Neutral Citation Number: [2008] EWCA Crim 3223
 
No: 2008/5696/A4 and 2008/5698/A4 
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Thursday, 18th December 2008
 
B E F O R E:

LORD JUSTICE LATHAM 

MRS JUSTICE RAFFERTY DBE 

MR JUSTICE ANDREW SMITH 

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REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 CRIMINAL JUSTICE ACT 1988 

ATTORNEY‑GENERAL'S REFERENCE NOs 62 and 63 OF 2008 
 
R E G I N A 

‑v‑ 

DANIEL ALAN VALENTINE

DAMIEN PAUL JACKSON
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Computer Aided Transcript of the Palantype Notes of  
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Mr A Darbishire appeared on behalf of the Attorney‑General
Mr G Pons appeared on behalf of the Offender Valentine
Mr BR Narain appeared on behalf of the Offender Jackson
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J U D G M E N T
1.	LORD JUSTICE LATHAM:  This is an application by the Attorney‑General for leave to refer to this court sentences on these two offenders on the grounds that they were unduly lenient.
2.	We give leave.
3.	The first offender is Daniel Valentine, who is 28 years of age.  The second is Damien Jackson, who is 22 years of age.
4.	On 15th August 2008 Valentine pleaded guilty to six offences of robbery, one offence of attempted robbery and an associated offence of taking a motor vehicle without authority.  An additional offence of robbery was taken into consideration.  On 1st October 2008 he was sentenced to a total term of imprisonment of 3 years and one month.
5.	Jackson pleaded guilty on the same date to four counts of robbery, one count of attempted robbery and two counts of taking a motor vehicle without consent.  He was subsequently sentenced to a total term of imprisonment of 18 months.  He has in fact now been released on licence.
6.	The facts have to be stated in a little detail in order to understand the conclusion to which we have come.  The first offence in point of time occurred on 16th December 2007, when Valentine entered the Co‑op store in High Wycombe, in the first instance simply it would appear to see whether or not it would be easy for him to rob the store, because he left and then came back, having changed part of his clothing and disguised his face with a scarf.  He jumped over the counter, telling the female shop assistant to open the till.  She was so frightened that she was simply unable to open the till because she was panicking and in shock.  It is right to say that Valentine told her that he would not hurt her.  He opened the till himself by scanning a packet of cigarettes and took £550 in cash.  As he left he said "Merry Christmas".
7.	The next robbery in point of time occurred some six days later, on 22nd December 2007.  This was the offence which Valentine asked to be taken into consideration.  On this occasion Valentine was accompanied by a second man.  There were two assistants working in the store at the time, a male assistant and a female assistant.  The male assistant was subject to some violence during the course of the robbery, although it is right to say that it was not at the hands of Valentine.  Both the male assistant and the female assistant were terrified, and indeed the male assistant protected her by pulling her into his arms.  The male assistant was then forced by his fear to open the tills, and £1,170 in cash and some cigarettes were taken.
8.	The next offence in point of time was 5th January 2008.  On this occasion Valentine was accompanied by three co‑offenders.  They entered the Co‑op in London Road Wokingham, again seeking to disguise themselves with scarves covering their faces.  Two of the men jumped over the counter and demanded that the male sales assistant open the tills.  One of the group threatened to hit and kill the staff if they did not co‑operate.  An assistant opened the tills, and one of the robbers filled the notes into a plastic Co‑op bag.  They then took a large quantity of cigarettes.  The total in cash was £840.  The cigarettes were valued at £2,800.
9.	The next robbery involved the offender Jackson, who on the evening of 7th January 2008, with one other man, entered the One Stop shop in Hedge End, Hampshire.  Both had their faces covered.  They approached the two cashiers, saying, "Give us all your money", "open the till and give us your fucking money."  They climbed over the counter.  The assistants opened the tills and £1,100 in cash was taken.  The assistants, not surprisingly, described feeling intimidated.  This was another occasion when one of the robbers said "Merry Christmas" as they left.  It was clearly a frightening incident for those in the store; and one female assistant was terrified that they may come back and felt that when making the call to the police she should hide in order to do so, even though they had left the store by then.
10.	The next offences in point of time occurred in Southampton on 11th January 2008.  Valentine and Jackson were together.  They had possession of a stolen vehicle, which was the subject of the charge of taking a motor vehicle, and used it to go, first, to a Co‑op store at Midanbury in Southampton.  Two female assistants were in the shop.  The two offenders, together with another man, had their faces covered with scarves and shouted at the two assistants to "open the fucking till".  Although no verbal threats beyond this were made, she was very frightened by their aggression and the noise that they made.  The other assistant in fact refused to open her till.  But despite that the offenders were able to open it and escaped with £340.
11.	Later on, the same three men went to the Co‑op store in Wodehouse Road in Southampton, and there demanded that the female assistant behind the counter open the tills.  She was unable to do so, was shocked and frightened and felt threatened and intimidated.  They did not seek to open the till on that occasion.  They simply seized cigarettes to the value of £760, before running out of the store, pushing a female customer out of the way as she tried to stop them leaving.
12.	Then on the evening of 20th January 2008, the first offender, that is Valentine, who at that stage had his arm in a sling following a road accident, went into the Co‑op store in Steventon in Oxfordshire.  He made a purchase and clearly, having realised that there was nobody apart from the assistant in the store, phoned, it transpired Jackson, who arrived, together with another man, shortly thereafter.  All these then demanded that the female store manager open the tills.  She refused to do so.  She was threatened; and it is thought that the first offender, that is Valentine, realised that they were going to get nowhere and persuaded them all to leave, which they did.
13.	Then the same day the same tactic was used when Valentine went into the Co‑op store in Wootton, Oxfordshire by himself and made a purchase, before telephoning Jackson.  Then Jackson and another man entered, again with their faces largely covered.  They demanded money, jumping over the counter saying, "Open the till now ... open the fucking till now, or I'll have you."  The store supervisor was not surprisingly terrified.  The till was opened and £281 in cash was grabbed.  A member of the public tried to intervene; and he was attacked by Jackson and the third man.
14.	About ten minutes later it would appear that Valentine appreciated that the police were coming to the scene and phoned up Jackson, who had gone to a public house not far away.  Jackson was arrested at the public house and was found to have been driving a Ford Ka, which had been stolen previously.  That constituted the second of the offences related to motor vehicles to which Jackson pleaded guilty.
15.	It is right to say that, apart from a small possible cut to a member of the public, there is no evidence that anybody was physically hurt.  There were no victim impact statements as such before the court, but a number of the witness statements described the shock and fright created by the way in which these robberies took place.
16.	Neither offender made any comment in their interviews after arrest.
17.	Counsel on behalf of the Attorney‑General submits, in relation to both these offenders, that this was a campaign of robberies targeted against small businesses.  It would appear in most cases that the store was staffed simply by either a female or two female assistants, who did not have significant security.  It can be seen from what we have said that it would appear that on a number of occasions the scene of the robbery was visited by one or other in order to determine whether or not it was a suitable place to rob.  They were obviously planned and on each occasion there was at least an attempt at disguise.
18.	As far as Valentine is concerned, he has a bad record, including a number of offences of dishonesty.  Indeed, he was on licence after release from serving a 3‑year prison sentence at the time of committing the offences.
19.	As far as Jackson is concerned, he did not have such a significant record of previous convictions.  However, there were three previous convictions, the last one when he was 16 years of age.
20.	It is submitted on behalf of the Attorney‑General that, quite simply, where there have been a significant number of robberies of this nature, a sentence of 3 years' imprisonment ‑‑ which is what was imposed on Valentine for the robberies and attempted robbery — does not meet the justice of the case.  We have been referred to the Sentencing Guidelines Council Definitive Guideline on Robbery.  We note that for a single offence of robbery involving a robbery of a small business, where there is the threat of force or use of minimal force, the sentencing range is up to 3 years in custody.
21.	In determining the extent to which these sentences on these two offenders are in the circumstances unduly lenient, we take into account not only the aggravating features and the Definitive Guideline to which we have referred, but also the fact that, as we have indicated, each of these offenders pleaded guilty and were treated as pleading guilty on the earliest possible occasion; they are accordingly entitled to credit for that.
22.	As far as Valentine is concerned, despite his bad record, there was clear evidence that he had sought assistance during his period on remand and had been taking an Enhanced Thinking Skills course, and was reported as having obtained substantial benefit from that course which it is said bodes well for the future.  As far as he was concerned, the Recorder was accordingly entitled to take the view, which he did, that there was hope for the future which enabled him to reduce the sentence which he would otherwise have imposed.
23.	As far as Jackson is concerned, his relative youth was prayed in aid before the Recorder and before us, as was the fact that he has suffered from mental illness.  Indeed, it may be that he was suffering from mental illness at the time of the offences, in the sense that he was depressed and failing to take appropriate medication.
24.	Jackson has now been released from custody and we have two reports on his progress since then.  They do not speak with one voice, but they do indicate that he has attempted to help himself in the period that he was in custody.  Accordingly, it is submitted that the Recorder was entitled to take, as the Recorder again acknowledged he was taking, a lenient course in his case.
25.	This court has repeatedly said that leniency in itself is not something which this court can or should discourage in appropriate cases.  However, we have to stand back and look at what was involved in this case.  As counsel on behalf of the Attorney‑General has said, this was a campaign of robbery, undoubtedly targeting vulnerable shops, albeit without the use of weapons.  But young men like these two young men and those with them can instil sufficient fear without any need for weapons to enable them to achieve their objective in a way which terrifies those who are the subject of the robberies.  The courts need to protect vulnerable shops such as these.
26.	Even though in the case of Valentine we acknowledge that there was material here which indicated that the offender was taking seriously the courses that he was undertaking in the hope that he may better himself hereafter, the fact is that, for the number of robberies in question, 3 years' imprisonment was quite simply inadequate.  Even giving full credit for a plea, the only proper sentence in his case is one of 6 years' imprisonment and that is the sentence that we impose.  We do so on each of the robbery counts to be served concurrently.  As far as the taking and driving away offence is concerned, that will be served concurrently.  So the total sentence will be 6 years' imprisonment.
27.	As far as the offender Jackson is concerned, we indicated at the outset that we considered that the appropriate sentence in his case was one of 4 years' imprisonment, giving him credit for his plea of guilty.  It seems to us that in all the circumstances, particularly bearing in mind the fact that he has been out of prison now for a short time, therefore having to be returned to prison carries with it an added element of punishment, and taking into account the reports that we have of his progress both in prison and since he was released from prison, the appropriate sentence is in total one of 3 years and 6 months.  That sentence will be imposed in respect of each of the offences of robbery and will be served concurrently with each other, and the sentences imposed in relation to the taking and driving away will remain but will also be served concurrently.
28.	We in Valentine's case take into consideration, as did the Recorder, the offence of robbery which he asked to have taken into consideration at his trial.
29.	Those are the orders that we make.
30.	Mr Darbishire? 
31.	MR DARBISHIRE:  My Lord, in relation to the second offender, Mr Jackson, the trial judge made an order that the time spent on remand should be counted against his sentence: 162 days.
32.	LORD JUSTICE LATHAM:  We make the same order under section 240.
33.	MR DARBISHIRE:  My Lord, I hope this is a lawful order for the court to make.  Mr Jackson is at liberty ‑‑ 
34.	LORD JUSTICE LATHAM:  Yes.
35.	MR DARBISHIRE:  ‑‑ so he will have to surrender from a day to be pointed.
36.	LORD JUSTICE LATHAM:  Yes.
37.	MR DARBISHIRE:  No doubt my learned friend will address you upon that.  Would my Lord indicate that the balance of the sentence should take effect from his surrender? 
38.	LORD JUSTICE LATHAM:  Yes.
39.	THE ASSOCIATE:  My Lord, the nearest police station to his address Southampton Central police station, 12 o'clock noon tomorrow? 
40.	LORD JUSTICE LATHAM:  That would be the usual order.  Subject, Mr Narain, to anything you say, we order that he surrender himself to Southampton Central police station at 12 o'clock tomorrow.
41.	MR NARAIN:  My Lord, I am not sure there is anything I can say.
42.	LORD JUSTICE LATHAM:  Thank you very much.  We do so and on that basis we direct that the recommencement of service of the sentence will be from the time of his surrender to the police station.
43.	Yes, Mr Pons? 
44.	MR PONS:  Can I make one point, that does not (inaudible).  It is simply this.  In reading out the facts, you omitted mention of count 3, the Didcot robbery, which took place on 27th December.  It appears in the first and the second draft of the reference, but does not appear in the final one.  The only reason I raise it is that plainly in going through the facts the record should reflect everything that he pleaded guilty to.
45.	LORD JUSTICE LATHAM:  Absolutely.
46.	MR PONS:  It should be read into the record at some stage.
47.	LORD JUSTICE LATHAM:  We will deal with that.  I will make sure that I keep the papers for the purpose of dealing with the transcript.
48.	Yes, thank you very much.