Imprisonment - Length of sentence - Robbery

Attorney General's Reference (Nos 48 and 49 of 2011); R v Stokes and another

The first offender, S, aged 34, lived with her children in Cardiff. She was a regular user of cocaine. The second offender, F, aged 36, lived in a hostel in Cardiff. He was also a drug user and he had a history of burglary and of carrying bladed articles. S's sister was a home-carer for the victim, aged 75, who lived alone in a flat in Cardiff. The victim had a history of health concerns, including heart attacks.

He had met S in the past and she knew where he lived. One day, F and his female companion went to S's house. They hatched a plan to go to the victim's home. On the night in question, S and F went to he victim's flat. The victim was in bed when he heard the doorbell ring. On the second ring, he went to the door and shouted 'who is it?'.

S replied that it was his daughter, Julie, and that she missed him. The victim opened the door. S and F, who was wearing a motorcycle helmet, walked into the flat. S walked past the victim and when he turned towards her, F grabbed him by the neck from behind and he put a knife to his throat and asked 'where's the money?'. The victim pointed F to the safe but said that he could not remember the combination to unlock it. F told him to find it or that he was dead. F pulled the victim to the bedroom and pushed him to the floor. F knelt on his back and called him a 'nonce'.

He placed a knife to the victim's throat and further demanded money. The victim said that he had none. F put the tip of the knife to the victim's eye and said 'if you don't tell me, I'll gorge your eyes out'. S, who was searching through drawers, told the victim to 'give him the money or he'll kill you'.

She took the victim's wallet from the bedside cabinet and found a written combination for the safe. F picked up an urn, containing the ashes of the victim's deceased wife, from the bedside. The victim told F what it was and begged him not to touch it. F replied, 'I don't give a fuck'. He wrestled jewellery from the victim, including a ring. He and S stole £26,000 worth of jewellery and left the flat. Before doing so, F placed a towel over the victim and told him not to move. They left the flat.

The victim called police. They attended the flat and found him sweating profusely and shaking. He was taken by ambulance to the hospital where he was admitted for two nights. F and S were subsequently arrested. F, who had a previous conviction in 1990 for a similar robbery of an elderly lady in her home, pleaded guilty to robbery and to possessing a Class A drug, namely amphetamine.

He was assessed as presenting a serious risk of harm and he was diagnosed as having a dissociable personality disorder, a feature of which was aggressive and violent behaviour. He was sentenced to an extended sentence of seven-and-a-half years comprising four-and-a-half years' custody and an extension of three years, less time spent on remand. S, who had two previous convictions for shoplifting and threatening behaviour, pleaded guilty to robbery. She was sentenced on the basis that she did not become aware that F was carrying a knife until they were inside the property and that she had not anticipated the degree of violence used by F on the victim.

S was sentenced to three years' imprisonment. The judge, in imposing those sentences had applied category one (street robbery or mugging) of the guidelines of the Sentencing Guidelines Council. The judge had taken a starting point of seven years. The judge had taken account of the aggravating and mitigating factors and he had given full credit for the guilty pleas. The attorney general applied for leave to refer the sentences to the Court of Appeal, pursuant to section 36 of the Criminal Justice Act 1988, as unduly lenient. Leave was granted.

The attorney general submitted that the judge had erred in misplacing the offence into the wrong bracket of the sentencing guidelines council and in adopting too low a starting point. The correct category was category four (violent personal robberies in the home), which recommended a sentence of between 13 and 16 years' imprisonment.

It was submitted that the sentences were unduly lenient in the light of the following aggravating factors: (i) that the robbery had been in the victim's home; (ii) the use of a knife and threats to kill (iii) that a vulnerable victim had been targeted; (iv) that there had been two offenders; (v) the robbery had been at night and that entry had been gained through the use of trickery; (vi) that a disguise had been worn and that force had been used, with the long lasting psychological and physical consequences to the victim; (vii) the previous convictions of the offenders; and (viii) that less than half the items had been recovered.

The court ruled: In the instant case, the sentences imposed were unduly lenient. There had been serious aggravating factors, including that F had been convicted for a similar offence, he habitually carried a knife, and the gratuitous cruel remark he had made about the victim's deceased wife.

There were no meaningful mitigating factors save for the offenders' guilty pleas. While there was no overt physical damage to the victim at the time, it was a grave offence. It followed that the starting point in the case of F was not seven years but 12 years. However, the judge had had good reason to distinguish between the offenders; S had not been the leader and she had no relevant previous convictions. The starting point in the case of S was not lower than eight years.

The extended sentence in the case of F would be quashed and substituted by 12 years, comprising eight years' custody and an extended licence period of four years. The sentence of three years' imprisonment would be quashed and substituted by a sentence of five years and four months' imprisonment.

R v O'Driscoll 8 Cr App Rep (S) 121 considered; A-G’s References (Nos 38, 39 and 40 of 2007); R v Campbell [2007] All ER (D) 34 (Sep) considered.

Stephen Thomas (instructed by Martyn Prowel Solicitors) for S. David Pinnel (instructed by Grech Gouden Partnership) for F. Esther Schutzer-Weissmann (instructed by the Treasury Solicitor) for the attorney general.