Attorney General's Reference (Nos. 4 and 7 of 2002); R v Q; R v Lobban; R v Sawyer
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 29 January 2002 |
| Neutral Citation | [2002] EWCA Crim 127 |
| Court | Court of Appeal (Criminal Division) |
| Date | 29 January 2002 |
| Docket Number | No. 2002/01148/R2 & 2002/00295/R2 2002/00114/R2 & 2002/00295/R2 2001/04543/X3 |
[2002] EWCA Crim 127
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
The Lord Chief Justice of England and Wales
(The Lord Woolf of Barnes)
Mr Justice Aikens and
Mr Justice Pitchford
No. 2002/01148/R2 & 2002/00295/R2
2001/0543/X3
2002/00114/R2 & 2002/00295/R2
2001/04543/X3
Attorney General's Reference Nos. 4 & 7 of 2002
Under Section 36 Of
APPEARANCES:
MR O POWNALL appeared on behalf of the ATTORNEY GENERAL
MR M SMITH appeared on behalf of THE OFFENDER ADRIAN MICHAEL LOBBAN
MR M J DUDLEY appeared on behalf of THE OFFENDER CHRISTOPHER SAWYERS
MR M COLLINS appeared on behalf of THE APPLICANT STEVEN JAMES Q
Tuesday 29 January 2002
: These three applications were listed together. There are two applications by the Attorney General and one application by an offender who has been convicted who wishes to appeal against his conviction and sentence and whose application was refused. They all relate to robberies in public places and involve the theft of mobile telephones and small amounts of money. They are offences of a particularly worrying nature. They are worrying because of the effect which they have on the public, the effect which they have on the victims in particular, and on the fact that they undermine the criminal justice system. Frequently they involve offences against victims who are either young in age, as is the position with these three applications, or elderly people—people in both categories who are vulnerable because of their age.
In giving this judgment we are not seeking to set new guidelines. If we were intending to do so, we would have sought the advice of the Sentencing Advisory Panel before giving this judgment. Instead, we are seeking to draw together the principles which are already clearly established by the reported decisions of this court.Before coming to the facts of the individual applications, we wish to set out certain information which has been obtained by research conducted on behalf of the Home Office. It is published as Study 235, dated December 2001, entitled "Mobile Phone Theft". The research contains certain findings as to the level of mobile phone thefts and robberies and identifies a marked increase in the incidents of such offences. According to the research, the position today is that on average 70 per cent of United Kingdom adults own or use a mobile phone. Ownership among younger people is even higher. A source of information on which the study relied was that contained in the British Crime Survey which estimated that there are about 470,000 phone thefts against those aged 16 or over (including attempts) in the year 2000, originating from a number of different offences, including robbery. A school survey asked 15,000 11 to 15 year olds whether they had had a phone stolen in the last year. Grossed-up figures suggested that there were 550 phone thefts against this group between mid-2000 and mid-2001. Twelve per cent of those asked said that they had been victimised at least once. The risk of phone theft for those in the ages between 11 and 16 is five times higher than that for adults. The results show a substantial growth involving the theft of telephones. Figures from six police forces suggest that the number of recorded phone thefts has at least doubled between 1998/99 and 2000/01. There was an increase in the proportion of robberies involving telephones from about 8 per cent in 1998/99 (an estimated 5,500 phone robberies), to about 28 per cent in 2000/01 (an estimated 26,300 phone robberies). No doubt part of the increase was due to the greater phone ownership during that period.
The information available points in the direction of telephones having played a part in the rise in robberies. Those under 18 constitute nearly half (48 per cent) of all victims, with a peak age at 15 and 16.
Faced with that background the courts have no alternative but to adopt a robust sentencing policy towards those who commit these offences. Those who do so must understand that they will be punished severely. Custodial sentences will be the only option available to the courts when these offences are committed, unless there are exceptional circumstances. That will apply irrespective of the age of the offender and irrespective of whether the offender has previous convictions. However, both those factors are very important when a judge comes to decide on the length of sentence.
In his submissions on behalf of the Attorney General, Mr Pownall said that the bracket of sentencing which the authorities reveal for offenders of the sort we have been describing is 18 months to five years. We will look shortly at the some of the authorities to which we were referred. We agree with what Mr Pownall said, subject to this. If the offences are committed by an offender who has a number of previous convictions and if there is a substantial degree of violence, or if there is a particularly large number of offences committed, the five year upper limit may not be appropriate.
Mr Pownall also indicated that the authorities suggest that the upper limit is three years where no weapon is used. Again we agree, subject to the qualifications which we have already expressed in relation to the five year figure.
A factor which, in our judgment, is of importance is whether a team of offenders is involved. The fact that there are a number of offenders will make the offence more intimidating. From an examination of the authorities to which we were referred, we conclude that prior to 1995 they tend to indicate a level of sentencing which is not sufficiently severe. There has been an increase in the incidents of robbery of the sort to which we have referred. The need to deter those who commit offences of this nature has increased because of their prevalence.
Having said that, we urge the manufacturers and those who supply the means by which mobile telephones are used to make strenuous efforts to make the object of these offences more difficult to achieve. We recognise that efforts are already being made, but we hope that even greater efforts could be made which would reduce the attractiveness to dishonest people of offences of this nature.
In two of the cases which are before us the Attorney General applies under section 36 of the Criminal Justice Act 1988 for leave to refer the sentences to this court for review because he regards them as being unduly lenient. We grant leave. We propose to follow the usual practice of this court of taking into account that the sentence is being increased in determining the sentence the offenders are to serve. In other words, we propose to make an allowance for double jeopardy.
The first case to which it is necessary to make reference is the decision of his court in Attorney General's Reference No 6 of 1994 ( R v Christopher Lee) (1995) 16 Cr App R(S) 343. In that case a community service order had been imposed for robbery by demanding money from a youth in a street and threatening to use a knife. The sentence was varied to 18 months' imprisonment. The offender together with an accomplice approached an 18 year old youth who was waiting for a bus. They demanded money, threatened to use a knife and made him empty his pockets. The victim handed over his wallet containing about £19 in cash and his pay cheque for £90.50. The offender and his accomplice were arrested and thereafter sentenced to a community service order for 120 hours. The Attorney General asked the court to increase that sentence. The court looked at a number of previous decisions of this court and took them into account in deciding that the sentence was unduly lenient and had to be increased, as indicated, to eighteen months' imprisonment. Lord Taylor CJ indicated in the judgment of the court that offences of this kind required an element of deterrence in the sentence and that even a first offender must expect a period of custody for robbery of this kind in a public place. The decision makes it clear that a substantial period of custody was the norm. The sentencer had been influenced by the fact that the offender had played a lesser part in the offence than his co-defendant, and his good character. These factors did not in the view of the court justify a departure from the norm so striking as to justify a non-custodial sentence. It was because of this that the sentence was treated as unduly lenient.
The next case to which we refer is the decision of this court in Attorney General's Reference No 73 of 1999 ( R v Mark Charles) [2000] 2 Cr App R(S) 209. The court was presided over by Lord Bingham CJ. The offender, who was aged 23, pleaded guilty to robbery. He was one of a group of several young men who encountered two boys, one aged 16, shortly after midnight. The offender and two others approached the boys and demanded money from them. The offender searched the pockets of one of the boys and found a mobile telephone. The offender's accomplice attacked the boy and subsequently demanded a ring which was on his finger. The accomplice punched him several further times and he fell over a wall. The offender joined in in punching the victim and eventually the victim surrendered the ring and a pair of sunglasses. The offender and the accomplices were arrested shortly afterwards. The sentencer accepted that the accomplice, who was 16, was the main aggressor, although the offender had taken a full part in the robbery. The sentencer made a supervision order in respect of the accomplice on the grounds which were personal to him. In order to avoid a sense of injustice on the part of the offender, the sentencer...
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