No: 200004343/R2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
 
Date: Thursday, 5th October 2000

B E F O R E :
LORD JUSTICE ROCH

MR JUSTICE ROUGIER

and

MR JUSTICE GRAY

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ATTORNEY GENERAL'S REFERENCE

No. 48 of  2000

(Martin Clive JOHNSON)
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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Tel No: 0171 831 3183   Fax No: 0171 831 8838
(Official Shorthand Writers to the Court)
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MR M HEYWOOD appeared on behalf of the Attorney General
MR B O'NEILL appeared on behalf of the Respondent

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JUDGMENT

1.	LORD JUSTICE ROCH:  On 30th June this year at Southwark Crown Court the offender, Martin Clive Johnson, pleaded guilty to an offence of robbery and was sentenced to four years’ imprisonment. The Attorney General seeks leave to refer that sentence to this court for review under section 36 of the Criminal Justice Act 1988 as being a sentence which is unduly lenient.
2.	A sentence is unduly lenient where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate. A sentence will not be unduly lenient merely because it is a lesser sentence than the members of this court would have imposed.
3.	The facts of the offence, in brief, were that the offender forced his way into the home of an elderly and frail man and there assaulted him and took from him his money. In a little more detail, the victim was John Francis Tagney who is 79 years of age. He is a man who suffers from arthritis to such an extent that he has to walk with a stoop, he needs the assistance of a stick, and because of the stoop his overall height is a mere four feet five inches.
4.	On the afternoon of 29th March this year the offender was being kept under observation by police officers. He was seen to be paying attention to elderly pedestrians in the vicinity of a building which provides sheltered accommodation for elderly people in the form of a number of flats. He was also seen trying to open the door and a window of a flat close to the flat of Mr Tagney.
5.	Mr Tagney had been shopping that afternoon and at about 6.15pm he returned home. As he entered through the communal doorway of the block of flats he was approached by the offender. He told the offender that he could not let him in as there had been several unpleasant incidents at the flats in the recent past. However, the offender pushed past Mr Tagney and ran into the block and up the stairs. It seems that Mr Tagney’s flat is on the ground floor.
6.	Inside the block the offender was seen by another tenant, a Sheila Bynoe. She approached him. He appeared to be agitated and walked away. He claimed that he was a pizza delivery man. At first she accepted that story, and later realised that pizzas were not delivered to the block. When she realised that, she left her flat again and again saw the offender, and the offender again appeared to be very agitated and walked away from her.
7.	Returning to Mr Tagney, he had not been in his flat for very long when there was a banging on the door. He opened the door a little way and the offender was standing there. He tried to shut the door but the offender forced it open and pushed Mr Tagney into the flat and onto the floor, face down. The offender then went through Mr Tagney’s trouser pockets, taking about £24 in money from him. Mr Tagney tried to stop him. He managed turn on his back, and when he did so the offender punched him on the mouth and nose. Mr O’Neill, who has appeared for the offender, concedes that that was an act of gratuitous and unnecessary violence.
8.	The offender then went to the sideboard, or the dresser, and searched through Mr Tagney’s personal effects, found nothing value and left without taking anything other than the money. Mr Tagney was able to summon the warden of the block. Later, when he was seen by a doctor, no facial bruising was found. There was tenderness of his right ileum, and a day or two later he complained of pain in his right ribs.
9.	The offender was arrested a week later. He denied committing the robbery. When interviewed he declined to answer questions. At identification parades, when he was picked out by Mrs Bynoe and four police officers, he said that Mrs Bynoe was mistaken and the  police officers had identified him because they had seen photographs of him. However once proceedings were started against him, he, through those acting for him, indicated at an early stage his intention to plead guilty.
10.	Turning to the offender himself, he is 36 years of age. He has appeared before the courts on 21 occasions and been convicted of a total of 49 offences. His first appearance was in October 1977 when he was 13 years of age. The majority of offences that he has committed have been either burglary or theft. In November 1993 he was sentenced to a total of five years’ imprisonment for an offence of robbery; two burglaries, one of which was a burglary of a dwelling house; an offence of handling stolen goods, and an offence of theft. He was also in breach of a probation order which had been imposed for similar offences in January 1993.
11.	In June 1996 he appeared before the court again for three offences of robbery. Those offences were committed at about the same time as the offences for which he was sentenced in November 1993 and formed part of the same series of offences committed by him at that time.
12.	They were offences in which the offender had forced his way into the homes of elderly people,  assaulted them and stolen their property. He was sentenced to three years’ imprisonment, the sentencing judge on that occasion wishing to increase the total sentences for the 1993 offences to an appropriate figure by passing three year sentences starting in June 1996.
13.	The Attorney General submits, in our view correctly, that the following aggravating features are present. First, the age and frailty of the victim; secondly, the attacking of the victim in his own home; thirdly, the use of gratuitous and unnecessary violence, the blows to the face; fourthly, the offender had targeted the victim because he was elderly and frail; fifthly, that 13 months earlier the offender had been released from lengthy prison sentences imposed for similar offences.
14.	Mr O’Neill submits that there are certain mitigating features; two of which Mr Heywood for the Attorney General readily accepts. First, the offender pleaded guilty and the indication of the plea did not come at the last moment. Secondly, as it so happens, Mr Tagney suffered only minor physical injury.
15.	Mr Heywood has relied on six authorities in support of his submission that this is an unduly lenient sentence. In considering applications under section 36 this court has to have regard to reported  cases and in particular to guideline cases. None of the cases to which we have been referred could be said to be a guideline case but they are comparable.
16.	The first is R v Lee [1995] 16 Cr App R (S) 60. This was the burglary of a dwelling house at night during which the occupier, an 80 year old lady, was assaulted. Lee was then 28 years of age. He was a man with 11 previous convictions for burglary. He pleaded guilty to burglary and common assault and was sentenced to five years’ imprisonment. That sentence was upheld on appeal.
17.	The second authority is R v Stewart [1996] 2 Cr App R (S) 302. This again was a burglary of a dwelling house. Entry was obtained by Stewart accosting the occupier, a 77 year old man, outside his flat, and seizing him by the throat and threatening him by saying he had a knife. Inside the flat the occupier was blindfolded, having been manhandled into the flat. Once he was blindfolded, Stewart proceeded to ransack the flat, taking £350 and items of sentimental value.
18.	This court described this offence as a vicious burglary but acknowledged that the victim suffered no significant physical injury. A sentence of seven years was upheld. Stewart was 39 years of age with an appalling record and he had fought that case. This court observed that that sentence was severe and at the  top end of the bracket, but was not manifestly excessive.
19.	The third case is that of R v Brown and Samuels [1996] 2 Cr App R (S) 319, the burglary of a dwelling house, the occupant being out at the time. The burglary was committed by the two appellants who took £650 worth of jewellery. Both appellants were experienced burglars. They pleaded guilty and sentences of four years’ imprisonment were upheld; this court saying that deterrent sentences in that case were justified.
20.	We were next referred to R v Hearne [1999] 1 Cr App R (S) 333. Hearne robbed a 90 year old lady in her own home. Shortly after committing the offence he surrendered himself to the police. Hearne was known to the victim, having done work for her. He pleaded guilty. He was a man of previous good character and had several excellent character references which were produced on his behalf. This court reduced a sentence of five years’ imprisonment to three years’ imprisonment.
21.	The fifth case is the Attorney‑General’s Reference No.1 of 1999 (Newbury) [1999] 2 Cr App R 398. The offender, Newbury, committed a series of robberies ‑‑ five in number ‑‑ on elderly persons in their own homes. The ages of the victims ranged from 71 to 88  years of age. In the case of two of the victims, Newbury repeated the offence. No great violence was used. The reason for the robberies was the fact that Newbury was a drug addict and needed to finance his habit. Newbury pleaded guilty. This court increased sentences of four years to six years. The court presided over by Beldam LJ observed that eight years would have been an appropriate total for the five offences, and six years would have been an appropriate sentence for a single offence.
22.	The final authority to which Mr Heywood drew our attention is that of R v Blades [2000] 1 Cr App R (S) 463. This was a street robbery of a lady aged 74. This court observed that on a guilty plea a sentence of four to five years’ imprisonment would be appropriate for such an offence. As Blades had a bad record for similar offences, five years would have been the appropriate sentence for him. The court then went on to consider the sentence actually passed on the basis that it was an appropriate case for the application of the statutory provision relating to sentences which go beyond being commensurate for the offence committed. In that case this court was presided over by Bingham CJ.
23.	When he made his submissions that this was not a case in which the sentence could be said to be unduly  lenient, Mr O’Neill referred us to three cases, only one of which, in our view, need be referred to in this judgment. That is the Attorney General’s references No. 19 and 20 of 1990 [1990] 12 Cr App R (S) 490. The offenders were McLoughlin and Clarke. They pleaded guilty at a very late stage to aggravated burglary and attempted burglary. In committing the aggravated burglary they entered a dwellinghouse in the small hours of the morning. The house was occupied by a 69 year old lady whose husband was away. She awoke to be threatened, as she believed, by a knife. The offenders claim that it was a screwdriver. One offender told her to remove her rings from her fingers, and when she could not do so because the joints of her fingers were swollen with arthritis, he threatened to cut off her fingers. One offender, Clarke, had 35 other offences taken into consideration. The records of the offenders do not emerge from the report but this court did observe that there was nothing that could be said for McLoughlin and Clarke other than that they had pleaded guilty at a late stage. They were sentenced to three years and five years’ imprisonment respectively.
24.	In deciding if a sentence is unduly lenient the court bears in mind that a trial judge is particularly well placed to assess the weight to be given to the various competing considerations. Bearing that in mind  we have looked at the sentencing remarks of the sentencing judge, and in those remarks the judge said this to the offender:
“I give you full credit for your plea of guilty and I recognise that that must be a courageous matter for you to have done. I also bear in mind that you are now remorseful, which does not appear to be the case when you were first seen by the police. I note the background of drugs but you are now apparently drug free.
I take into account, also, in dealing with you, is (sic) your wish to see your sister as soon as you possibly can because of your concern as to her demise with multiple sclerosis. I bear in mind what Mr O’Neill has said to me about your wish to break the cycle of offending. But people like you must be deterred from attacking elderly, frail ... people. They deserve and need protection. I have a duty not only to deal with you in a fair way, but I have a duty with the public as well.” 
25.	We had placed before us by Mr O’Neill a report from the prison where the offender is being held, which confirmed the matters of which the judge took account by way of personal mitigation when sentencing this offender.
26.	The decided cases to which we have been referred indicate, in our view, that sentences in cases such as this, where there is a single offence and the offender has pleaded guilty, range between four and seven years’ imprisonment. Where in that bracket the appropriate sentence comes must depend on all the relevant circumstances, among which the offender’s record and character will be important, as will be the timing of  the guilty plea: an early plea or an early indication of a guilty plea removing a cause of anxiety to the victim.
27.	Here the offender’s record and the act of gratuitous violence would have led the members of this court to have imposed a sentence greater than the four year term passed by the judge. We consider that the sentence passed was lenient but in the light of the comparable cases brought to our attention we cannot conclude that it was unduly lenient. The sentence falls at the bottom end of the range of sentences which are permissible, as disclosed by the cases we have read. This was a case where the guilty plea was indicated at a very early stage and there were indications of remorse on the part the offender, and of a desire to reform which appeared in the reports and which the judge accepted and took into account. We observe that the up‑to‑date report from prison supports those parts of the pre‑sentence report.
28.	Moreover, the sentence was of a length where the offender has to serve a greater proportion of the sentence in prison and would be subject to more stringent conditions on his release than if the sentence had been less than four years. It is these factors which, despite the offender’s formidable record of previous offending, have led us to the conclusion  that this is not a case where this court should characterise the sentence as unduly lenient and increase the sentence passed. We grant the Attorney General leave but we decline to review this sentence.
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