No: 200903407 A4 
Neutral Citation Number: [2009] EWCA Crim 2689
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Wednesday, 9 December 2009
 
B e f o r e:

LORD JUSTICE HUGHES
(Vice President of the CACD) 

MRS JUSTICE RAFFERTY 

MR JUSTICE HEDLEY 
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REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 OF THE CRIMINAL JUSTICE ACT 1988 
ATTORNEY‑GENERAL'S REFERENCE NO 55 OF 2009
(JOHN ROY SHIRLEY)
 
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Computer Aided Transcript of the Stenograph Notes of  
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Mr D Hislop appeared on behalf of the Attorney General
Mr D Penny appeared on behalf of the Offender
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J U D G M E N T
1.	LORD JUSTICE HUGHES:  Her Majesty's Attorney General seeks leave to refer under section 36 of the Criminal Justice Act 1988 sentences totalling six and a half years imposed on a 23 year‑old after he had pleaded guilty to three different robberies: one of them had been committed in the home of the victims; the other two had been committed armed with an imitation firearm.  We give leave.
2.	These three robberies were committed within a week.  They were plainly a short course of serious offending.  On 4 February 2009, with an accomplice, the defendant committed a targeted robbery at about a quarter to nine in the evening at the home of a couple in their 60s, in a village outside Oxford.  When the householder opened the front door, he was confronted by two men in balaclavas, one of whom was armed with a large meat cleaver.  The two men forced their way in.  One of them hit the householder in the face sufficiently hard to knock him down and to cause a cut, which bled.  They demanded money.  They said that the couple must have it because they were retired.  It is plain that they had selected a house where the occupiers might be expected to have valuables.  It is also plain from that remark that they knew the sort of couple who lived there, so some research must have been done.  
3.	They forced the couple to hand over their wallets, including their bank cards, and they demanded to be given the PIN numbers.  Bravely, the husband of the couple gave a number, but a false one, for the card which he had handed over.  Thereafter, one of the offenders, it would seem to have been this defendant, set off to the cash machine taking the cards with him, but left his companion guarding and detaining the couple in their home.  The time that they had to wait for his return must have been, to put it mildly, a very uncomfortable one for the couple, who knew that what was likely to happen was that an angry robber might return, frustrated at the cash machine.  That is what happened.  The defendant returned, but to his credit there was at that stage no further violence.  He collected his accomplice and left, though they pulled out the wires of the telephone to prevent the alarm being sounded as they went.
4.	Two days later, on 6 February 2009, this defendant, this time alone but armed with a firearm, robbed a service station at about 8 o'clock in the evening.  He was disguised by a wig and a scarf, although at one point his face was captured on a close circuit television camera, which he must have missed.  He escaped with the contents of the tills ‑‑ not a large sum, but about £100.  The experience for the sole cashier must have been extremely frightening.  
5.	Three days after that, on 9 February, he repeated that offence, this time at a corner shop just outside Oxford at about half past 6 in the evening.  The shopkeeper was there.  A friend of his was also present.  The defendant was again armed with a pistol.  He jabbed the pistol in the shopkeeper's face and cut his face by doing so.  When the shopkeeper reacted, he hit him two or three times on the head and knocked him to the floor, and then he used the butt of the gun to strike him again a further two or three times on the head.  The defendant escaped with the contents of the till, such as they were.  The shopkeeper was left cut, bruised and generally battered.
6.	The gun had been a working air pistol, correctly classified as an imitation firearm, but having the appearance of a lethal handgun.  It is perhaps true that where an imitation gun is used, it can properly be said that although the victim cannot know that it is not a real pistol and so it is equally effective and frightening, at least no lethal injury is likely to be caused if it goes off.  In fact, this gun, as the judge rightly observed, was a working air pistol, and it could have indeed caused serious injury if it had been loaded; whether it was or not is not known.
7.	The defendant was 23.  He was not a man of good character.  He had been convicted something over 15 times previously.  His convictions included having an offensive weapon when he was 16, committing a robbery (unspecified) when he was just 17, aggravated taking of a motor vehicle when he was 18, and a series of offences of assaulting a police constable (or constables) when he was 21.  He had in the past served three custodial sentences, one of 18 months and two of four months, all before he was 20.  Latterly he had been convicted about a year before these sentences for theft, and had served a fourth short custodial sentence of two months.
8.	He was arrested not long after the offences at the home of a friend, hiding in the loft.  When interviewed, he declined to answer any questions at all.  He pleaded guilty at the first opportunity, and that was and is a matter of importance.  It could properly be said that the evidence against him was very strong because it included the recovery of (1) the gun with his DNA on it, (2) a mobile phone identified as belonging to the couple robbed in the first offence, (3) a wig as worn in the second robbery, and (4) traces of the blood of the shopkeeper who had been injured in the third robbery.  The judge was, we think, entitled to give full recognition by way of allowance and reduction for plea of guilty.  Strong evidence such as that would certainly not deter some people from contending that, for example, the person responsible was the occupant of the house where all these things were found, rather than himself.  We proceed on the basis that the judge was quite entitled to treat this as an early plea of guilty calling for the conventional recognition.  
9.	The sentence which the judge imposed was as follows.  For counts 2 and 3, the invasion of the home of the first couple, five years' imprisonment, which is the equivalent of seven and a half years had there been a trial.  For the next two robberies committed with the gun, the judge passed in each case sentences of four years and 18 months' consecutive for the firearms offence, making five and a half years.  He made the four‑year sentences concurrent to the five years on counts 2 and 3, but the two sentences for the firearms offences (18 months and 18 months concurrent to one another) were consecutive to that, and in that way, the total arrived at was a sentence of six and a half years.  As the judge observed himself, that is the equivalent of something like ten years after trial.
10.	The submission on behalf of the Attorney General is that that is unduly lenient.  The Attorney makes two complaints.  First, he contends that the judge erred in principle in not making further enquiries with a view to deciding whether or not the defendant met the criteria of the dangerous offender provisions in sections 224 and following of the Criminal Justice Act 2003.  It is rightly not suggested that the judge overlooked that question.  It is plain that a judge of this experience certainly did not do so.  What happened is that he reached a summary conclusion on the material available to him, and felt able to pass a swift sentence on the occasion when the pleas were tendered.
11.	The material before the judge on this question was limited to the nature of the present offences and the criminal history of the defendant.  The Crown was unable to place before the judge, although he enquired about it, any information at all about the previous conviction for robbery.  It had certainly been some six years earlier, but one would have expected there still to have been a record of it, and it was plainly material.  Nor did the Crown put before the judge any information about any of the other convictions, including in particular the assaults on police constables which might, depending on their facts, have demonstrated a volatility of temperament, and conceivably have been drug related, so perhaps to have given rise to further material relevant to the question of dangerousness.  
12.	We think that some judges would, when dealing with a man in his early 20s with the kind of record that this man had, have thought it wise to seek a pre‑sentence report in case there was in the background additional reason to fear a danger to the public in future, particularly had there turned out to be significant evidence of drug misuse of a kind likely to give rise to unpredictable and worrying behaviour.  However, in the absence of any information placed before him by the Crown, we take the view that the judge was entitled to say that there was insufficient material on which he should have concluded either that there was or that there might be a significant risk not of harm, because that is not the test, but of death or serious personal injury arising from further offences committed by this man.  He was also entitled to take the view that he was catering for public protection by passing a determinate sentence of some length on a young man, and there is of course, absent signs of real danger, merit in a promptly imposed sentence.  The time lapse between offence and sentence is often much too long.  
13.	Accordingly, in the absence of any additional material from the Crown, we think that the judge was entitled to proceed as he did without concluding that the risk of danger ought further to be investigated.  
14.	The next question is whether the determinate term is significantly too low.  As has been pointed out on previous occasions, the guidelines issued by the Sentencing Guidelines Council do not give either a starting point or a range for robberies in people's homes.  They do identify this group as a class in passing, and at page 15 of the Guidelines is a brief mention of a category amongst them justifying very much higher sentences of the order of 13 to 16 years after trial.  The case there referred to by the Council is R v O'Driscoll [1986] 8 Cr App R (S) 121.  That was an example of a significantly worse offence than this.  Not only was the householder a man of 80, targeted in his own home, he was tortured by his assailants.  He was struck several times so severely as to fracture both his skull and his leg, and a lighted gas poker was held to his face to force him to comply.  A sentence of 15 years after trial was upheld and was clearly justified.  Offences of robbery in the home cover a very much wider spectrum than that.  
15.	In Attorney General's Reference Nos 38 to 40 of 2007 (Crummack) [2008] 1 Cr App R (S) 56, this court suggested one approach to a robbery in the victim's house, which was nowhere near the O'Driscoll kind of offence.  The approach which the court suggested might in appropriate cases be adopted was to look at the Sentencing Guidelines range for small shop or street robberies and to increase it for the added factor of invasion of the victim's home.  In that case, where the victim knew the principal attacker, and where although a metal bar and a rolling pin had been carried, the sole actual force used was a single punch to push the victim back into a chair, this court thought that a sentence of about seven and a half years after trial was appropriate.  
16.	That needs to be read alongside R v Purcell [2009] 1 Cr App R (S) 21 at 113, which is rather nearer the present case.  There a sentence in that case of imprisonment for public protection, but a sentence based upon a notional determinate term after late plea of 11 years, was upheld and was clearly justified by the circumstances of the offence.  Cases referred to in the course of that decision of Dunn, Marcus and Hunter are in or approach the same kind of range.  
17.	In the present case, if the robbery of the couple in their 60s had stood alone, we are sure that this is worse than Crummack and nearer Purcell.  After trial, this would not call for a sentence of about seven and a half years; it would call for a sentence of the order of nine or ten years.  But it is not either an O'Driscoll offence.  It does not get to 13.  
18.	Accordingly, at that point the judge's sentence is somewhat below the right range.  Whether alone it would be so far out of line as to justify alteration on an Attorney's Reference we need not decide, because what we are absolutely clear about is that the judge fell into error in adding in effect only 18 months for the two further robberies committed with a firearm.  
19.	Of course, it is neither the law nor good sentencing practice simply to add up individual sentences where several offences in a series have been committed.  But the overall sentence does have to recognise that there is a series and not an isolated offence, otherwise, apart from anything else, the isolated offender is unfairly dealt with.  
20.	Each of the second and third robberies fell within the two years to seven years range given by the Sentencing Guidelines Council ‑‑ small shops, lone cashiers, robberies of that kind.  To such a sentence had to be added a significant increment for the use of a convincing firearm.  Moreover, there were two of them, not one.  The defendant was not of good character, and the third robbery involved not merely the threat of violence, but significant, though not grave, actual violence ‑‑ a number of blows to the head, including those delivered with the butt of the gun.  Whether sentences for those offences is best structured by raising the robbery tariff on account of the seriously aggravating feature of the gun, or alternatively by passing a consecutive sentence for the gun, does not matter.  But these were robberies, we are satisfied, which if either had stood alone by itself, and had only been one, would have called for sentences of the order of eight, perhaps nine, years after trial.  
21.	Taken together, it follows that all these offences were simply not sufficiently met by an overall term of six and a half years.  The notional term after trial could not fail to be significantly into double figures.  Ten years was not enough.  
22.	This was a series of offences committed over a very short period.  For that reason, and in order to avoid a total sentence which would be too long, we shall substitute concurrent sentences on each of the counts of robbery, taking into account in respect of each of the latter two robberies, the use of the firearm.  We bear in mind that we are significantly raising the sentence of a comparatively young man.  We quash the sentences passed by the judge, and we pass on each count of robbery a sentence of nine years' imprisonment, all concurrent to one another.  Since we have taken the firearms into account already, there is no separate penalty upon the firearms counts.