that extent only this appeal is allowed.