England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		1 June 2012

LADY JUSTICE HALLETT: I shall ask Mr Justice Calvert-Smith to give the judgment of the court.

MR JUSTICE CALVERT-SMITH:

1. On 6 March 2012 at Liverpool Crown Court the applicant pleaded guilty to three offences of robbery and one of attempted robbery. On 30 April 2012 he was sentenced by His Honour Judge Warnock as follows: on counts 1, 2 and 3 (robbery), a ten month Detention and Training Order on each count concurrent. No separate penalty was imposed for the attempted robbery. The total sentence was a ten month Detention and Training Order. The application for leave to appeal against sentence has been referred to the full court by the Registrar. We grant leave.
2. There were two co-accused who pleaded guilty at the same time as the appellant, one of whom, W, pleaded guilty to a further offence committed on a different occasion. The two co-accused, who had pleaded guilty to the further offence as well as those on this indictment, were sentenced to Detention and Training Orders of 24 months and 16 months respectively
3. The facts of the offences were that at about 5.45pm on Saturday 8 October 2011 a group of five boys, aged 14 or 15, were on their way to a concert in the O2 Arena in Liverpool. One of them saw the appellant and the two co-accused walking behind them and he became nervous when he saw them pull their hoods over their heads to cover their faces. The group continued and tried not to look at the three youths following them. The robberies began, as they so often do, with one of the co-accused shouting to ask whether they had the time. This caused the five boys to turn and face the three co-accused. W demanded their mobile phones. When the victim in count 1 said that he did not have one, W hit him in his face with his elbow and took his iPhone from his pocket. The victim in count 2 was worried that he would be assaulted and, understandably, handed over his Blackberry phone; likewise, the victim in count 3. W produced a screwdriver from the sleeve of his jacket, pointed it at victim number 4 (the victim of the attempt) and asked for his phone. Victim number 4 refused. The appellant and his two co-accused ran off.
4. The police arrived very quickly and the three co-accused were stopped nearby. W was in possession of two of the telephones. He confessed that he had just taken them off a group of lads. Nothing was found on the other two co-accused. The third phone turned up in the back of the police vehicle. According to the police it could not have come from W.
5. The appellant's plea of guilty was tendered on the basis that he had aided and abetted the other two by his presence, rather than his having taken any active part in the robbery, either verbally or physically.
6. The appellant is still only 14 years old as he was at the time of the offences. He has never been in trouble before, although he has two reprimands, first for the theft of a bicycle in June 2011 and the second for the possession of an imitation firearm in public on 27 July 2011. That second reprimand was the subject of questions from the sentencing judge. Prosecution counsel on that occasion was unable to inform the court how that offence had been discovered and in what circumstances it had been committed. Mr Carville, who represents the appellant today has not been able to assist us either.
7. The pre-sentence report describes the appellant's genuine remorse and reiterates the appellant's case that he had not taken part directly in the robbery, but that he was guilty because he had effectively supported his co-defendants by his presence and that his behaviour had been unacceptable.
8. His behaviour generally, witness the two reprimands, had deteriorated after the separation of his parents. He had come to terms with that separation and now had daily contact with his father. The author of the report believed that the appellant had been influenced by more entrenched offenders. It is right to say that both the other two offenders had worse records than he did. It was assessed that there was a low risk of reconviction and a low risk of harm to the public. He was frightened at the idea of being away from his family and presented as a vulnerable young man. The author suggested that although a Detention and Training Order would be commensurate with the seriousness of the offence, there was some concern about his vulnerability and level of maturity. The court was therefore asked to consider a twelve month Youth Rehabilitation Order.
9. When the matter came before the court it was assumed by all parties that a sentence of detention and training was open to the court. However, such a sentence may only be passed on an offender aged 14 if he can be described as a "persistent offender". Offenders aged 14 and below who have been made the subject of Detention and Training Orders have been before this court on a number of occasions. There are a number of decisions in which the question of what may or may not amount to a "persistent offender" have been discussed. In R v G(TT) [2004] EWCA Crim 3086 the appellant had pleaded guilty to a number of offences -- two of possessing a prohibited firearm, two of possessing ammunition without a certificate and one of possession of a Class C (as it then was) drug, cannabis, with intent to supply. The appellant was aged 14 and a sentence of detention and training was imposed. The appeal was brought on the basis that the qualification required for "persistent offender" had not been met. In giving the judgment of the court McCombe J said this:

"10. Thus, before a sentence of the type passed by the judge could properly be so passed, the court had to be satisfied that the offender was properly regarded as a persistent offender. Not surprisingly, this issue has been addressed in previous cases. It has been held, for example, that formal cautions can be considered along with convictions in deciding whether or not an offender is persistent in his offending: see D [2002] 1 Cr App R(S) 59. Indeed, it is not necessary that there should be previous convictions or cautions at all. The provisions can apply in the case of a previously unconvicted offender who embarks on a brief, but nevertheless persistent, spree of offending: Smith [2001] 1 Cr App R(S) 62. However, as has been indicated in those cases, and one to which we will refer in a moment, the term 'persistent offender' is an ordinary term of the English language and falls to be applied in its clearly understood meaning. In addition to the cases already mentioned, we refer to D (CA 23 October 2000, unreported), a decision of the constitution of this court presided over by Mantell LJ, in which David Clarke J (then the Recorder of Liverpool) gave the judgment. .... The appellant in that case had one caution and one conviction for handling stolen goods. In giving the judgment of the court David Clarke J said:

'13. The question for this court, therefore, is whether this appellant falls on the same side of the line as in the previous cases. At the age of just 14 he had one caution and one conviction for handling stolen goods. The present offence of affray was of a quite different character and the first offence of that type -- different also from the further offence concerning a motor cycle which he had gone on to commit whilst on bail. In the judgment of this court, whilst the term "persistent offender" is a wide one, allowing for some latitude of interpretation of the facts of particular cases, the learned judge stretched the language too far on this occasions and thus the foundation has not, in our judgment, been laid for the imposition of a Detention and Training Order.'

In our view, having given careful consideration to this matter, this case falls on the same side of the line as did the facts in D to which we have just referred. The instant offences were indeed very serious and ones for which a custodial sentence would instantly be expected to be passed, even in a case of a young offender. However, in our view this appellant did not satisfy the statutory criterion, namely that of being a persistent offender."

The court came to the conclusion in that case that the order had to be quashed.

10. The offences in the instant case are very serious, just as were the offences in the case to which we have just referred. They would normally attract a custodial sentence. The alternative, if custody was being considered, would have been a sentence under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. That possibility was considered by His Honour Judge Warnock in connection with the principal offender, W, as to whom he said:

"[W], you were deeply involved in the first street robbery where a screwdriver was brandished. Shortly thereafter you were involved in another street robbery when you brandished a rusty knife. I have thought long and hard whether to invoke section 91 in this case, but I have eventually come to the conclusion that your pleas and age just preclude such a course. You should understand that the sentence I am going to pass fully takes into account any mitigation that has been available to you."

The robbery with a rusty knife to which the judge referred was a robbery committed on another occasion. As we have already said, W pleaded guilty to another robbery on a different date to the three robberies and the one attempt to which the appellant had pleaded guilty. Accordingly, the judge was right not to have considered section 91 in the case of the appellant.

11. Having considered the authorities, we have come to the same conclusion as the court in G(TT) and D, that the two reprimands and the three robberies committed on a single occasion within a minute or so of each other cannot be characterised for the reasons given in the earlier judgments as "persistent offending". The two previous offences are quite different, albeit we know very little about the facts of the possession of the imitation firearm.
12. Accordingly, the court is minded to quash the ten month Detention and Training Order and to impose a different sentence. There is an extremely encouraging report from Red Bank Community Home. where the appellant has been detained now for just over one month, which suggests that he is making excellent progress. In some ways it is a shame that that progress cannot be continued within its confines because should he have stayed there he would have emerged a better person for it. However, because of our finding that the sentence should not have been passed, it will have to be quashed.
13. The pre-sentence report recommended a twelve month Youth Rehabilitation Order with three requirements: first, a twelve month supervision requirement; second, a 91 day Extended Activity Requirement of high intensity; and third, a three month curfew requirement to be electronically monitored from 7pm to 7am.
14. By section 1 of the Criminal Justice and Immigration Act 2009 a Youth Rehabilitation Order with intensive supervision and surveillance may only be made if in dealing with a person under 15 "at the time of conviction the court is of the opinion that the offender is a persistent offender". Accordingly, that requirement too is prohibited by the fact, as we have found, that the appellant is not a persistent offender.
15. We are extremely grateful to Mr Gardner for making enquiries. He has informed us that within a supervision requirement a significant number of the activities which would form part of the extended activity requirement would be part of that supervision. Accordingly, and having ascertained from Mr Carville that, should the appeal be allowed, the appellant, who has been spoken to in the very recent past, was content for the conditions as then suggested to be imposed, and will undoubtedly extend that consent to an order that is slightly less rigorous than that that was proposed, we feel able to quash the Detention and Training Order and to replace it with a twelve month Youth Rehabilitation Order with the requirements of twelve month supervision and a three month curfew to be electronically monitored from 7pm to 7am. We have in mind that the appellant has already spent one month in custody as a result of the original sentence. To that extent the appeal is allowed.

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