APPEAL COURT, HIGH COURT OF JUSTICIARY
	[2013] HCJAC 137
Lady Paton Lord Brodie Lord Wheatley	Appeal No: XC178/13   OPINION OF THE COURT   delivered by LADY PATON   in   CROWN APPEAL AGAINST SENTENCE   by   HER MAJESTY'S ADVOCATE   Appellant;   against   GARY SMITH   Respondent:   _______

 

Appellant: G Wade AD; Crown Agent

Respondent: Bell Sol Ad; Central Criminal Lawyers, Livingston

 

31 October 2013

 

Crown appeal: unduly lenient sentence

[1] At a preliminary hearing at Edinburgh High Court on 7 February 2013, the respondent pled guilty to an amended charge of assault and attempted robbery at commercial premises, involving the presentation of a firearm or imitation firearm. On 4 March 2013 Lord Burns imposed a community payback order with a 3-year supervision requirement and 200 hours unpaid work (discounted from 250 hours to reflect the plea).

[2] The Crown appeals against the sentence as unduly lenient. It is the Crown's position that the sentence failed adequately to address the seriousness of the offence, the risk posed by the respondent, and the need for retribution and deterrence.

 

Circumstances of the offence

[3] On Saturday 7 April 2012, at about 6.05 pm, the appellant, then aged 17, entered a general store in Armadale with his face masked by a scarf. He pointed what looked like a hand-gun at the shopkeeper, Mr M, and said "give me the fucking money". An onlooker was so afraid that she was rooted to the spot and began crying. Mr M thought that he was going to be shot. However he noticed the gunman's hand shaking, took a chance, came out from behind the counter, and grabbed the gun. In doing so he discovered that the gun was a plastic BB gun. He pulled away the scarf masking the gunman's face, and recognised a customer. He shouted to the onlooker to call the police, which she did. Mr M released the respondent, who tried unsuccessfully to hit him on the head with the gun. He then ran out of the shop. As he left, a 7-year-old boy saw him and exclaimed "He's got a gun".

[4] When the police arrived, they drove around the area looking for the gunman. They were also directed to a particular house in Armadale by Mr M. Firearms officers attended at that address. However the respondent was not there.

[5] The shopkeeper and his wife were badly affected by the attempted robbery. Not only was the incident itself alarming, but there had been previous similar incidents. The shop was acquiring a bad reputation, which was affecting business.

 

The respondent's telephone call to the police, and his subsequent conviction and sentence

[6] At 10.30 pm on 7 April 2012, the police received a telephone call from the respondent. He stated that he had done something bad, and needed help. In what was a confused conversation, the respondent talked of trying to rob a shop. He mentioned Armadale and an armed response. He could not remember much as he had been "vallied out of his mind". He asked the police to come and get him. Police attended at his address in Shotts. He was crying and in distress. He appeared to be under the influence of alcohol. He stated that he had robbed a corner shop in Armadale with a BB gun and got nothing. He said that his uncle had put him up to it. He became abusive, and was arrested for breach of the peace.

[7] Subsequently, when interviewed, he denied any involvement. He was shown a CCTV recording of the incident. After the interview, when the recording equipment was switched off, he said:

"Look, it was me. My uncle kept on and on at me. I'll tell you everything if I get out. I'll tell you where the gun is if I get out."

 

[8] When cautioned and charged, he replied:

"I want my solicitor and I want to do this again."

 

No weapon was ever recovered. Accordingly its precise nature is unknown.

[9] On 7 February 2013, the respondent pled guilty to an amended charge as already noted. In the plea in mitigation, the court was advised that the respondent was (by then) aged 18, with no previous convictions. He was single and unemployed. Some weeks before the incident, he had been asked to leave his mother's home. He had moved in with a man he called his uncle, who had had a relationship with one of his maternal aunts. The respondent claimed that his uncle was involved in illegal drugs, and that drugs were freely available to him. He could not remember events in his uncle's house immediately before the incident. However he had been told by others that his uncle had provided some of the clothing he was wearing at the time of the offence. Also the BB gun was his uncle's.

[10] The criminal justice social work report notes some disturbing features in the respondent's history. He was brought up in a home where there was considerable domestic violence. When aged 11, he was accused of assault at school. When aged 12, his mother's partner committed a murder. When aged 14, he was warned in relation to anti-social behaviour and charged with breach of the peace. When aged 15, he was charged with assault. In November 2009, he was referred to the Safer Neighbourhood Team. At page 8 of the report, the respondent was assessed as a high risk of re-offending, unless he addressed the issues underlying his offending and his general lifestyle.

[11] The judge imposed a community payback order with three years supervision and 200 hours work in the community. As he explained at page 6 of his report to this court:

"The accused was 17 years of age at the time of the commission of this offence, and 18 at the date of sentencing. He had no previous convictions. I therefore had to consider whether no other method of dealing with him than detention was appropriate. Although he had some history of violent behaviour, there was no indication that these allegations had been pursued beyond referral to the Safer Neighbourhood Team. There were certain mitigatory factors which I concluded indicated that an alternative to detention ought to be imposed in this case. Apart from his age, it was clear from the Crown narration that he had contacted the police in the evening of 7 April 2012 in recognition that he had committed a serious criminal offence and needed the assistance of the police in connection therewith. While his position did vary somewhat thereafter, and in particular during interview he maintained a denial of responsibility, immediately after the recording equipment had been switched off, he reverted to his original position.

 

In addition to that, when seen by the police at Tulloch Road, Shotts, he maintained that his 'uncle' had put him up to committing this crime and that that person also made available to him a variety of drugs during the time the accused lived with him. There was no confirmation of this person's role, but I had no reason to doubt that the accused had been put out of his mother's home and had experienced a period when he was not subject to parental control.

 

The accused, at the time of imposing the sentence upon him, was in the care of an aunt who was exercising a positive influence upon him, and had been in a relationship with a 17 year old girl for about five months prior thereto. His mother, who was temporarily homeless but awaiting a permanent tenancy, was also anxious to assist the accused. I had regard also to the background material which is set out on page 5 of the social work report which narrates that when he was 12 years of age his mother's partner committed a murder. It was evident that the accused had a difficult childhood and according to the report at page 9 had witnessed domestic violence between his mother and that partner from an early age. However I was informed that the accused was making a deliberate effort to stay away from trouble and in particular from previous peers in the Armadale area who had exerted a bad influence upon him. There were, therefore, indications that the accused was attempting to change the direction of his life assisted by his mother, maternal aunt and girlfriend and his move to the Harthill area.

 

I had regard to the considerations set out in the case of Kane v HMA 2003 SCCR 749 and in particular to what the then Lord Justice Clerk said in paragraphs 11 and 12. Considerations of retribution and deterrence are plainly material considerations, but in the case of a young offender such as the accused in this case, his personal circumstances required to be carefully considered ... as were his home background circumstances. I considered that the accused may not have been solely responsible for the behavioural problems he had shown in the past, and there may well have been a level of encouragement from the 'uncle' who the accused mentioned when first seen by police officers, or from others. It was clear that he has a disturbed family background, and I considered that a community based disposal was justified in the unusual circumstances of this case, which might give him an opportunity for rehabilitation before he became 'trapped in a cycle of crime'. I accordingly decided to impose a community payback order on this young man, which comprised not only unpaid work in the community of 200 hours, but an offenders supervision requirement. It seemed to me that it was essential in this case to build in rigorous supervision requirements in order that he was carefully supervised over a relatively long period in order to promote his rehabilitation. I chose the period of three years for that supervision requirement and further ordered that the case should be reviewed periodically at a special hearing for that purpose before me.

 

These requirements were in my view necessary to ensure that the dangerous propensities which this accused had shown in carrying out the current offence would be carefully monitored by [his] being under the supervision of a responsible officer for a period until he reached the age of 21. Furthermore I was anxious that I should be periodically involved in reviewing progress in this regard. It seemed to me that, with these safeguards in place, an alternative to a period of detention should be imposed."

 

As already noted, the Crown appealed against the sentence as unduly lenient.

 

Submissions for the appellant

[12] The advocate depute referred to HM Advocate v Bell 1995 SCCR 244 at page 250D. It was accepted that the appellant was young with no previous convictions; also that no-one was injured, and the attempted robbery was bungled and inept. But retribution and deterrence were important as well as rehabilitation of the offender. The court had to take care not to give undue weight to the personal circumstances of the accused unless there were exceptional circumstances particularly relevant to the offence. This premeditated attempted robbery had been terrifying for the shopkeeper, the female customer, and the 7-year-old boy. The shop's reputation had been damaged.

[13] The criminal justice social work report recorded that the respondent had not demonstrated remorse. He had not considered the impact or consequences of his actions. He lived with his aunt in Harthill, but had been associating with the wrong people. He had trouble with alcohol and drugs, and was assessed as a high risk of re-offending. A report by a social worker Maureen Roberts dated 21 May 2013 noted that there had been good compliance with the criminal social work programme by the respondent, but not complete engagement with the Youth Inclusion Programme. It was unclear whether his non-attendance at some parts of the programme had been caused by his attending other scheduled appointments.

[14] In the result, the circumstances in the present case were distinguishable from those in Kane. In Kane, the robbery had not been premeditated and the premises were not commercial. Admittedly a knife had been used, but there was more to be said in mitigation as a result of the offender's personal circumstances. There were favourable reports, and Kane was remorseful. He had taken immediate steps to deal with his substance abuse, and could show that he was making progress. Reference was also made to Thompson v HM Advocate, Morrison, Sentencing Practice paragraph F12.0053, Henry v HM Advocate 3 February 2012 (XC684/11), Nelson v HM Advocate 8 July 2011 (XC320/11), HM Advocate v Millard and McChesney 2000 GWD 25-939, McLeod v HM Advocate 1998 GWD 14-716, and the Sentencing Guidelines, page 14.

[15] In conclusion, the advocate depute submitted that, despite the guidance in Kane, the sentence in the present case was unduly lenient. A period of detention should be imposed.

 

Submissions for the respondent

[16] Mr Bell for the respondent accepted that little could be made of the fact that the weapon was an imitation. Nor could there be any attempt to play down the terror experienced by the shopkeeper, the other customer, and the 7-year-old boy. But the sentencing judge was correct to have regard to Kane v HM Advocate, cit sup, paragraph [11]. It was highly significant that the respondent contacted the police. He had not co-operated while being tape-recorded, but he had in effect confessed both before and after the recording. The respondent had also taken steps to try and turn his lifestyle around. The uncle was no longer part of his life. The sentence selected by the judge represented a continuance of that changed lifestyle, with supervision. The respondent's mother was present in court. She was in homeless accommodation in Armadale, and was not in a position to offer him accommodation. But the respondent's aunt (his mother's sister) was prepared to give him suitable accommodation in Harthill, in circumstances which were having a positive influence on the respondent. The respondent was carrying out landscaping and gardening work, and was also involved to some extent in the Youth Inclusion Programme. Reference was made to Kane v HM Advocate, HM Advocate v Millard and McChesney. The sentencing judge had considered all the facts with great care. He had found a non-custodial alternative which was appropriate, and which kept the respondent under his supervision until he was aged 21. The sentence carried significant sanctions. The Crown appeal should be refused.

 

Discussion and decision

[17] We agree with the advocate depute that attempted robbery of a shop with a firearm is an extremely grave offence, which would in most cases attract a substantial custodial sentence. It is irrelevant that the gun in question was an imitation. Moreover the circumstances of this offence were undoubtedly terrifying for the shopkeeper, the other customer, and the 7-year-old boy. The shopkeeper was very brave to tackle the gunman, and took a major risk in doing so. Moreover he and his wife have had to suffer the consequences of this serious crime, in terms of both personal life and business success.

[18] Nevertheless, as Lord Justice General Hope explained in HM Advocate v Bell 1995 SCCR 244 at page 250D-E:

"It is clear that a person is not to be subjected to the risk of an increase in sentence just because the appeal court considers that it would have passed a more severe sentence than that which was passed at first instance. The sentence must be seen to be unduly lenient. This means that it must fall outside the range of sentences which the judge at first instance, applying his mind to all the relevant factors, could reasonably have considered appropriate. Weight must always be given to the views of the trial judge, especially in a case which has gone to trial and the trial judge has had the advantage of seeing and hearing all the evidence. There may also be cases where, in the particular circumstances, a lenient sentence is entirely appropriate. It is only if it can properly be said to be unduly lenient that the appeal court is entitled to interfere with it at the request of the Lord Advocate."

 

With that guidance in mind, we turn to the various factors weighed up by the sentencing judge. These included the following.

 

Section 207(3) of the Criminal Procedure (Scotland) Act 1995

[19] First and foremost, the sentencing judge had to apply section 207(3) of the 1995 Act, which provides:

"The court shall not ... impose detention on an offender [under 21 years of age] unless it is of the opinion that no other method of dealing with him is appropriate; and the court shall state its reasons for that opinion ..."

 

Kane v HMA

[20] As Lord Justice Clerk Gill pointed out in Kane v HM Advocate 2003 SCCR 749 at paragraph [11]:

" ... considerations of retribution and deterrence ... are material considerations; but there is more to sentencing than sending messages to society, particularly in the case of a young offender. The court has to consider the personal circumstances of such an offender; his home background; the extent to which he may not be solely responsible for his behavioural problems; and the opportunities that a non-custodial sentence may give for rehabilitation before he becomes trapped in the cycle of crime."

 

Further relevant factors

[21] The sentencing judge took into account the appellant's age at the date of the offence (17); his age at the date of sentencing (18); the fact that he had no previous convictions; his troubled home background, all as set out in paragraph [10] above; the fact that he had been put out of his mother's home a few weeks prior to the offence; the bad influence attributed to a so-called uncle (said to be involved in the drugs trade) with whom he went to live; the fact the robbery may have been instigated and encouraged by that uncle; the inept nature of the attempted robbery; the respondent's subsequent telephone call to the police, acknowledging that he had done something wrong and that he needed help; his confessions, albeit not given while the tape-recorder was switched on; and the attempts which he had made to put his life in order, for example by moving away from the uncle and other bad influences in Armadale to a better environment at his aunt's house in Shotts.

 

The sentencing judge's approach

[22] The judge carefully weighed up all the factors, and then selected a sentence which he considered met the requirements of retribution, deterrence, protection of the public, and rehabilitation of the offender. In our opinion, his approach cannot be criticised. In the particular circumstances of this case, the sentencing judge was entitled to reason as he did, and to reach the conclusion he did, all as set out in paragraph [11] above. Despite the gravity of the crime, we are unable to say that the sentence imposed fell "outwith the range of sentences which the judge at first instance, applying his mind to all the relevant factors, could reasonably have considered appropriate."

[23] In the result, we refuse the Crown appeal.