Non-custodial sentence - Suspended sentence

Attorney General's Reference (No 64 of 2011); R v Crawford: Court of Appeal, Criminal Division (Lords Justice Pitchford, Wilkie and Mr Justice Holroyde (judgment delivered extempore)): 14 September 2011

The offender, aged 19, then aged 18, lived, with his mother on an estate in Hammersmith, West London, that was known for drug dealing and anti-social behaviour. During the early hours of Wednesday 27 April 2011, the victim, a restaurant manager, had left work and was making his way home on foot. The street was quiet.

As he was crossing the road, the offender, dressed in a black hooded top with the hood up, and black baggy trousers, approached him and took hold of his shoulder bag. The offender pointed a kitchen knife with a serrated edge at the victim. The victim attempted to pull away and he moved into the road. The offender made some jabbing motions with the knife in an apparent attempt to stab the victim to the side of his body. The victim fell to the ground and the offender removed his bag from his shoulder and made off.

A member of the public witnessed the robbery and called the police, who arrived shortly thereafter. The offender was arrested near to the scene and he was found to be in possession of the knife and the victim's bag. The offender, who had no previous convictions, was arrested. He immediately made admissions to the offence and he also did so in interview with the police. He contended that he had been returning from a friend's home, that he had found the knife on the ground in the market area, and that he had picked it up and formed the intention to rob someone as he had needed money.

The offender had a previous caution for possession of crack cocaine and cannabis. It was submitted at the sentencing hearing that the offence was a level two offence for which the recommended starting point was four years' custody, with a range of between two and seven years' imprisonment. A pre-sentence report noted that the offender had become involved in drug dealing for financial reasons. It assessed him as presenting a high risk of harm to the public and noted that the instant offence represented an escalation in the seriousness of his offending.

The pre-sentence report recognised that the guidelines of the Sentencing Guidelines Council recommended a custodial sentence but it stated that the court might wish to consider the highly exceptional course of suspending the sentence in the light of the mitigating factors, which included: (i) the plea of guilty; (ii) the offender's lack of intent to excuse his behaviour; (iii) his regret and remorse for committing the offence; (iv) his lack of previous conviction; (v) his relatively young age; and (vi) his developing maturity, including the fact that he had enrolled on an NVQ course on motor vehicle maintenance repair.

In addition to the mitigating factors highlighted by the author of the pre-sentence report, was the offender's obvious frankness in interview with the police and with the probation officer. The aggravating factors were: (i) that the offence had been committed at night, in an apparently deserted area; and (ii) the persistence with which the offender had waved the knife at the victim, causing the victim to believe he would be stabbed.

The offender's behaviour was of concern to his mother and the sentencing court had sight of her letter expressing that concern and her support of the offender's efforts to reform his life. In the event, the judge accepted the offender's explanation of how he had come by the knife in question and, having taken account of all aggravating and mitigating factors and of the guidelines, he sentenced the offender to 12 months' imprisonment, suspended for two years, with a supervision requirement and an order that the offender do 200 hours of unpaid work.

The attorney general sought leave, pursuant to section 36 of the Criminal Justice Act 1988, to refer the sentence to the Court of Appeal, Criminal Division, as unduly lenient. Leave was granted. There was evidence before the Court of Appeal that the offender, who attended the appeal hearing in person, had attended appointments as ordered for some eight weeks, that he had completed some 65 hours of unpaid work, that he was imminently expecting a baby with his girlfriend, and that he had not committed further offences.

The attorney general submitted that the sentence was unduly lenient and fell outside the appropriate sentencing range for the instant type of offences.

The court ruled: In the instant case, taking all factors into account, there had been no justification for the judge adopting a starting point of less that three years' detention in a young offenders institution. The offender was entitled to a discount of 12 months in the light of his guilty plea. Accordingly, the appropriate sentence was one of two years' detention.

It followed that the sentence of 12 months' imprisonment imposed upon the offender was unduly lenient. Nevertheless, the Court of Appeal was required to make a judgment as to what was the appropriate sentence against a backdrop where the offender had responded well to the suspended sentence order and where he appeared to have turned a corner.

He had appeared in court to listen to the appeal and to what he had to have realised was his probable fate, namely to return him to custody for a period of about 18 months' detention in a young offenders institution. However, the question for the court was whether its duty to the public required it to take the course in wholly exceptional circumstances, given the pre-sentence report and the court's conviction that to send the offender to custody now would snuff out the chances that his rehabilitation would be completed.

In all the circumstances, it was not in the interests of justice to return the offender to custody. In the exercise of the court's discretion, the court declared that the suspended sentence was unduly lenient but the suspended sentence would not be quashed. R v Macpherson [2009] EWCA Crim 1285 considered.

Samantha Yelland, solicitor advocate (instructed by Farrell Matthews & Weir) for the offender. Alison Morgan (instructed by the Treasury Solicitor) for the attorney general.