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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Bell, R. v [2018] EWCA Crim 1759 (22 May 2018) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2018/1759.html Cite as: [2018] EWCA Crim 1759

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IN THE COURT OF APPEAL
CRIMINAL DIVISION
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988

		Royal Courts of Justice Strand London, WC2A 2LL
		22 May 2018

LORD JUSTICE SIMON:

1. This is an application by the Attorney General to refer to this court a sentence passed on the offender, Alexander Bell at the Crown Court at Isleworth on 16 March 2018 under section 36 of the Criminal Justice Act 1988 as being unduly lenient. We grant leave.
2. The sentence was an overall term of 24 months' imprisonment suspended for 24 months with a number of requirements which affected the offender's liberty during the 24 months of suspension.
3. The judge had to sentence in respect of a number of offences committed over a period from 8 April to 24 July 2017. It is convenient to start with the offences which were committed to the Crown Court for sentence by the Magistrates' Court. The first of these offences was a charge of low level theft in which the value was under £200 committed on 8 April and was the subject of committal S20180074. The offender entered an HMV store in High Wycombe. A shop assistant saw him remove the security tag from a Stormzy CD and leave the store without paying for the item. The offender was detained by security staff and when his bag was emptied it contained a number of items including DVDs, Blu-rays and CDs from HMV worth £179.92 that he had not paid for. He was arrested and later bailed.
4. The next series of offences were the subject of committal S20180073. On 23 June 2017 the offender was detained outside Primark on the High Street in Uxbridge after being seen by staff to leave the store with DVDs he had not paid for. The police were called, they arrested the offender and searched his bag. They found stolen property from Primark, the Disney Store and HMV with a value of £156, £37.95 and £123.96 respectively, as well as surgical blades which the offender had carried to remove the packaging and security tags from the items he had stolen. This offending gave rise to a charge of possession of a bladed article in a public place (offence 1), three charges of low level theft (offences 2, 3 and 4) and a charge of going equipped for theft (offence 5). Following his arrest on 23 June the offender was again released on bail after being arrested and questioned.
5. On 3 July 2017 the offender went back to the High Street in Uxbridge and was seen this time on CCTV using a blade to remove packaging from £100-worth of DVDs. This offending gave rise to a number of charges before the magistrates: going equipped for theft (offence 6), having a bladed article in a public place (offence 7) and theft (offence 8). He was arrested and bailed yet again. The offender also committed further offences of theft and possessing a bladed article in a public place which were dealt with separately by a District Judge in the Magistrates' Court on 9 November 2017.
6. Despite being on three sets of bail, the offender went on to commit a serious street robbery the following day. The victim was a taxi driver, Mr Ravikumar. He had been a driver for 17 years. On 4 July he received a booking for a fare via his personal digital assistant (PDA). The booking had been made by the offender calling himself "Ben". At approximately 10.13 he collected the offender from the Shell garage on the Yeading Lane junction with the White Hart roundabout. The offender gave instructions to take him to Newport Road in Hayes but did not give him a specific door number. The offender sat in the front passenger seat of Mr Ravikumar's taxi and did not engage in any conversation for the entirety of the 10-minute journey to Hayes.
7. Having arrived at Newport Road, Mr Ravikumar stopped the car and the offender instructed him to go to the end of the road, claiming that he would be able to turn the taxi around there. Mr Ravikumar did not want to go to the end of the road because it was dark and he was by this stage suspicious, owing to the fact that there were no houses in Newport Road. Instead he managed to perform a U-turn before the end of the road. He told the offender that the fare was £5. The offender then raised his right hand which contained a red-handled multi-tool with the blade unfolded towards Mr Ravikumar's face, and said: "Give me all your money." The victim raised both of his hands and said to the offender: "Don't worry, I'll give you my money". He was extremely frightened and believed that the offender was going to stab him.
8. The offender then slashed the victim's left thumb with the blade. The offender grabbed the offender's right hand to avoid a further attack and a struggle ensued. The offender attempted to release himself from the victim's grasp and the victim then punched him in the face. The offender attempted to get into a position to stab Mr Ravikumar who punched the offender on the face again. The offender then got out of the car, ran around to the driver's door and opened it. Mr Ravikumar jumped out of the car before the offender could get to him. The offender then chased Mr Ravikumar with his right hand raised holding the blade. The victim was forced once again to punch the offender in self-defence and managed to disarm the offender of the blade. The offender then ran off towards the Uxbridge Road.
9. Mr Ravikumar followed the offender to the Wishing Well Public House on Uxbridge Road and flagged down a police car. The police officers bandaged his left thumb and he then made his way back to the taxi office. On his drive there he saw the offender sitting in the back of an ambulance. He called the police and identified the offender as his attacker.
10. Before being pointed out by the victim, the offender had himself approached police officers and told them that he had been walking up Uxbridge Road when three men had come out of Hayes Community Park, asked him for his phone and when he refused one of them cut him to the hand with a knife. The police officers attended to the offender's injuries and called an ambulance.
11. Having been identified by the victim, the offender was arrested at 11.24 in the back of the ambulance. He was taken first to Hillingdon Hospital for treatment and then into police custody where he was charged with attempted robbery (count 1) and having an offensive weapon (count 2). When questioned by the police in interview he gave no comment answers to the questions he was asked.
12. Mr Ravikumar made a victim personal statement:

This incident has left me very frightened and scared. I have to work very long hours as a taxi driver to support my family. During this incident I felt that this man was going to seriously harm me if I did not give him money. He had already put the red handled knife up to my neck and he told me to give him all my money. For a couple of days I could not sleep. This whole incident has left me very nervous and anxious. I was unable to work for a week and this has cost me £1,000 in lost earnings.

13. The offender had 10 convictions for 15 offences. These comprised 10 convictions for offences of theft (shoplifting) committed between January 2015 and January 2018, for which he was fined or made the subject of a conditional discharges, breaching four of those conditional discharges. He was also convicted of an offence of possession of a bladed article in a public place, contrary to section 139 of the Criminal Justice Act 1988 committed on 3 July for which he received a six-week sentence of imprisonment imposed on 9 November 2017. In respect of that offence, the offender entered JD Sports in Lombard Retail Park with a multi-tool and was challenged by the manager of the store who believed the offender was shoplifting. At a Newton hearing held in the Magistrates' Court, a district judge found that the offender had produced a knife and waved it about and was then disarmed by the manager. He then went on to make threats to the manager before being arrested.
14. The offender's social worker from the Independent Living Team provided a short report dated 15 December 2017 indicating that she had obtained funding for a supported living placement. She also indicated that the offender had volunteered to engage in placements coordinated by "Step Together". A pre-sentence report indicated that the offender was assessed as presenting a medium risk of both re-offending and causing serious harm to the general public and to himself. The author of the report was of the view that a custodial sentence would not address the issues which made the offender 'vulnerable to future offending', and expressed concerns regarding the offender's ability to cope in a custodial environment. He was assessed as suitable for a community order with a rehabilitative activity requirement.
15. There were two psychiatric reports provided by Dr Michael Alcock. The offender self-reported that he had been on suicide watch while remanded in custody at HMP Wormwood Scrubs. In the writer of the report's view, the offender was fit to plead but required an intermediary, owing to diagnoses of borderline learning disability and autistic spectrum disorder, although neither disorder was at the severe end of the scale. The offender was assessed as having an IQ of 71. In Dr Alcock's view the offender was more prone to manipulation and coercion by unscrupulous individuals than someone who did not suffer from these conditions. In his risk assessment, Dr Alcock concluded that the offender's use of violence during the commission of the offences was out of character and not an overriding concern or risk for future violent offending. Moreover, he took the view that whilst the offender might commit minor acts of deliberate self-harm, he did not present a high risk of suicide. Finally, Dr Alcock concluded that the offender's low IQ was not such that he lacked the capacity to learn from his previous behaviour. Mr Schofield, who appears for the Attorney General, points out that Dr Alcock seems to have been unaware of the incident on 3 July which led to the sentence of imprisonment of six weeks.
16. It is convenient at this point to turn briefly to the procedural history and then to the sentencing hearing. On 23 October 2017, at an adjourned pretrial preparation hearing, having been assessed as fit to plead, the offender was arraigned and entered pleas of not guilty to both counts. On 8 November he served a defence statement claiming that he had committed the offences charged on the indictment under duress. On 4 December he appeared before the Crown Court and asked to be re-arraigned. He then entered guilty pleas and submitted a basis of plea:

I do still maintain that I had been threatened by another person called Bilal to carry out this offence ie rob the cab driver, and although I believed Bilal was following me -- I still went ahead and got in the cab, and carried out the attempted robbery -- and when stopped by the police I did not tell them what had really happened, and am unable to prove that I was in fear of imminent physical danger. I do have a number of issues as set out in my psychiatric report and that is why I believe I acted as I did -- because I was vulnerable and easily coerced into committing these offences. I accept that I had the knife and in the scuffle both the cab driver and I were injured.

17. The prosecution indicated to the court that the assertion made by the offender that he had been coerced into committing the offence was not accepted and invited the court to have the assertion tested in cross-examination. The judge indicated that "I do not really see it has a great deal of impact on the offence that I am sentencing" but stated he would take the basis of plea into account when sentencing. We will come later in this judgment to the way in which he did that.
18. The case was adjourned for sentence and the judge reserved sentencing to himself.
19. On 31 January 2018 the offender pleaded guilty before the magistrates to the nine offences committed between 8 April and 3 July 2017 when he was committed for sentence. The sentencing hearing took place on 16 March.
20. The prosecution submitted that the offence under count 1 fell within Category 2 of harm and Category A of culpability, as set out in the Sentencing Council Definitive Guidelines on Robbery. Category 2A offending indicated a starting point of five years and a range of four to eight years. That was not seriously in issue before the judge. However, the defence relied on the offender's mental health issues and his learning difficulties, together with the circumstances which it accepted fell short of a defence of duress. There was, it was submitted, a realistic prospect of rehabilitation and an immediate sentence of imprisonment would impact particular adversely on the offender. He claimed to have been offered employment in a café and had been in custody since 6 July 2017, albeit during part of that period he had been serving a sentence for theft and possession of a bladed article for which he had been sentenced, as we have indicated, on 9 November to a term of six weeks' imprisonment.
21. In passing sentence, the judge said that although he took into account the offender's basis of plea and recognised his learning and other difficulties, "There are no excuses if you rob someone with a knife." The judge also took into account that he had served the equivalent of nearly 17 months in prison. He added:

... it is only the fact that you have already served the equivalent of a 16 month prison sentence, almost 17 months in fact because you spent over eight months in prison, together with my, I hope, enlightened approach to your particular conditions which is keeping you out of prison today.

22. The judge indicated that the index offences fell into Category 2A in the guidelines which carried a starting point sentence of five years, with a range of four to eight years. He continued:

I have given you a full discount for your plea of guilt but applying it to suspend the sentences in the circumstances rather than in any other respect...

23. He then passed the sentences to which we have referred, a concurrent term of imprisonment as follows: count 1, attempted robbery, 24 months' imprisonment suspended for 24 months; count 2, having an offensive weapon in a public place, six months' imprisonment suspended for 24 months, and on each of the offences sent by the magistrates, offence 1 on Committal Schedule 20180074, and offences 1 to 8 on Committal Schedule 20180073, four months' imprisonment suspended for 24 months concurrent. The total was therefore a term of 24 months' imprisonment suspended for 24 months.
24. As part of the suspended sentence order, the offender was required to comply with a rehabilitation requirement for 30 days and was made subject to an electronically monitored curfew for six months. He was also ordered to pay £50 compensation to Mr Ravikumar and pay the statutory charge. The bladed article, which was the subject of count 2, was ordered to be destroyed.
25. For the Attorney General, Mr Schofield has made a number of points, the first of which is that the offence of attempted robbery fell within Category 2A of the robbery guidelines, it was high culpability Category A because a bladed article was used to threaten and then inflict violence. It was intermediary Category 2 harm because it did not result in either serious physical or psychological harm (Category 1) nor did the offence result in no or minimal physical or psychological harm (Category 3). The starting point was therefore a term of five years with a range of four to eight years. He draws attention in addition to a number of aggravating factors. First, the previous relevant convictions. The offender had an established history of shoplifting and had previously carried a blade during the commission of a shoplifting offence. Second, the offences were committed whilst the offender was on police bail. There was the aggravating factor of the timing and location of the offence. The offence happened at night in a secluded location and there was established evidence of wider impact in the sense that it was well known that there is knife crime as a significant problem in London. The Attorney General acknowledges that there were mitigating factors identified in the guideline which applied, particularly the mental disorder or learning disability where not linked to the commission of the offence.
26. Mr Schofield referred to the guidelines on totality and the guidelines on the imposition of community and custodial sentences. He also referred to the guideline on reduction of sentence for a guilty plea and in particular the passage which sets out that the maximum reduction at the first stage of proceedings in court is 25 per cent, with a reduced credit of a maximum of 10 per cent on the first day of trial. He acknowledged that a reduction in sentence for a guilty plea can be recognised, for example by reducing a custodial term. He also drew attention to paragraph F1 of the guideline which refers to circumstances in which the reduction for guilty plea can be adjusted in circumstances where an offender is rendered unable to address the criminality that he faces due to his mental condition.
27. In conclusion, the submission on the Attorney General's behalf is that the imposition of a sentence of 24 months' imprisonment suspended for 24 months with the rehabilitation activity requirement and electronically monitored curfew was unduly lenient. It failed adequately to reflect the seriousness of the offences and the aggravating factors, namely the use of a knife to cause injury, a previous conviction for carrying a blade in the context of repeat offending and poor compliance with previous court orders. Full credit for the guilty pleas was not justified given the fact that the offender had pleaded not guilty and submitted a defence statement before eventually pleading guilty, and overall did not reflect the totality of the offender's criminality.
28. For the offender, Miss Silvio accepted that the offender pleaded guilty to both counts on the day of the trial, 4 December. She pointed out that the offender presented with symptoms of a number of mental health issues and learning difficulties and that he would be vulnerable to unscrupulous individuals seeking to manipulate him into committing the offences. The plea was entered on the basis that he had indeed been threatened and manipulated into committing the attempted robbery. She drew attention to the well-known case of Attorney General's Reference No 4 of 1989 [1989] 11 Cr.App.R (S) 517, and submitted on the basis of that case that a wholly exceptional course for a particular type of case is not necessarily unduly lenient. Furthermore, there were, she submits, a number of factors which justified suspending a custodial sentence. First, a realistic prospect of rehabilitation as described in the offender's social worker report and the most recent report made available to this court. This set out that since the sentence the offender had attended all his probation appointments and there had been no breaches of curfew. He had moved into supported accommodation straight after sentence and now received daily support from his care support worker. This sentence plan was focused upon supporting him and finding employment, to put some structure to his days, supporting him with engaging in training to improve his reading and writing skills, doing some work on thinking skills, lifestyle and associates. It referred to his diagnosis of autism and his learning difficulties, although progress on addressing his offending behaviour has been "perhaps a little slow". However, he has started doing voluntary work once a week in a café and will be enrolled at the local college in September 2018 to improve his reading and writing skills, and starting an animal welfare course in the autumn of 2018. The report concludes on this aspect:

The offender has demonstrated genuine remorse for his actions and is able to understand that the victim could have been seriously hurt. He also recognises the impact of his action on the victim in terms of physical, financial and psychological harm.

29. All that, Miss Silvio submits, is to his credit, as it plainly is.
30. Secondly she relies on the strong personal mitigation supported by the expert views of Dr Alcock which were fully consistent with the supplementary report; and thirdly, the harmful impact of a further immediate custodial sentence on the offender. She also drew attention to the importance of rehabilitation, the progress that he has made since the imposition of the suspended sentence, which has brought routine to his life and the prospect of a resolution of some of his mental health issues. Finally, she submitted that this reference does not fall into the category of exceptional cases in which leave should be granted to refer sentences: see Attorney General's Reference No 5 of 1989 [1989] 11 Cr.App.R (S) 489 at 491.
31. We have considered these submissions. We should say at once that the sentencing judge took considerable care to ensure that he had as much information as possible about the offender: two reports from Dr Alcock in addition to the pre-sentence report and the other information. In our view this offending very plainly fell within Category 2A of the guidelines for robbery. It was high culpability in view of the use of the weapon and it was intermediate harm. We bear in mind that the offence was not completed but the seriousness of the offence is nevertheless properly categorised as being Category 2A. It was the victim's stout-hearted refusal to hand over his money that prevented the offence being the completed offence. The guideline for Category 2A robbery indicates a starting point of five years and a range of four to eight years.
32. There were plainly aggravating circumstances. The offender was on three sets of police bail at the time he committed the attempted robbery and had been found in possession of an offensive weapon only the day before and had been arrested. Furthermore, two of the sets of prior offending for which he was on bail, the offences committed on 23 June and 3 July involved the possession of a bladed article. In our view the judge did not factor in the offences committed for sentence particularly with a view to those points.
33. In addition, and materially, the victim was a taxi driver providing a public service. The offence occurred at night in a deserted street and must in that sense have been planned. To the extent that there was coercion it did not justify the offender getting out of the car and pursuing the victim in the way he did.
34. Against that were two matters of mitigation. First, his mental vulnerability which would affect his culpability, as well as affecting the impact of the sentence of imprisonment that he would serve. Secondly, the prospect for rehabilitation. The more difficult aspect of the sentencing exercise was the offender's assertion of coercion, what the judge described as "the shadow of some sort of coercion" which he said he could "take into account in some shadowy sort of way." We have already addressed the extent to which coercion would have justified this offence.
35. Finally, we recognise that the judge was bound to take into account the sentence of six weeks' imprisonment imposed on 9 November in respect of the further theft and the offensive weapon offence committed on 3 July.
36. Taking into account all these matters, in our judgment the proper starting point for this offence, which reflected its seriousness in terms of harm and culpability, was a term of not less than four years. With credit for plea and sentence that he has served already, this term could properly have been reduced to a term of three years' immediate custody. In our view a sentence of two years was unduly lenient. It was "outside the range of sentences which the judge, applying his mind to these factors, could reasonably consider appropriate." We recognise that the offender has complied with the conditions of his sentence since March 16 and we take that into account.
37. Accordingly, having granted leave, we quash the sentence on count 1 and substitute a sentence of 2 years and 10 months. The other sentences will remain unaffected.