No. 2004/05475/A1
Neutral Citation Number: [2004] EWCA Crim 3209
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2

Date: Tuesday, 23 November 2004

B e f o r e:

LORD  JUSTICE  KENNEDY

MR  JUSTICE  HUGHES

and

MR  JUSTICE  SIMON

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ATTORNEY GENERAL'S REFERENCE No. 113 of 2004

UNDER  SECTION  36  OF

THE  CRIMINAL  JUSTICE  ACT  1988
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R E G I N A

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DEAN  JOHN  FOLLOWS
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Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4A
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MR M ELLISON appeared on behalf of the ATTORNEY GENERAL

MR F JONES appeared on behalf of THE OFFENDER
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J U D G M E N T

LORD JUSTICE KENNEDY:  
1.  Her Majesty's Attorney General seeks the leave of this court to refer to the court under section 36 of the Criminal Justice Act 1988 a sentence which he considers to be unduly lenient.  We grant that leave. 
 
2.  The offender is Dean John Follows, who is 23 years of age, having been born on 9 July 1981.  
 
3.  On 13 August 2004, at a plea and directions hearing at Swansea, he pleaded guilty to four offences: robbery, two offences of supplying a controlled drug of Class C to another (Valium), and having a bladed article (a lock‑knife) in a public place.  On 27 August, in the Crown Court at Swansea, he was sentenced to five years' imprisonment in respect of the robbery and six months' imprisonment in respect of the other offences, those sentences to be served concurrently.  
 
4.  The victims of the robbery were a man aged 69 and his 64 year old partner.  They lived together in a ground floor flat in Llanelli.  At about 4pm on 1 June 2004, the offender and two others, Stacey Harries and Stephen Roberts, were seen by local residents acting suspiciously in a lane at the rear of the road in which the flat lay.  One of the residents made a telephone call to the police.  About fifteen minutes later the offender approached the open back door of the victims' flat.  That door led directly into the kitchen, where the male victim, Mr Toland, was preparing dinner.  His partner, Miss Mills, was in her room watching television.  She suffered from asthma and emphysema and was not very mobile.  
 
5.  According to Mr Toland, the offender asked whether he could borrow a spoon.  Mr Toland said that he recognised the offender as someone who had asked to borrow a knife a week or so earlier.  It so happened that there was a claw hammer sitting on the top of the washing machine.  In his police interview the offender denied that he had gone to the flat to borrow cutlery and claimed that he went there to purchase bags of tobacco.  There is reason to believe that that could be right.  Mr Toland turned away from the offender.  The offender then picked up the claw hammer from the top of the washing machine and used it to strike Mr Toland more than once on the head.  Mr Toland recalled receiving three blows to the head, which knocked him to the ground.  The offender then made his way into Miss Mills' room still armed with the hammer.  As he entered her room she got to her feet.  He pushed her onto the settee.  She claims that he struck her once with the hammer behind her right ear, but he denied this, and his plea was accepted on the basis that there was no blow with the hammer to her. 
 
6.  Despite his injuries, Mr Toland followed the offender into Miss Mills' room.  When he entered the room he saw the offender grabbing Miss Mills by the neck or shoulders and saying, "I want money".  Mr Toland managed to pull the offender off Miss Mills.  As he did so, he noticed that the offender had grabbed her handbag.  Although Mr Toland tried to hold on to him, the offender managed to escape out of the back door with the handbag.  He then joined his two friends and the three of them ran off.  The offender left the hammer in the flat.  
 
7.  The handbag contained various items, including credit cards, four bags of tobacco, a mobile phone, a pen and at least £100 in cash.  
 
8.  Closed‑circuit television established that the offender and Stephen Roberts went to Roberts' flat soon after the incident, where they changed their clothing.  
 
9.  Some neighbours witnessed the aftermath of the robbery.  Mr Toland was struggling to stay on his feet.  His head, his face and the top half of his body were covered in blood.  Miss Mills was crying uncontrollably.  She also had blood spattered on the side of her head.  There was blood distributed through the hall way, the living room and the kitchen of the flat.  
 
10.  The victims were taken to hospital where their injuries were treated.  On examination Mr Toland was found to have three deep lacerations and one superficial laceration to the scalp at the back and side of his head, and a depressed fracture of the skull underlying the most severe laceration, but fortunately with no associated intracranial complications.  He was kept in hospital overnight and discharged the following day.  
 
11.  Miss Mills was found to have a short, superficial laceration on the side of her head close to her right ear.  That wound was cleaned and a dressing was applied.  
 
12.  Not surprisingly, the robbery had a significant psychological impact on both victims.  They were rendered feeling unsafe in their own home and having trouble sleeping.  Miss Mills had to be prescribed medication to treat her anxiety and consequent feelings of sickness. 
 
13.  On that same evening, at 6.55pm, the police discovered the offender at his sister's address.  When asked where he had been that afternoon, he claimed that he had been with his sister, which she denied.  He was subsequently arrested.  On the way to the police station he volunteered a confession to the robbery, but he indicated that no one else had been involved, which at any rate so far as the robbery itself was concerned was true.  
 
14.  When interviewed the following day, he said that on the day of the robbery he had met up with his partner and Stephen Roberts and they had gone into town.  He had taken about ten to fifteen Valium tablets, and had supplied about six or seven to the other two ‑‑ hence the offences of supplying drugs to others.  He also injected himself with heroin.  As he walked past "Val's flat" he decided to go in and get some tobacco because he had run out.  He said that he had purchased tobacco off Miss Mills on two or three previous occasions.  He asked Mr Toland if he could have a pouch of tobacco.  Mr Toland refused and said that the offender still owed him for the last one that he had had.  The offender said that Mr Toland started to turn nasty and went to get something from a cupboard.  So he picked up the hammer and hit him over the head once or twice.  He then ran to Miss Mills' room, pushed her out of the way and grabbed her handbag.  He denied hitting her with the hammer and, as we have indicated, that denial for the purpose of sentence was accepted.  He said that he had been out of his head when he committed the robbery and that he regretted what he had done.  
 
15.  An important feature of this case, as emphasised by Mr Jones on his behalf, is that it appears from the facts as spoken to by both sides that there is no reason to say here that this offender went to that house that evening in order to commit robbery.  
 
16.  As a result of the admissions he made in interview, the offender was charged with the offences to which we have referred.  At the time of his arrest he had a lock‑knife on him, but as Mr Jones has pointed out, it supports the proposition that he did not go there with violence in mind that that particular weapon was never even produced. 
 
17.  Stacey Harries and Stephen Roberts were charged on the same indictment.  They pleaded guilty to handling some of the tobacco from the handbag.  Those pleas were accepted by the prosecution.  
 
18.  Mr Ellison on behalf of the Crown submits that there are a number of aggravating features present in this case.  The victims were a vulnerable, elderly couple robbed in their own home.  The degree of violence was in excess of that required to commit even that offence.  It involved the use of a hammer to strike the head of Mr Toland and caused significant injuries to him.  Furthermore, there was here, as is so often the case, the psychological impact upon the victims of the offence itself.  They were rendered feeling unsafe in their home and having trouble sleeping.  The offender, it is pointed out, has a number of previous convictions, including offences for residential burglary, assault, affray and possessing an offensive weapon.  In particular, in 2000 he was convicted of an offence of robbery.  That was a street robbery where the victim was apparently elderly.  He was then sentenced to three years' detention in a young offender institution.  
 
19.  It so happens that this offence was committed during the operational period of a suspended sentence, but it was in relation to a wholly different type of offence.  So for present sentencing purposes that is of no materiality.  
 
20.  Mr Jones on behalf of the offender has made the point to which we have already referred, namely that the circumstances of this offence were different from those to be found in many of the reported cases dealing with this type of behaviour.  In particular he invited us to consider the circumstances which are to be found in Attorney General' Reference Nos 32 and 33 of 1995 (R v Pegg and Martin) [1996] 2 Cr App R(S) 346, R v Gabbidon and Bramble [1997] 2 Cr App R(S) 19, and Attorney General's Reference No 89 of 1999 (R v Farrow) [2000] 2 Cr App R(S) 382, in which a reference is made to the earlier Attorney General's Reference No 1 of 1999 (R v Newbury) [1999] 2 Cr App R(S) 398.  

21.  We accept the submission made by Mr Jones that in those cases, and indeed in many of them, the circumstances were very much worse ‑‑ very often consisting of night time invasions of homes by men, for example, clad in balaclavas and where gratuitous violence was used towards the victims, which bordered on (if it did not reach) torture.

22.  It is said that in this case the use of the hammer was spontaneous.  To a degree that plainly is so.  But what is more important perhaps is that from the outset this young man admitted what he had done and he has never wavered in relation to that.  He has also expressed considerable remorse, and there is no reason to believe that the remorse is other than genuine.  Mr Jones points out that, since being sentenced, the offender has made serious efforts to come to terms with the problem of drug addiction.  He is now housed in a drug‑free wing and generally he has done extremely well during his time in prison.  
 
23.  It seems to us that if one looks at this offending in the round, had the matter been contested the judge would have had to be thinking of a much more severe sentence.  The authorities indicate that the sentence could not have been less than eight years' imprisonment, and would probably have been in the region of nine years' imprisonment.  But the fact is that it was not contested and therefore it was necessary for the judge to discount that original decision as to the appropriate level of sentence in order to allow for the plea of guilty.  That would bring the appropriate sentence down to about six years' imprisonment.  

24.  The sentence which was imposed was five years' imprisonment.  In our judgment it was therefore a lenient sentence ‑‑ as Mr Jones has conceded.  But in deciding whether or not it was unduly lenient, and in particular whether this court should now decide to interfere with it, we have to have regard also to the fact of double jeopardy: this young man appears before this court effectively to be sentenced for a second time.  In the circumstances we see no reason whatsoever to interfere with the sentence which was imposed.  Accordingly, although we have entertained this application, the sentence remains as imposed in the Crown Court.    

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