In court
| Date | 01 December 2018 |
| DOI | 10.1177/0264550518805619 |
| Published date | 01 December 2018 |
| Subject Matter | In court |
In court
The Journal of Community and Criminal Justice
Probation Journal
In court
2018, Vol. 65(4) 459–478
ª The Author(s) 2018
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DOI: 10.1177/0264550518805619
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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
Escalating pattern of targeting shops: Deterrence necessary
Within a three-week period H., aged in his late 20 s and subject to post-custody
licence, sought to steal from shops, reacting aggressively when challenged by staff.
In the first instance he entered a store where he was well-known as a thief, having
been caught stealing there on the previous day, He became angry and abusive and
gripped a bottle of wine in a manner that suggested that he might use it as a
weapon, before walking out, having already bagged boxes of detergent. Eleven
days later he was seen in another supermarket stuffing steaks in his bag. When
asked to replace the meat he revealed an item in his pocket that staff believed to be
scissors. Thereafter video footage caught on a staff member’s phone showed him
behaving in a ‘thoroughly aggressive and unpleasant way’, trying to force his way
out of the store by pushing past staff before his bag was removed from him. Eight
days later he was challenged at a further supermarket from which he had been
banned, having been seen placing dog food in his bag. He revealed what
appeared to be the handle of a knife or a screwdriver in his trouser pocket,
saying ‘you know what’s going to happen if you stop me’ in an aggressive and
threatening way. Fearing that H. was prepared to use violence, the member of
staff had allowed him to leave and head off on his bicycle that he had left by the
door for a quick getaway.
An inveterate shoplifter with an ‘appalling’ record of theft for which he had
incurred numerous short sentences of imprisonment for shoplifting, H. had escalated
his offending to a different level by intimidating and threatening shop staff who
challenged him, so that he was now charged with attempted robbery and robbery
in respect of the second and third episodes. The first occasion had initially been
charged as robbery but the prosecution accepted his basis of plea that he did not
use the wine bottle in anger and accepted his admission of simple theft. As regards
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Probation Journal 65(4)
the later incidents, he disputed having scissors, screwdriver or knife, claiming that
the items in his pocket had been a pen and a mobile phone, though he acknowl-
edged that he had displayed part of these objects in a bid to intimidate staff and
cause them to believe that he might use unlawful violence. A PSR had not been
deemed necessary.
On H.’s appeal against a total sentence of four years’ imprisonment following
guilty pleas (comprising 16 months for the attempted robbery with 32 months
consecutive for the robbery and two months concurrent for the theft), the Court of
Appeal noted that the offending came within Category 3B of the guideline in
respect of robbery (2016), i.e. instances of medium culpability in respect of less
sophisticated commercial premises, thus providing a starting point in contested
cases of two years’ custody with a range between one and four years. It was argued
on H.’s behalf that the judge had been wrong (a) to increase sentence as much as he
did on account of H.’s previous convictions; (b) to find that the offences were at the
upper end of Category 3B, thus justifying a higher start point at three years; and (c)
to have insufficient regard to the principle of totality, the final sentence in aggregate
being neither just or proportionate.
The Appeal Court was not impressed, observing that all the previous convictions
for shoplifting were highly relevant, showing a pattern of offending over a period of
many years. Further, H. had previous convictions for robbery and attempted rob-
bery, for which he had been sentenced to 18 months’ detention at the age of 16,
and a much more recent offence of battery in 2017, for which he received four
weeks’ imprisonment. He had now taken his targeting of shops to a different level
and staff, simply doing their job, ‘are entitled to the protection of the court against
offending of this kind’. ‘An element of deterrence was properly to be included.’
It had to be brought home to [H.] just how serious his offending had become. Had he
gone into a corner shop and demanded that the staff hand over goods or money from
the till, with the threat of violence, using a weapon which was shown but not produced,
sentences of this level or more would certainly be expected. It should not make any
difference that the context of these offences was in the open area of a supermarket,
rather than the confines of a corner shop.
The total sentence had not been manifestly excessive but properly severe.
R v HAWKINS, [2018] 2 Cr App R(S) 11.
Avoiding mechanistic application of guidelines
Aged 19 and of previous good character, S. was asked by H. to purchase nitrous
oxide (commonly known as ‘laughing gas’, a euphoria-inducing unlawful sub-
stance) on his behalf from an address and was given £250 for that purpose. H. had
been in dispute with C., one of the two men living there, apparently arising from a
previous deal involving nitrous oxide. In the event, S. accompanied H. to the
address, waiting outside until H. returned and told him that the plan had been foiled
by a disagreement over money, prompting S. to punch C. C. reported this assault to
In court
461
the police but that evening was confronted by five young men in his hallway,
masked by balaclavas or hoods, three being armed with poles or pieces of wood.
He retreated, leaving his fellow occupant to face the intruders who demanded the
return of their money. Though this victim sought to explain that this issue was nothing
to do with him, he was struck on the legs, sustaining swelling and bruising. The
assailants then departed in a car driven by S.
In due course S. pleaded guilty to aggravated burglary on the basis of joint
enterprise and that he had had no personal prior quarrel with ether occupant of that
address and had not been armed. Since the offence he had moved to stay with a
relative in another area to remove himself from local peer associates and had also
sought to make a positive contribution in the community, included working with
disadvantaged children, as evidenced by numerous personal testimonials pre-
sented to the Crown Court. He had been open and honest with those employing him
about his predicament in facing prosecution. In light of the ‘very serious’ nature of
the crime and S.’s role in instigating and organising the attack, ‘returning mob-
handed’ after dark, the judge placed the offence within Category 1 (i.e. combining
greater harm and higher culpability of the relevant guideline (2011), indicating a
starting point of 10 years.
On S.’s appeal against sentence of six years YOI detention, the Court of Appeal
observed that on a strict mechanistic application of the guideline the case did fall to
be placed within Category 1. However:
a tariff is a tariff for the general and the sentencer is sentencing the particular individual
for the particular offence, which requires a close assessment and analysis of the culp-
ability and harm occasioned, against the personal mitigation available (which in this
instance was considerable) . . . Ultimately the sentencer . . . must ensure that a just and
proportionate sentence is imposed. . . . A strict mechanistic application of the guideline
would result, in the particular circumstances of this case, to a sentence duration which
would be contrary to the interests of justice.
Having regard to all the circumstances of the offence and the offender, including
the personal mitigation and the considerable delay that S. had experienced in the
sentencing process (sentencing having been postponed until after H.’s contested
trial, resulting in his acquittal, in the course of which C.’s credibility had been
‘severely called into question’), the term imposed had been manifestly excessive
and the Court substituted 40 months’ detention.
R v SURGENOR, [2018] 2 Cr App R(S) 9.
Correct application of discount for plea
Aged in his mid-20 s and with no other relevant convictions, H. had been a pas-
senger in a car that attracted police attention. He had tried to run away when the car
was stopped. On being detained he was in possession of two mobile telephones
that revealed text messages over a two-day period consistent with him dealing
cannabis, in the form of requests from would-be purchasers. When his home was
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Probation Journal 65(4)
searched, the police found a quite large amount of cocaine (8.73 g, with a purity of
4.9%) and cannabis. The prosecution subsequently accepted that the cocaine was
for his own use and that the dealing had been undertaken in respect of cannabis
only. The defence claimed that he had been selling cannabis to fund his addiction to
cocaine. He thus pleaded guilty (on the date set for trial) to being concerned in the
supply of cannabis and to possession of cocaine. Having considered a stand down
report from the probation service, the judge imposed 12 months’ imprisonment on
each count but ordered that the sentence be suspended for 12 months, imposing a
nine-month drug rehabilitation requirement and a 20-day rehabilitation activity
requirement. The judge purported to reflect credit for guilty plea by...
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