England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Tuesday, 20 March 2018

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LORD JUSTICE SIMON:

1. This is the Solicitor General's application to refer a deferred sentence passed at Grimsby Crown Court on 19 January 2018 under section 36 of the Criminal Justice Act 1988 as being unduly lenient. The sentence was passed on the offender Andrew Sawdon by his Honour Judge Bury in respect of a charge of robbery committed on 6 August 2017.
2. The offender, now aged 32, had pleaded guilty on 15 December and the sentencing was adjourned for the preparation of a Pre-sentence Report. A report was prepared but its utility was limited due to the fact that the offender had failed to attend for an interview at 9.30 am on 3 January 2018 and did not make contact to explain why.
3. At approximately 12.30 pm on Sunday, 6 August 2017 the offender walked into Saint Martin's Service Station on Scartho Road, Grimsby and selected a comb in cardboard packaging from a display. Mrs Krishnasamy, aged 30 and pregnant, was working behind the counter. About a minute after the offender had entered the store, a customer, Kevin Stanlard, aged 59, also entered and approached the counter. The offender approached Mr Stanlard from behind and put him in a headlock. With his free hand the offender held the packaged comb. Mrs Krishnasamy thought the offender had a knife and Mr Stanlard, who felt the comb as it was held to his neck, believed it was a blade. The offender said to Mrs Krishnasamy, "Give me the money or I will stab him. I will stab him, I will." Mrs Krishnasamy felt very scared and shocked, and froze. She saw that Mr Stanlard was scared. The offender appeared aggressive and agitated, and said to Mr Stanlard, "Don't have a heart attack, you old codger."
4. Mrs Krishnasamy used the store microphone system to summon her husband, the store manager, Mr Alargasamy, who was aged 42. He was outside on the forecourt at the time. He entered the store and went immediately behind the counter to join his wife. The offender then released his grip on Mr Stanlard and walked towards the till area, turning his attention to Mr Alargasamy. He said, "Give me the money or I will kill you." Mr Alargasamy feared for his own safety and that of his pregnant wife. Mr Stanlard now realised, some minutes after the offence had begun, that the offender held a comb and not a knife, and said to the offender, "It's a comb", to which the offender replied, "No, it's a knife and I will stab you with it." Mr Stanlard repeated, "It's a comb", to which the offender replied, "Yes, but I can still stab you with it." The offender punched Mr Alargasamy three or four times to the side of his head and kicked him. Mr Alargasamy told his wife to give the offender cash from the till and she did so, handing him £160. The offender kicked out at Mrs Krishnasamy without making contact. Once he had the money, the offender calmed down and was then ushered out of the shop by Mr Alargasamy.
5. He walked in front of a passing ambulance and attempted to throw himself onto the bonnet. He then approached a male member of the public aged 60 years old or so, and having asked him the time, punched him in the stomach in an unprovoked attack. Members of the public then detained the offender and pinned him to the ground until the police arrived. The offender was arrested at approximately 12.40 pm, and on arrest, said, "You're all Jewish bastards." "I'll stab them all", and chanted, "Allahu Akbar." £160 in cash was found on him. The comb, still in its packaging, was recovered nearby.
6. At approximately 9.00 pm on the same day the offender was released into the care of Harrison House, the local mental health unit, where his mental health was assessed by Dr Bodo of NAVIGO. He was found to have no acute mental illness and was discharged on 7 August without medication or a home treatment package. He tested negative for opiates and cocaine but positive for cannabis and Mephodrone (MCAT).
7. On Thursday, 24 August the offender attended Grimsby Police Station to be interviewed on a voluntary basis. He had an appropriate adult with him during the interview. He was frank and co-operative during the interview. He accepted what witnesses said he had done but denied that he had ever intended to hurt anybody. He said that he had smoked cannabis before entering the service station store, but unknown to him the cannabis had been laced with MCAT and he had never taken that before. He claimed that he did not really have full control over himself when he committed the offence but did accept that his actions were done in order to make the victims feel scared. He claimed that he had attempted to commit suicide while in Harrison House. He expressed remorse and offered to apologise to the victims and witnesses.
8. The victim impact statement showed that Mr Stanlard suffered no physical injury as a result of the incident. However, he was very frightened when he was being grabbed because he thought that the offender was going to seriously hurt him or members of the staff.
9. Mrs Krishnasamy expressed her upset by the incident, "I have been unable to continue my work as I fear being in the shop on my own... I feel scared about going back to work." She added that she genuinely feared that the offender would have killed her husband if she had not handed over cash. Mr Alargasamy was left with a small lump on the side of his head but he did not seek medical treatment. He feared for the safety of his wife and the customers.
10. The man aged over 60 whom the offender had punched in the street provided a statement saying that the offender "deserved a break", but the punch had caused him some pain and bruising.
11. The offender had no previous convictions. He had been cautioned for an offence of shoplifting in December 1998 and been made the subject of a reprimand for possessing cannabis in December 2001. There were reports available to the judge. First, NAVIGO, a local, not-for-profit enterprise that runs mental health services in north-east Lincolnshire assessed the offender on 6 and 7 August. The conclusions of the doctors were that he had full capacity to make decisions and did not present in any acute medical disorder. He was not psychotic or delusional, and he presented a low risk to himself.
12. In addition, a psychiatric report was commissioned by the defendant's solicitors from Dr Pablo Vandenabeele. This included the following relevant information and opinion: the offender was subject to childhood sexual abuse. He attended mainstream schools. He had difficulties with writing. He indulged in low level domestic violence with his current or ex-partner. He claimed he had engaged in episodes of self-harm in the past. He said he had abused cannabis from the age of 11, and appeared to hold paranoid views about the organisation of society and expressed conspiracy theories. However, this paranoia had no bearing on the commission of the offences, had no history of mental illness or previous diagnoses and was not currently suffering from mental illness.
13. As we have noted, the offender failed to attend the appointment with the probation officer to be assessed for the purposes of a pre-sentence report. The incomplete report included the following:

i. The offender presented a 5 to 10 per cent risk of reconviction within 12 to 24 months (low risk).

ii. He presented a medium risk of physical and emotional harm to members of the general public, and

iii. Although the probation officer considered that the likely sentence would be immediate custody, she offered to supervise the offender and proposed activity requirements.

14. The offender appeared on a summons before the justices sitting at the Humber Magistrates' Court, sitting at Grimsby and Cleethorpes Court House, on 14 November 2017. He gave no indication as to his likely plea and his legal representative told the court that owing to the offender's suspected mental health issues, he wished to explore whether or not the offender was fit to plead or stand trial. He was unconditionally bailed to appear at the Crown Court at Grimsby for a pre-trial preparation hearing on 15 December. On that date the offender, having been assessed as fit to plead and stand trial, pleaded guilty and no basis of plea was put forward. Sentencing was adjourned.
15. On 19 January the offender appeared before his Honour Judge Bury. The Pre-sentence Report had not been completed and the judge refused a defence application to adjourn so that a further appointment could be made for the offender to be assessed by the probation service.
16. The judge passed a deferred sentence for a period of 6 months and set out the following terms of deferment, which if complied with, would result in a non-custodial sentence in due course. First, to commit no further offences; second, to stop using cannabis completely; third, to save money to pay compensation, and fourth, to continue to address his mental health issues so that he would be able to do unpaid work.
17. In the course of the sentencing hearing and his sentencing remarks the judge made the following observations. First, it would not have been immediately apparent, if at all, to the offender that Mrs Krishnasamy was pregnant. Second, the unpleasant comments made by Jews and the use of the words "Allahu Akbar" on arrest were neither racially nor religiously motivated. Instead, they were, "the ramblings of a man who is under the influence of cannabis." The starting point for the sentence was of the order of 4 years' imprisonment.
18. The judge then went on to say this.

My first, and indeed second, thought about this was that you had to go immediately to prison, in spite of the fact that you have no record to speak of. But I've now watched the CCTV footage and it seems to me that the level of violence was not as high as I had anticipated it would be.

19. We should add that this court too has watched the CCTV footage.
20. The judge continued:

If I were to take the view that this was explained by your mental health at the time, then that affords you some significant mitigation. You've been seen by a psychiatrist. You have no mental illness, although you appear to have certain character traits which are concerning. You appear to hold conspiracy theories and are somewhat paranoid. Those traits are not at the moment seriousness enough to warrant you being regarded as mental disordered. Some of the things your mother has written in her letter suggest to me that you might -- and I say only 'might' because I am by no means a psychiatrist or psychologist -- you might have some illness in the autism spectrum. I know that you've been assessed for dyslexia.

This does not happen very often, I can assure you, Mr Sawdon, but I'm not in fact going to send you to prison today. What I'm going to do is defer sentence — I don't do that very often either — until 6 July. Six months' time, more or less. And what I want you to do in six months' time and every day during the six months, is to keep your employment save up some money, because I don't see why the victims of your offending should suffer, so I expect you to save up money to pay off the money that you were given... You can also pay some compensation for the upset you've caused. And I expect you to have completely given up cannabis by the time I see you again because, whether it's cannabis, whether it is M-CAT, I don't know, but you do have some mental fragility and I can virtually promise you that that is being exacerbated by cannabis. I've seen too many cases now where people have mental illness and have been using cannabis, probably heavier than you're using it but nevertheless, it's in my own mind, certainly, a contributory factor and so you need to give it up.

If there have been no further offences and you've given up the cannabis, because taking cannabis is a criminal offence, and you've saved up some money to pay compensation, and you are in a state to be able to do some unpaid work or some other community requirement which the probation service think is appropriate, then, and only then, I won't lock you up. So you are on trust for six months.

21. He then asks the offender, "Do you think you are able to comply with these things?", and he replied, "Yes. I will try my hardest."
22. Mr Schofield for the Solicitor General draws the court's attention to a number of Sentencing Guideline Council Guidelines and Sentencing Council Guidelines which were relevant to the sentencing process. First, the Definitive Guideline on Robbery (Street and less sophisticated commercial); secondly, the Definitive Guideline on reduction of sentence for guilty pleas, and third, those parts of the Guideline on New Sentences under the Criminal Justice Act 2003 applicable to deferred sentences. He draws attention to the terms of section 1(3)(c) of the Powers of Criminal Courts (Sentencing) Act 2000, whose terms were incorporated into Criminal Justice Act 2003. Section 1(3)(c) provides that a deferred sentence may be imposed only where:

The court is satisfied having regard to the nature of the offence and the character and circumstances of the offender that it would be in the interests of justice to exercise the power.

23. Finally, he submits that the imposition of a deferred sentence was unduly lenient because the judge was required to impose a significant custodial sentence. The sentence should have been increased from the starting point for a category B2 robbery, as characterised in the Guidelines, towards the top of the category range to reflect the aggravating factors, albeit it is not submitted that the sentence should have been aggravated in accordance with section 145 of the Criminal Justice Act 2003. It should then have been reduced proportionately to reflect the mitigating factors and offender's personal mitigation. Even after giving due credit for his guilty plea, Mr Schofield submits that the custody threshold was significantly passed. He also submits that, even if the sentencing judge was not obliged to impose an immediate custodial sentence, the nature of the offence and character and circumstances of the offender were such that the offender did not fall into the limited class of offenders for whom a deferred sentence was appropriate. The offender should in all the circumstances have been sentenced immediately with the conditions of deferment incorporated into his sentence.
24. For the offender, Mr Bailey accepts that the sentence was lenient but submits that it was not unduly so. It was an exceptional case which justified what he acknowledges was an exceptional course. The offence was committed by a 32-year-old man with no previous convictions. The explanation for his offending was that the cannabis he had consumed had, unknown to him, been spiked by MCAT: the MCAT that was subsequently found when he was tested. On any view of the matter the decision to rob the garage store armed with a comb indicates that it was a spur of the moment decision to commit the offence.
25. He accepts, as he must, that the offence was serious, involving three victims, but he submits that the physical injuries suffered were relatively slight. None of the victims required treatment. It was apparent to the police that he was unfit to be interviewed when arrested, and when he was interviewed he expressed remorse and made admissions.
26. He recognised that the offender failed to attend the Pre-sentence Report interview but it is said the offender was not used to court proceedings and opened the appointment letter too late.
27. He relies on a long letter from the offender's mother which refers to his conduct after the robbery and the attempted suicide at Harrison House.
28. So far as the guidelines on robbery are concerned, Mr Bailey recognises that the judge placed the offending in category B2, with a starting point of 4 years and a range of 3 to 6 years, but argues that, even if it were within category B2, the sentence could properly be one of 3 years before giving credit for the plea. However, his primary submission is, that since there was minimal physical or psychological harm, the offence could properly be categorised as category 3 harm, in which case the Guidelines indicate a starting point of 2 years' custody and a range of 1 to 4 years.
29. We have considered the submissions. We start with a few preliminary observations. First, it is clear that deferment of a sentence is a sentence for the purpose of section 36 of the Criminal Justice Act 1988 and therefore the Attorney General can challenge a deferred sentence that is unduly lenient. See, for example, Attorney General's Reference (No 22 of 1992) (Thomas), [1993] 14 Cr.App.R.(S.) 435.
30. Second, notwithstanding what the offender said after the commission of the offence, we accept the judge's assessment that this offence was not racially or religiously aggravated within the meaning of section 28(1)(a) and (b) of the Crime and Disorder Act 1988 for the reasons that the judge gave.
31. Third, while it is clear that the offender was a habitual cannabis user and it may be that the cannabis he used on this occasion had been adulterated, this does not provide any significant mitigation. People who habitually use cannabis are using an illegal drug whose chemical make-up cannot be assured.
32. Fourth, we are unimpressed by the excuse for not attending the Pre-sentence Report interview. Those who adopt this course put at jeopardy points which may be put in their favour.
33. Fifth, it is plain from a letter dated 9 March 2018 that the offender has obtained employment. His line manager has described both his attendance and his attitude as "excellent". "He has been committing to extra day's work on Sunday and has not let me down."
34. Sixth, we agree with Mr Schofield's submission that by reference to the Sentencing Council Definitive Guidelines on Robbery this offending was within the category of medium culpability (B). There was the production of a type of weapon other than a bladed article and there was a threat of violence by using it. So far as harm was concerned, we consider this was a category 2 harm. There was not serious physical harm but nor was there no or minimal physical or psychological harm. On this basis the guidelines indicate a starting point of 4 years and a category range of 3 to 6 years.
35. There were also aggravating circumstances. First, although the robbery lasted only a few minutes, there were three victims. The offender held a weapon which Mr Stanlard believed, at least initially, was a knife, against his neck and threatened him. The offender also threatened Mrs Krishnasamy and he punched Mr Alargasamy three or four times which led Mr Alargasamy to tell his wife to give the offender cash from the till. Second, the robbery was carried out under the influence of drugs.
36. Against this, there were a number of mitigating factors, as described in the Guideline. First, his lack of previous convictions at the age of 32; second, his mental condition; third, the apparently impulsive nature of the offence, and fourth, a determination to address his drug abuse.
37. In our view, on the unusual facts of this case the judge would have been entitled to take a starting point of 3 years before the important matter of his plea was taken into consideration.
38. Seventh, the offender had effectively admitted the facts of the offence at the police interview on 24 August. The reason he did not do so at the first hearing before the magistrate on 1 November was his legal representative's concern about his fitness to plead or stand trial. Following an assessment of fitness to plead by Dr Vandenabeele, he entered his plea on 15 December. In these circumstances it would have been open to the judge to give a full one-third credit for the guilty plea.
39. Eighth, the power to defer sentence was originally set out in sections 1 and 2 of the Powers of Criminal Court (Sentencing) Act 2000. These provisions are substituted under schedule 23 of the Criminal Justice Act 2003. Subsection 1:

(1)The Crown Court or a magistrates' court may defer passing sentence on an offender for the purpose of enabling the court, or any other court to which it falls to deal with him, to have regard in dealing with him to-

(a) his conduct after conviction (including, where appropriate, the making by him of reparation for his offence); or

(b) any change in his circumstances; but this is subject to subsections (3) and (4) below

……

(3) The power conferred by subsection (1) above shall be exercisable only if-

(a) the offender consents;

(b) the offender undertakes to comply with any requirements as to his conduct during the period of the deferment that the court considers it appropriate to impose; and

(c) the court is satisfied, having regard to the nature of the offence and the character and circumstances of the offender, that it would be in the interests of justice to exercise the power.

(4) Any deferment under this section shall be until such date as may be specified by the court, not being more than six months after the date on which the deferment is announced by the court[...]

40. The Sentencing Guideline Council Guideline on new sentences introduced under the Criminal Justice Act 2003 refers to deferred sentences at page 14. Having described the legislation at heading A, the guidelines refer under heading B to the use of deferred sentences.

1.2.6 Under the new framework there is a wider range of sentencing options open to the courts, including the increased availability of suspended sentences, and deferred sentences are likely to be used in very limited circumstances. A deferred sentence enables the court to review the conduct of the defendant before passing sentence, having first prescribed certain requirements. It also provides several opportunities for a defendant to have some influence as to the sentence passed-

(a) it tests the commitment of the offender not to offend;

(b) it gives the offender an opportunity to do something where progress can be shown within a short period;

(c) it provides the offender with an opportunity to behave or refrain from behaving in a particular way that would be relevant to sentence.

1.2.7 Given the new power to require undertakings and the ability to enforce those undertakings before the end of the period of deferral, the decision to defer sentence should be predominantly for a small group of cases at either the custody threshold or the community sentence threshold where the sentencer feels that there would be particular value in giving the offender the opportunities listed because, if the offender complies with the requirements, a different sentence will be justified at the end of the deferment period. This could be a community sentence instead of a custodial sentence or a fine or discharge instead of the community sentence.

41. Paragraph 1.2.8 makes clear that any conditions during the period of deferment that the court considers appropriate should be specific, measurable conditions, so that the offender knows exactly what is required and the court can assess compliance. While there may be some doubt whether the court could ensure compliance with some of the conditions, in the present case the terms of those conditions were clear enough. We would, however, have normally expected such conditions to have been set out in a Pre-sentence Report.
42. The reference to the limited circumstances in which a deferral sentence is appropriate (paragraph 1.2.6 of the Guidelines) and the "Small group of cases for custody threshold", (paragraph 1.2.7), is reinforced by the observation of this court in Attorney General's Reference (No 101 of 2006), (P) [2006] EWCA Crim 3335 at paragraph 17:

Deferral of a case like the present will therefore only be appropriate if a non-custodial sentence was a proper and realistic possibility on the facts of the case.

43. We have concluded that it was proper and realistic for the judge to decide, on the basis of what he knew, that he would be able to pass a 2-year sentence for this offence, which he would be able to suspend. Although such a sentence might be regarded as lenient, we would not regard it as unduly so. Once the judge had reached that conclusion, it was open to him to defer sentence on the terms and over the period that he did in the interests of justice.
44. Accordingly, although we grant leave, we will not interfere with this sentence. This was an unusual set of circumstances and our conclusion should not be regarded as broadening the availability of deferred sentences.