In court
| Date | 01 September 2016 |
| Published date | 01 September 2016 |
| DOI | 10.1177/0264550516669387 |
| Subject Matter | In court |
In court
The Journal of Community and Criminal Justice
Probation Journal
In court
2016, Vol. 63(3) 382–399
ª The Author(s) 2016
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DOI: 10.1177/0264550516669387
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Nigel Stone, Visiting Fellow in the School of Psychology, University of East Anglia,
reviews recent appeal judgments and other judicial developments that inform sen-
tencing and early release.
General sentencing issues
Despicable robbery: ‘Dangerous’?
Aged 50, N. had become friendly with a woman aged 63, widowed and on med-
ication for schizophrenia and bipolar disorders, but her mental health problems did
not affect her day-to-day living. When he needed somewhere to stay she offered him
her bedroom as she preferred to sleep on a sofa in the living room. She was aware
that he had drug dependency problems and would smoke cannabis and take cocaine
in the bedroom. When he told her that he owed £200 to some people, intimating that
he would be hurt if he did not pay them back, she gave him £200 to help him out. Late
at night on the same date, after he had been out drinking, she was woken up being
smothered by a towel and felt pinned down. She could hear N.’s voice saying things
along the lines of ‘Don’t hurt her’, pretending that there were other people present.
When she told him that she could not breathe he loosened the towel over her head.
Realizing that he wanted money, she reached into her underwear and took £7 and
her bank card from her money bag, throwing those on the floor. When he asked for
her PIN number she told him and he left, subsequently withdrawing £130.
After she had contacted the police N. attended the police station voluntarily and
stated in interview that he had been under duress by a third party who told him to get
more money from the victim. She had sustained serious psychological harm. He had
12 previous convictions for 19 offences, including four offences of non-residential
burglary and convictions in 2003 and 2004 for robbery. More recently he had a
caution for ABH. Fol owing his guilty plea to robbery he incurred an extended
determinate sentence totalling 14 years, combining a custodial term of 10 years and
an extended licence period of four years. The Crown Court judge had concluded that
N. was dangerous and, in particular, posed a danger to vulnerable women.
On N.’s appeal against sentence it was argued on his behalf that although this was
a ‘despicable’ crime the sentencing judge had erred in finding him dangerous and had
adopted too high a starting point so that the custodial term had been unjust and
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manifestly excessive. Dealing first with the dangerousness point, the Court of Appeal
identified three reasons why the Crown Court had concluded that the public protection
provisions applied to N. First, the nature and circumstance of the attack in question was
troubling. He had no reason to attack his victim in that terrifying way. He had asked her
for money before and, on past experience, she would simply have handed some to
him. The attack had come out of the blue and the case required very close care.
Second, a risk assessment in 2004 following N.’s second robbery conviction
had considered him a significant risk of serious harm to the public, but particularly to
vulnerable females. However, that assessment had been revised downwards from a
high risk to a medium risk after N. had completed his licence period for his 2004
offence. Third, the current PSR had identified N. to be dangerous. Counsel for N.
suggested that the judge and the PSR writer had been wrong in giving weight to N.’s
two prior convictions for robbery in 2003 and 2004, given that revised assessment
and his subsequent avoidance of serious offending for the past decade.
The Court of Appeal considered that ‘the judge’s rationale in finding danger-
ousness cannot be faulted’. One of the earlier robberies had involved a bag snatch,
the victim being a vulnerable, elderly, disabled woman, though the sentencing
judge dealing with that crime had stated explicitly that neither robbery had involved
the deliberate targeting of vulnerable women. Nevertheless, the overall finding of
the author of the PSR and her professional opinion, based on her OASys assess-
ment, were clear, namely that N. posed a high risk of serious harm to the public:
‘We reject [counsel’s] attempt to undermine the PSR generally and its findings that
N. had reverted back to high risk. The circumstances of the current offence, in our
view, are also a potent factor which the judge was entitled to take fully into account.’
Reliance on the length of time between 2003 and 2004 since N.’s last significant
offending failed to heed the ABH caution in 2010. Further, counsel’s claim that N.’s
behaviour in his current offence seemed to have been induced by drugs was a further
double-edged sword. N.’s ‘very unpredictability . . . and his wil ingness to resort to
violence after long periods of quiescence . . . makes him potentially dangerous’.
As regards the length of the custodial term, the Appeal Court noted that the rel-
evant Sentencing Guideline does not lay down specific guidelines for violent per-
sonal robberies in the home, but simply refers to the Court of Appeal guidance. The
Court reiterated that ‘judges must in this field be left to assess each case individu-
ally’. In this instance the aggravating features were, principally: (i) the breach of
trust, given that N. had been taken in to the victim’s home and helped by her; (ii) the
despicable attack on this vulnerable, elderly, single woman with mental health
issues in her bed at night while she was asleep; (iii) it was an extremely frightening
attack – N. had attempted to suffocate the victim while pretending others were
present, an experience having a lasting effect on her. Taking all the matters into
account, in the Court’s view the correct starting point for the determinate element of
this sentence would have been ten years, which, after full credit for early plea of
guilty, equates to a determinate sentence of six years and eight months, which the
Court substituted, leaving the extended sentence otherwise upheld.
R v NEVILLE [2016] 1 Cr App R(S) 38.
384
Probation Journal 63(3)
Third domestic burglary: Mandatory minimum?
Having incurred a community order (for s39 assault of a woman) with an unpaid
work requirement, within four months F. burgled a fellow resident’s bedsit at the
supported accommodation where he was living, stealing an X-box console. The
victim had left his door unlocked because he had lost his key and F. had been
identified easily as the intruder on CCTV evidence. In interview F. claimed that he
had removed the X-box to stop it being stolen, but he had made two unsuccessful
attempts to sell it. His partner subsequently returned it to the victim’s room. Aged 44,
F. had an extensive criminal record (42 previous convictions for 93 offences)
involving numerous instances of theft and other acquisitive property crime, including
two previous domestic burglaries, in 2004 (15 months’ imprisonment) and 2006
(27 months). Additionally, his record indicated many failures to heed or comply
with court orders. Because he had those two prior convictions for residential bur-
glary he was liable to receive a minimum sentence of three years imprisonment
(PCC(S)A 2000 s111), a mandatory outcome unless the court is satisfied that it
would be unjust to do so. The Crown Court judge indicated that though he had the
power to reduce the three-year period by a small amount because of F.’s guilty plea
he was not prepared to do that in the circumstances, deeming three years a perfectly
appropriate sentence.
On F.’s appeal against sentence the Court of Appeal concluded that although he
had a poor criminal record, the circumstances of the offence were such that it would
be unjust to impose the minimum sentence required by statute. The two previous
domestic burglaries were respectively 11 and nine years prior to the current offence
and the nature of the offence ‘was not the most severe of this sort’. On its merits the
burglary deserved a term of 27 months, reduced to 18 months to reflect timely plea.
R v FLETCHER [2016] 1 Cr App R(S) 28.
Suspended sentence order: ‘Half-hearted’ engagement
On conviction of ABH assault and possession of an offensive weapon R. incurred six
months’ imprisonment suspended for 12 months, with supervision and 120 hours
unpaid work requirements. In the first three months of the SSO he failed to attend for
work without reasonable excuse on one occasion, attracting a final warning, and
then a supervision appointment. He had been late for several appointments and had
re-arranged others. There had been further absences since breach action had
commenced for which his explanations had not yet been investigated. The breach
report described R.’s engagement as ‘sporadic’ and ‘half-hearted’, evidencing
fluctuating motivation. Though he ‘presented as positive and polite and had not re-
offended’, he failed to appreciate the seriousness of the order. Despite this the
Probation Service advised that R. ‘can continue to be managed in the community’
and proposed that that the SSO should be allowed to continue, breach being
marked by imposition of additional unpaid work hours. By the date of the hearing R.
had completed 36 hours (having completed a further 14 hours since breach pro-
ceedings had been initiated). The Crown Court judge activated the suspended
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385
sentence, imposing a term of 22 weeks’ imprisonment, reduced from the original
six-month term to...
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