No: 2008/6571/A6 
Neutral Citation Number: [2009] EWCA Crim 893
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Tuesday, 7 April 2009
 
B e f o r e:

THE VICE PRESIDENT
(LORD JUSTICE HUGHES) 
MR JUSTICE KING 
HIS HONOUR JUDGE RADFORD
(Sitting as a Judge of the CACD)
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REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 OF THE CRIMINAL JUSTICE ACT 1988 

ATTORNEY‑GENERAL'S REFERENCE NO 72 OF 2008   
 
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Mr G Patterson appeared on behalf of the Attorney General
Mr A Khan appeared on behalf of the Offender
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J U D G M E N T
1.	THE VICE PRESIDENT:  Her Majesty's Attorney General seeks leave to refer under section 36 of the Criminal Justice Act 1988 a sentence of two years' imprisonment imposed for an offence of robbery.  We give leave.
2.	The offender had a dispute of some kind with a man called Clarke.  It may have been, as the offender suggests, over a small amount of money, claimed by Clarke and disputed by the offender, connected with the supply of cannabis.  It may have more to it.  We simply do not know and make no assumptions about where the merits of any dispute may have lain.
3.	Mr Clarke had a girlfriend with whom he sometimes lived and with whom he had a small daughter, two years old.  She had two elder children also, aged 11 and 6 at the material time.  Her home, whether or not it was sometimes occupied also by Mr Clarke, was the home of herself and those three children.
4.	The robbery which the offender eventually admitted was of her in her home and it was clearly in pursuit in some manner of the dispute between the offender and Clarke.  It was carried out however when Clarke was not in the house and was known not to be in the house.  The occupants of the house were the woman and the three children.
5.	The offender had been to the house two previous times that day.  He had first gone there in the middle afternoon.  He had seen the complainant lady.  He had demanded to see Mr Clarke and had been told that he was not there.  The complainant told the offender to go away.  Eventually he did but only after he had banged repeatedly on the door to make his point.  A little later that afternoon he came again and turned up in the back garden.  This time the complainant spoke to him from an upstairs rear window, told him in no uncertain terms to go away and although she had not in fact telephoned the police she told him that she had.  He left.  Neither of those encounters however deterred him from what then ensued.
6.	Just after 7 o'clock that evening, by which time it was dark, the complainant was at home with all three of her children.  The offender came back.  This time he had brought with him two other men as "frighteners".  The other two smashed their way into the house through the front door whilst the offender attracted the attention of the complainant householder by knocking on the back door.  The two unknown assistants to the offender were disguised by masks of some kind covering part of their faces and one of them had in his hand a 12‑inch crowbar which no doubt had been used to force entry but remained in his hand as he marched into the house and confronted the occupants.
7.	The complainant householder and her children were faced with these three intruders, two of them masked and one of them carrying a crowbar.  They were faced with demands for money and the intruders set about searching through the drawers in the kitchen.  The complainant did her best to say that there was no money and eventually that there was at least some loose change in the living room and she told them where they could find her mobile telephone to take away.  Eventually the intruders left, reinforcing as they went the demand that the police should not be told.  They had contrived to steal not a great deal but two mobile telephones and two bank cards.  They left behind disturbed furniture:  drawers pulled out, cupboards ransacked and of course the damage to the front door.
8.	The children had been present throughout the whole of this.  The eldest boy, 11 at the time, had seen and recognised the offender and accordingly it was necessary for him to be interviewed under the Achieving Best Evidence procedure and he remained until the morning of the trial a potential witness in the Crown Court.  His recorded account of the incident demonstrates that the robbers were making remarks such as "If I don't get some money I'm going to get vexed." It is not difficult to imagine how frightening this noisy and potentially violent intrusion must have been to the complainant and each of her children.  Certainly the 11‑year‑old frankly said that he was very scared by what had happened and after the event the complainant recorded that the incident had left a significant mark on the children.  They were over‑cautious and over‑anxious if the door should be knocked, one of them was no longer willing to go to nursery and the elder boy needed an escort to and from school.  These are the kinds of real impacts which offences of this kind are apt to have on those who are the targets.
9.	Whatever may have been the dispute between the offender and Clarke, and whatever may have been the faults of either or both of them, the victim of this offence was not Mr Clarke but his partner and children.  The impact of the offences can only have been reinforced by the fact that in the evening after it had taken place and, on the following day the offender used one of the stolen telephones to telephone the complainant's mother and made it clear that if he did not get to speak to Mr Clarke he would be back.  So although it is right to say that no physical violence was used directly on any of the occupants of the house and although it is right to say that there were no overt threats beyond what was implicit in what the robbers were doing, this was a noisy, violent and thoroughly threatening intrusion and the threat was reinforced by what the offender chose to say on the telephone in the aftermath.
10.	The offender is 23 years of age.  This was not his first conviction.  Leaving aside some earlier minor offences, on 19th November 2004 he was sentenced in the Crown Court for two offences of robbery.  They were group offences (as was this one), they were street robbery offences in fact committed on a bus ‑ on two occasions on the same day with three or four others in each case.  The offences had been committed on 5th May 2003.  It was not until November 2004, for some reason, that sentence was passed, but the total sentence was one of 21 months.  The offender was, as we understand it, released from that previous sentence in August 2005.  Between then and this offence (which was in October 2007) that is to say for a period of a little more than two years, he had not offended seriously ‑ there had been a caution for some kind of battery but that was all ‑ and it is right to say that he had, despite a rather mixed relationship with his family, got himself a series of proper jobs and had begun to demonstrate that he was capable of earning an honest living.  All that said, it follows that the court had to deal with a man whose first offence this was not and who had in his background a very relevant conviction for rather similar offences of robbery.
11.	This court has considered the appropriate general level of sentencing for robberies committed in the home in two cases in particular.  They are Attorney General's Reference Nos 38 to 40 of 2007 (Crummack) [2008] 1 Cr.App.R (S) 56 at 319 and Attorney General's Reference No 124 of 2008 (Doran) [2008] EWCA Crim. 2820.  It is not necessary to recite the analysis of which the genesis is to be found in Crummack and a briefer re‑statement in Doran.  Some sensible relationship needs to be had in relation to offences of this kind with the kind of street robbery or robbery of small business premises which are dealt with specifically by the Sentencing Council Guidelines, but even absent the kind of very serious robbery in one's own home with serious violence, which would attract sentences comfortably into double figures, those cases demonstrate that the intrusion into a complainant's home significantly raises the level of sentence beyond that of a street robbery, all other matters being equal.  In the present case there is the additional factor that the victim was known to be a woman and children and the offender had recruited intimidating assistance and had a previous conviction for robbery.
12.	The offender pleaded guilty but at a late stage.  The case was listed for trial.  His plea was entered on the first day of the trial.  We accept from Mr Khan that a few days beforehand when the case had been listed for pretrial review it had been possible for Mr Khan to give an indication to the Crown that a plea might be forthcoming and it may be that in consequence witnesses, particularly the (by then) 12‑year‑old, may not have had to come to court on the day of the trial.  It does not alter the fact of course that the child would have lived for some months with the expectation that he was going to have to and may have had to visit court on an earlier occasion to see the sort of place in which he would be expected to give evidence. In those circumstances limited reduction would be possible for the plea of guilty, but certainly nowhere near the kind of one‑third reduction which it is possible and right to give to those who frankly admit their guilt at an early stage and enable, amongst other things, the complainants to know that their evidence will not be contested.
13.	In all the circumstances, we have no doubt that the sentence passed of two years was not only lenient but was unduly lenient.  Had there been a trial this offence would, as it seems to us, have called for a sentence in the very general region of seven years.  Given the plea and the circumstances in which it was tendered, and making such limited allowance as it is right to make for the fact that the offender is being sentenced for a second time, we quash the sentence of two years' imprisonment and we substitute for it a sentence of five‑and‑a‑half years.  Time in custody of 161 days will count towards that sentence in the usual way.