Court of Appeal in Northern Ireland Decisions

Neutral Citation no. [2012] NICA 31	Ref:	MOR8580
Judgment: approved by the Court for handing down	Delivered:	7/9/12
(subject to editorial corrections)*


 


IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND ________ THE QUEEN -v- JOHN LANDON PARKER ________ Before: Morgan LCJ, Girvan LJ and Coghlin LJ ________

MORGAN LCJ (giving the judgment of the court ex tempore)

[1] This is an application for leave to appeal by John (Josh) Parker against determinate custodial sentences of four years for robbery and eighteen months for assault occasioning actual bodily harm. Leave to appeal was refused by Gillen J on 25th June 2012.

[2] On 29th July 2010, the applicant, then aged seventeen years, his co-accused Conan Harkin and the victim, Brian Mongan, were drinking in Mongan's house in Londonderry. They were all intoxicated. Harkin produced a knife from his sock and demanded that Mongan give him money for a taxi. The applicant began to search the property for money and when Mongan resisted, he head-butted him. Mongan fell to the settee and the applicant continued to search the bedroom and living room for money and valuables. Mongan sought to resist the robbery again and Harkin stabbed him once in the chest. The applicant and Harkin then left Mongan?s house with £4 – £5 in cash and some bottles of alcohol. They did not seek medical attention for Mongan who by this stage had escaped from the property. Shortly thereafter, they were detected in the city centre with alcohol and on being searched, Harkin was found to have a knife.

[3] At interview, the applicant stated that he had fallen asleep, had paid little attention to the events in Mongan's house and that he had taken some alcohol but denied robbery or assault. He was charged with robbery contrary to section 8(1) of the Theft Act (Northern Ireland) 1969 and unlawful and malicious wounding with intent to do grievous bodily harm contrary to section 18 of the Offences against The Person Act 1861. He pleaded not guilty at first arraignment on 12th September 2011. On 7th November 2011, the date fixed for his trial, the applicant was re-arraigned and pleaded guilty to robbery and assault occasioning actual bodily harm contrary to section 47 of the 1861 Act.

[4] On 23rd February 2012, the applicant was sentenced on the count of robbery to a determinate custodial sentence of four years, comprising two years in custody and a two year licence period as was his co-accused Harkin. On the count of section 47 assault, he was sentenced to a determinate custodial sentence of eighteen months, comprising nine months in custody and nine months on licence, to run concurrently with the robbery sentence.

[5] The basis of the plea was not the subject of any agreement. It was argued on behalf of the applicant that he pleaded guilty on the basis that he did not know that Harkin had a knife. That is completely at variance with the evidence in the depositions and it is accepted that no specific case was made on behalf of the applicant to that effect during the plea. Where the depositions make it plain that such an aggravating factor is apparent it is for a defendant who takes issue with those depositions to make the dispute known. In our view there was ample material to justify the learned trial judge approaching this case on the basis that Harkin brought the knife, the applicant was aware that it was being used to threaten the injured party but he did not agree to its use.

[6] The Pre-Sentence report indicated that the applicant was born on 26 May 1993 and was therefore 17 years old at the time of the offence. His parents separated when he was 12 and he was looked after within the care system thereafter. It is clear that he was disruptive in his early teens and medication was prescribed for symptoms of ADHD which had some beneficial effect but the medication was then discontinued. His behaviour led to threats from paramilitaries which required his removal from the homes at which he was residing. At the time of these offences he was drinking to excess and taking cannabis. The picture is one of a chaotic lifestyle which has developed from a family background in which the applicant himself was the victim of violence. It is surprising that in approaching the sentencing range in this case no mention of these matters is made in the learned trial judge's sentencing remarks. In light of his background the pre-sentence report assesses his risk of re-offending as high.

[7] The mitigating factors in this case are his plea which was not entered at the first opportunity and we agree with the learned trial judge that he cannot therefore get full credit for it. His youth and associated background is an important matter to take into account because the onus on the court to examine rehabilitative options are much greater in the case of a young offender who may be directed away from further criminal conduct by contact with the Youth Justice Agency. There remains, however, the overriding need to protect the public. In his case the use of violence was modest although the headbutt clearly did inflict injury. There does not appear to have been any premeditation and there was no sophistication about the execution of the offence. The applicant and his co-accused were apprehended shortly afterwards. In his favour the latest reports from the Youth Justice Agency suggest some progress and maturity on the part of the applicant

[8] In Attorney General?s Reference (No 1 of 2008) [2008] NICA 41, the Court of Appeal confirmed the starting point for robbery and the seriousness with which the courts view such offences:

"[48] In Attorney General's reference (No 1 of 2004) [2004] NICA 6 this court gave guidance as to the starting point for robbery where a plea of guilty has been entered.

We said: -

"The normal starting point for robbery where the defendant has not played a central role should be in the range of 5 to 7 years on a plea of guilty. Obviously, the range of sentences for those who (like the offender?s accomplice) play a central role should be much higher.

…

[52] Robbery remains one of the most prevalent types of serious crime in our community. The courts must react to this regrettable phenomenon with sufficiently severe penalties to ensure that a clear signal is sent to those who may contemplate involvement in such activity that lengthy periods of imprisonment will be imposed where involvement in such crime is established."

[9] Both of these References related to the robbery of commercial premises and robberies committed in other ways may require different approaches. It is for this reason that this court in R v Devine [2006] NICA 11 declined to follow the overly prescriptive approach of the Sentencing Guidelines Council while recognising the validity of the aggravating and mitigating factors which informed them.

[10] An example of such an approach was the decision of this court in Attorney General's Reference (No 10 of 2003) (Clarke) [2003] NICA 39. The case involved the robbery of a mobile phone by youths from another youth in Holywood, Co Down. Carswell LCJ stated:

"[8] The courts have in recent years emphasised their disapproval of street robberies or "muggings". In this jurisdiction this court in R v Benson (1997) JSB Sentencing Guideline Cases, page 5.1.25 dismissed an application for leave to appeal against a sentence of two and a half years for robbery, where a young man was grabbed by a group of youths, punched and kicked and his leather coat stolen. Similar cases may be found in the reported English authorities In Attorney General's References Nos 4 and 7 of 2002 (Lobban and others) [2002] 2 Cr App R (S) 77 the court, while not purporting to lay down guidelines, expressed the view that robbery of mobile telephones, which was far too prevalent, required a robust approach. Lord Woolf CJ said:

"Custodial sentences will be the only option available to the courts when these offences are committed, unless there are exceptional circumstances. That will apply irrespective of the age of the offender and irrespective of whether the offender has previous convictions."

The sentencing bracket was stated to be eighteen months to five years for thefts of mobile telephones. There are no reported cases in which a non-custodial sentence has been upheld in cases involving street robberies."

[11] This offence might be thought to have many of the characteristics of a mugging. The degree of violence for which the applicant is responsible was modest and there are genuine mitigating factors in his background. This offence is not at the top end of the scale but his preparedness to acquiesce in the use of the knife to threaten is a serious aggravating factor. Harkin brought the knife to the scene and used it. He had a record for violence. We accept that there is disparity between Harkin and the applicant. In our view a determinate custodial sentence of 4 years was manifestly excessive in the circumstances. We consider that a determinate sentence of 2 years 6 months is appropriate. We consider in all the circumstances that 12 months should be in custody and 18 months on licence.