R v Oosthuizen (Lee)
| Jurisdiction | England & Wales |
| Judge | THE VICE PRESIDENT |
| Judgment Date | 13 July 2005 |
| Neutral Citation | [2005] EWCA Crim 1978 |
| Court | Court of Appeal (Criminal Division) |
| Date | 13 July 2005 |
| Docket Number | No: 200502637/A8 |
[2005] EWCA Crim 1978
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
The Vice President
(Lord Justice Rose)
Mr Justice Holland
Mr Justice Crane
No: 200502637/A8
MR R HALLOWES appeared on behalf of the APPLICANT
On 14th April 2005 at Guildford Crown Court, this applicant pleaded guilty to robbery and on 6th May he was sentenced by His Honour Judge Bull QC to 2 years' detention in a young offender institution. Two other offences, one of stealing a mobile telephone from a friend and the other of obtaining property by deception, that is goods from his former employer, using a stolen credit card, were taken into consideration. His application for leave to appeal against sentence was referred to the Full Court by the Registrar.
We say at once that, having regard to the judge's expressed wish that time spent in custody, which we are told but the judge was not was 28 days, should count towards his sentence, we grant the applicant leave to appeal. The position now, by virtue of section 240 of the Criminal Justice Act 2003, that unless express allowance is made in relation to sentence for an offence committed on or after 4th April 2005, time spent in custody does not count.
The circumstances of the robbery offence were that, on 8th April 2005, a middle aged lady was walking up Castle Street, Guildford towards the entrance of a shopping centre car park at about 1.30 in the afternoon. Just before she reached the entrance to the car park, she passed the appellant who was leaning against a wall. As she passed, he made a grab for her handbag, which was hanging over her left forearm. She tried to stop him taking it. There was a struggle. The appellant eventually pulled the bag away and ran down Castle Street. She gave chase. She shouted for someone to stop the appellant. As it happens, there was an off-duty police officer nearby who heard her cries. He stopped and later arrested the appellant.
When he was interviewed, the appellant made a full admission of the offence. He said he had been short of money following suspension from his employment. He believed he had been suspended on full pay but discovered that, in fact, his account was overdrawn. He was concerned about the rent and also, that night, he was going out with friends. He had no money for these purposes so he decided to do something about it. He decided that he would seize a lady's handbag and, in consequence, he spent some time at the place where he ultimately committed the robbery, "summoning up courage" as he said.
He admitted in interview the two offences to which we have referred and which the learned judge expressly took into consideration.
The judge, in passing sentence, said that credit would be given for the appellant's guilty plea, which was at the preliminary hearing. But, he said, the appellant had been caught red-handed. In that regard, he referred to a judgment of a differently constituted division of this Court, given, in R v Greenland, by Roderick Evans J on 28th June 2002 [2002] EWCA Crim 1748. In paragraph 8 of that judgment, appears this:
"…he is not entitled to the full credit that he would have had had the evidence against him not been so overwhelming and had he not been caught redhanded."
As will emerge, that is an observation which no longer has the authority that it once had.
The judge in his sentencing remarks took into account the fact that the appellant had not sought to minimise his culpability and had fully admitted his responsibility. The level of violence was low and the appellant had not previously experienced custody. On the other hand, the judge pointed out that the robbery was premeditated, to the extent that the appellant, in the context which we have described, waited for about one-and-a-half hours, watching women walking past, until he felt he was able to commit the offence.
The learned judge also referred to the judgment of another differently constituted division of this Court in R v Akuany (24th January 2003) [2003] EWCA Crim 156, on which, in his submissions to us, Mr Hallowes, on behalf of the appellant, places some reliance. The judge also referred to R v Howe & Graham [2001] 2 Cr App R(S) 108 and R v Thomas 15 Cr App R(S) 848, in relation to which, Mr Hallowes submits that they are not to be regarded as any longer persuasive, in view of this Court's decision in Attorney-General's Reference No 4 and 7 of 2002 ( R v Lobban & Ors) [2002] 2 Cr App R(S) 345.
The judge went on to observe that robbery of handbags from women on the streets of Guildford was prevalent and was becoming increasingly so. Women in Guildford were entitled to feel safe on the streets in broad daylight, and it was necessary to include a deterrent element in the sentence passed. The judge went on to conclude that the offence was so serious that custody was called for and the appellant's existing community orders were revoked.
On the appellant's behalf, Mr Hallowes advances a number of grounds of appeal. First, he submits that, in the light of Lobban, the judge in taking, as he must have done, a period of 3 years as his starting point, took too high a starting point. The judge, in identifying this victim as vulnerable, was only justified in that conclusion by virtue of the fact that this was a woman on her own with a handbag, plus the fact of premeditation. She was, as the judge described her, a plucky woman. That is so. But, in our judgment, that is not inconsistent with her also having been vulnerable. But the essence of Mr Hallowes' submission on this aspect is that the judge's starting point was too high. He referred to paragraph 6 in the judgment of Lord Woolf in Lobban, where the Court accepted prosecuting counsel's submission that the upper limit where no weapon is used, in relation to street robbery of this kind, is 3 years.
Mr Hallowes stresses that, in the present case, the offence was committed not in the hours of darkness but in broad daylight. It was not in an unfrequented place on the contrary was in the busy, well populated and frequented centre of Guildford. On the other hand, of course, as is apparent from what we have said, this offence was premeditated and planned in the sense that the appellant had decided well in advance of this offence what he was going to do.
As it seems to us, although Mr Hollowes relies, as we have said, on Akuany, where the sentence of one of the appellants was reduced by this Court from 4 years to 2, and the sentence on another was reduced from three-and-a-half years to 18 months, there were respects in which the offence there under consideration differed from the present case. We are not persuaded, however, that, on the basis of that authority, a starting point of 3 years could be regarded as being too high for this appellant, bearing in mind that the judge was sentencing not just for the offence of robbery, but was also taking into account the two rather unpleasant offences which the appellant asked to have taken into consideration.
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