Attorney-General's Reference No 10 & 11 of 2009 [2009] EWCA Crim 1636 (1 July 2009)

Neutral Citation Number: [2009] EWCA Crim 1636 No: 2009/0732/A5 & 2009/0734/A5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 1 July 2009 B e f o r e : LADY JUSTICE HALLETT DBE MR JUSTICE JACK MR JUSTICE BLAKE ____________________ REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL'S REFERENCE NO 10 & 11 OF 2009 ____________________ Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) ____________________ Mr C Tehrani appeared on behalf of the Attorney General Mr J Lucas appeared on behalf of the Offender Rooney Mr R Keene appeared on behalf of the Offender O'Connor ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © LADY JUSTICE HALLETT: The offenders have been convicted of a conspiracy to rob. More precisely they have been convicted of a conspiracy to prey on the elderly in their own homes, using force where necessary to extract their cash and valuables. The reason for the conspiracy was to fund drug addiction. It is important to note the detail of the overt acts of the conspiracy so as to understand the extent of the criminality. On two days in the summer of 2007 the following offences were committed. On 13th June 2007 there were two offences of robbery. The first was at the home of a Mr Wellings, who was aged 73. He was at home in Chesham. At about 6.15 in the evening he disturbed three men who had entered his home. The first intruder said: "Give us what we want." The second intruder pushed past him, prompting the first to say: "Don't annoy him, he's on drugs and he'll kill you. Give him what he wants." Mr Wellings was very frightened. The first intruder was armed with a metal implement which he raised to threaten Mr Wellings. Mr Wellings was then kept in the kitchen with one of the intruders while the other two searched his home. A cordless telephone was removed from his pocket. A blank firing revolver was stolen. The incident, which lasted 10 to 15 minutes, left Mr Wellings extremely shaken by his experience. Not long afterwards the home of a Mr and Mrs Pearson, both aged 82, was targeted. Mr Pearson is disabled. At about 6.45 pm, Mrs Pearson saw three men in her garden. They entered her home. One of the intruders pushed Mrs Pearson to the ground and said: "Stay down if you don't want your husband to get hurt." He then made a similar threat to Mr Pearson regarding Mrs Pearson. As Mrs Pearson tried to get up she was pushed down to the ground repeatedly. The intruder said: "I'm sorry. Just stay still and we'll be gone shortly. I don't want to do this but they'll hurt me if I don't." He added: "We're on drugs. We've got to do this for the drugs." This intruder then threatened Mr Pearson with a screwdriver and hit Mr Pearson on the knuckle of his left hand with the screwdriver causing a nasty swelling to his hand. One of the intruders was also armed with a jemmy. The intruders conducted an untidy search of the house. The telephone was unplugged from its wall socket. They stole a bankbook, a watch, about £150 in cash and other financial documents. Mr and Mrs Pearson described all three robbers as wearing distinctive gloves. Their ordeal lasted 20 minutes or so. Mrs Pearson was very shaken by her experience and feared for her husband's safety. She now feels insecure even in her own home. Mr Pearson felt scared at the time and he too feels insecure in his own home. The second batch of offences occurred about three weeks later. The first and second offenders and a third unknown person used a Jaguar car which had been stolen during a burglary on the night of 27th/28th June 2007. They drove through Essex and Suffolk in the Jaguar, which bore false number plates, looking for vulnerable elderly victims. On 5th July 2007 they entered the homes of six elderly people, one after the other. Edna Driscoll was aged 82. At 3 o'clock in the afternoon three men entered her home in Brentwood on the pretext of needing to check the water supply. Once inside, they went through her handbag. She described their attitude as a little aggressive. She felt unwell and she was led by the intruders to her sitting room where she was allowed to sit down. They conducted an untidy search of the premises and stole about £40 cash. They too wore distinctive gloves. The incident lasted 10 minutes. The Jaguar was captured on CCTV footage and was seen near Mrs Driscoll's home at the relevant time. The plucky Mrs Driscoll has not allowed this incident to affect her and she has been able to get on with her life. Myrtle Knight is aged 86. She has had a stroke and is not very mobile. She too lives in Brentwood. About 3.50 pm on the same day three intruders knocked on her front door. Again they made some pretext of looking under the floorboards for the water taps. One of the intruders kept her distracted in her sitting room while the others conducted an untidy search of her home. They took £20 cash from her handbag. Mrs Knight described the intruders as being polite and she did not feel the incident was going to affect her permanently. Margery Wakeling was aged 88. She lives in Chelmsford. Some time before 3.45 pm three intruders entered her home. She confronted them. One of them, wearing distinctive gloves, pushed her backwards and covered her mouth with a hand. The intruders threatened to harm her if she did not stay quiet and she was locked in a bedroom with two of the intruders. They commanded her to reveal where her money was. Her house was ransacked with carpets ripped and several floorboards pulled up. Her ordeal lasted 30 minutes; £100 cash was stolen. Again the Jaguar was seen in the vicinity of the address at the right time. Mrs Wakeling, having suffered far more than Mrs Knight and Mrs Driscoll, was extremely scared and upset by her experience and remains concerned that the offenders may return. Gladys Sayers was even older. She was aged 95. She lived in a flat in Chelmsford. At 5.20 pm a man tricked his way into her flat by pretending to be there to investigate a sudden water leak. She spotted a second intruder and had the courage to challenge him. The two men then ran away, having stolen £150 cash. Fortunately Mrs Sayers was not badly affected by the incident. Arthur and Doris Jones were aged 85 and 81 respectively. They live in Colchester. At about 5.30 to 5.45 pm three intruders gained access to their home by pretending there was a plumbing problem. The Jones became suspicious. Mrs Jones tried to telephone for help, but the telephone was grabbed from her and disconnected from its socket. One of the intruders restrained Mr Jones, meanwhile, saying: "Think about your wife. You don't want her to get hurt." The intruder picked up a walking stick as he said this. The three men again wore distinctive gloves. They ransacked two of the bedrooms, searched the living room and stole £270 cash, a wallet and bank and other cards. This incident lasted between 10 and 20 minutes. Again the Jaguar was seen in the vicinity. Again fortunately Mr and Mrs Jones say they have been able to get on with their lives since the incident. Gwendolyn Thomas was aged 85. She lives in Sproughton. Shortly after 6 pm three intruders got into her home. One of them told her she had a problem at the back of the house. She refused the man entry but he pushed his way into her house, knocking her to the ground. Two other intruders entered her home. She got up but she was grabbed by one of the intruders who pushed her against a wall. In so doing he badly bruised her arms. She told him she was going to faint, whereupon he released her. She remained in the bedroom with this intruder for about 15 minutes. The intruders ransacked her house, stealing £400 cash, a wallet and a chequebook in the process. Again the Jaguar car was seen in the vicinity. Not surprisingly, given the level of violence used upon her, Mrs Thomas was badly affected by this experience. Unbeknown to the three offenders the tracking device of the Jaguar had been activated. At about 11 am on 6th July 2007, after a short chase, the police stopped it in Coventry. The first offender, Rooney, was driving the car. The second offender O'Connor and another male fled from the car. O'Connor was caught shortly afterwards. All three men in the car were wearing the distinctive gloves as described by the victims of the robberies/distraction burglaries. The police found a screwdriver and a crowbar in the car. The screwdriver looked similar to the one used in the robberies on 13th June 2007. The tracking device of the Jaguar and other evidence established that the offenders had been driving around on 6th July looking for more victims. Both the first and second offenders were interviewed and refused to answer questions. They provided prepared statements in which they denied any involvement in the conspiracy and claimed they had only been in the Jaguar on the day of their arrest. Both the offenders appeared at the Crown Court in April 2008. They appeared again in July 2008 at the plea and case management hearing, they both pleased not guilty to the charge of conspiracy to rob. The particulars of the conspiracy were that the offenders and others on 13th June 2007 and 5th July 2007 committed a series of robberies of elderly people in their homes. We are told by Mr Keene, who represented the second offender O'Connor at that time, that he indicated to the Crown that his lay client would plead guilty to involvement in the conspiracy on the basis that he was involved on July 5th only. At that stage the Crown did not wish to accept his plea. The matter was therefore put off for trial. However, negotiations continued and on 6th October 2008, O'Connor was re-arraigned and pleaded guilty to the conspiracy charge on the basis he had been involved only on 5th July. He also included in his basis of plea, the assertion, which was accepted by the prosecution, that he had not used any force during the robberies. Sentence on O'Connor was adjourned. On 17th October the first offender was convicted and sentence was again adjourned. On 16th January 2009 at the Oxford Crown Court the first offender was sentenced by His Honour Judge Compston to five years' imprisonment. The second offender was sentenced to three years' imprisonment. We are told that the first offender now admits he was involved in the robberies, but he claims he was simply the driver. In response to this, Mr Tehrani, who represented Her Majesty's Attorney General before us, pointed out that although there was no direct evidence that the first offender entered the victims' homes, there was ample circumstantial evidence that he did. Three men entered the homes of the old people wearing distinctive gloves. Three men were arrested in the Jaguar which had clearly been stolen for the purpose of committing the robberies. The Jaguar could be traced to the victims' premises at significant times on 5th July. Similarly, the evidence suggested that on July 6th the three men were again on the prowl. Most importantly, the three men in the car were wearing the distinctive gloves. Lastly, the first offender has previous convictions, to which we will come in a moment, which indicate a propensity to commit this kind of offence. We have considered all those factors with care. Mr Lucas, who appeared before us but not in the court below on behalf of the first offender, attempted to persuade us that on the basis of the evidence put before us by Mr Tehrani there was no sound basis for concluding that the first offender was more than a driver. We disagree. The prosecution at trial put their case against the first offender fairly and squarely on the basis he was one of the three men who entered the homes of the elderly victims both in June and in July. He was convicted on the strength of compelling evidence. If he wished to enter a basis of plea he missed his chance. He contested the matter until after he was convicted. We turn therefore to the personal circumstances of each of the offenders. We are told that it is not known for certain how old the first offender is, but it is believed he is between 25 and 26. The second offender, it is said, is between 19 and 23. The probation service has a date of birth for him of 21st February 1986. Each offender has previous convictions. The first offender first appeared before the courts in September 1994. He has a total of 40 previous convictions for offences that include vehicle offences, violence, burglary and theft. Mr Tehrani invited us to note in particular on 9th October 2002 the first offender was convicted of two burglaries. They were of neighbouring properties. On 14th August 2002 he gained access to both properties by pretending to be an official from the water board. At one of the properties the occupant was 73. He watched the offender all the time and nothing was stolen. The second property was occupied by a lady aged 87. The offender stole her purse containing £50 cash. He was sentenced to 12 months' detention. On 7th October 2003 he was convicted of another burglary. On 3rd August 2003 the first offender and two others entered the home of a 73-year-old woman. She confronted them and they pretended to be from Special Branch. She identified the first offender as the man who held her against her will while the other two conducted an untidy search of her home. He pushed her forcefully onto a sofa several times. He was caught as he tried to escape. The other two escaped with £40 cash. For this offence the first offender was sentenced to 42 months' detention. The first offender somewhat surprisingly was remanded on bail awaiting trial on this conspiracy to rob and took the opportunity of committing an offence of aggravated burglary. He and two others gained access to the home of a 63-year-old man. When they were challenged by him they claimed they were CID and pushed him around. The first offender pleaded guilty on the basis that one of the intruders was armed with a screwdriver but that no force was threatened or used. Again an untidy search was made of the premises. The three intruders were arrested as they left. For this he received a sentence of 51 months' imprisonment. The second offender also has previous convictions. He first appeared before the courts in October 2003. Mr Keene invited us to note that this does not indicate a lifetime of crime. The second offender has a total of nine previous convictions for offences of dishonesty, driving offences, obstructing a police officer, possession of cannabis, burglary and, the prosecution believe, aggravated burglary. At the time of the commission of this conspiracy the offender was on licence for two burglaries one of which was the alleged aggravated burglary for which the second offender was sentenced to three years' custody. The details of those burglaries are as follows. On 8th January 2005 the second offender and others tricked their way into the home of a 92-year-old lady by pretending to be council workmen and stole £2,500. The one described as an aggravated burglary involved a burglary at the home of an elderly woman on 28th October 2005. Mr Tehrani informed us that the offender was armed with a knife which was used to cut the victim's lip when he demanded money from her. It was said that he stole £50 cash. The offender himself, however, asserts that following a trial he was found not guilty of aggravated burglary but guilty of burglary. The prosecution has done its best to investigate the matter in the time available and Her Majesty's Attorney General has been assured that the offender was convicted of an offence of aggravated burglary. However, we do not have a memorandum of conviction and Mr Keene informed us that the second offender continues to deny that he was convicted of the aggravated offence. On any view, Mr Tehrani argued the conviction is relevant given the circumstances. 23 As far as the personal circumstances of the two men are concerned, the sentencing judge had before him pre-sentence reports which set out in some detail why the two men commit offences. As far as the second offender is concerned, it was said that having been a drug addict, on his release from prison in 2006 he obtained work as a landscape gardener which he enjoyed. He developed a relationship with a young woman and became engaged to her. However, he discovered she had been unfaithful and broke off their engagement. This triggered a downward spiral and feelings of depression. It led to unemployment, substance misuse and offending. The second offender has again responded positively to his time in custody. We have also been given a number of certificates upon him and references for him. . Similar arguments have been advanced on behalf of the second offender who, it is said, has also been taking steps to address the drug problems that have led to his repeated offending. Mr Tehrani on behalf of Her Majesty's Attorney General invited the court to consider the protestations of rehabilitation with a degree of scepticism given the entrenched pattern of offending common to both offenders. Mr Tehrani argued that the following aggravating features appear to be present and are common to both offenders: i. there was obvious pre planning and targeting of the old and/or vulnerable members of the community; ii. this was a campaign of robbery during which a substantial number of homes were entered unlawfully in a relatively short period of time; iii. the premises were targeted at a time it was thought the elderly occupant would be at home; iv. force was used and injury inflicted on occasions, and v. both offenders appear to have a propensity for targeting elderly householders. He submitted the position of the first offender was further aggravated by the use of a weapon on 13th June 2007 to inflict injury. As far as the position of the second offender is concerned, that was aggravated by the fact that he was on licence for similar offences. He maintained that there is no relevant mitigation available to the first offender. He accepted, as he must that the second offender's plea of guilty is a mitigating feature and one for which the second offender is entitled to a significant discount from what would otherwise be the appropriate level of sentence. In summary, Mr Tehrani submitted that the sentences passed on each offender were unduly lenient in that they failed to reflect the gravity of the offence, the culpability of the offender, guidance from this court and from the Sentencing Guidelines Council, the need to deter offenders and others from committing offences of this nature and public concern about such offences. He referred us helpfully to a number of decisions of this court, to the Sentencing Guidelines Council's definitive guideline on robbery and their definitive guideline on overarching principles of seriousness. The SGC has categorised robbery into five categories. This offence would fall into the fourth category of violent personal robberies in the home. Mr Tehrani pointed out that the SGC does not provide within the guidelines itself a starting point for offences in category 4. However on page 15 the SGC refers to relevant guidance from the Court of Appeal which should apply to categories 4 and 5. The SGC says this: "The sentencing range for robbery in a home involving physical violence is 13 to 16 years for a first time offender pleading not guilty. In this type of case the starting point reflects the high level of violence although it is clear that longer terms would be appropriate where extreme violence is used. This category overlaps with some cases of aggravated burglary." Mr Tehrani did not argue that 13 to 16 years would be the appropriate sentencing range for this particular offence because we do not have here the high level of violence to which reference is made. However, he did argue that we should bear that range very much in mind when fixing the appropriate range for these offences. He took us to a number of decisions where offences of distraction burglaries and robberies akin to distraction burglaries have been considered, culminating in a decision of this court in Attorney General's Reference No 124 of 2008 , a judgment delivered 11th November 2008 [2008] EWCA Crim 2820 . The Vice President, Hughes LJ, giving the judgment of the court considered the level of sentences referred to in previous decisions and as far as the offence in that particular case was concerned he said this: "It seems to us that sentence for this kind of unpleasant robbery, targeting elderly householders without weapons or significant violence, ought to be in the very general range of five to six years after a trial." He added: "We do not propose that that should be regarded as a tariff set in stone, but it is the broad appropriate level to be gathered from the previous cases and, by analogy, from the general shape of the guidelines." In that case a sentence of three years' imprisonment, passed after a trial for a young man of 18 with some convictions but not convictions of this kind, for two offences of robbery of elderly people in their own homes, was held to be unduly lenient. The sentence of three years was quashed and one of four-and-a-half years substituted. Mr Tehrani also referred us to R v Saw and others [2009] EWCA Crim 1 . Saw was concerned with offences of burglary. However, Mr Tehrani pointed out that where offenders enter the homes of others with the intent to steal, even where there is no actual violence or threat of violence of the kind we have here, the judgment in Saw suggests that the starting point for this kind of offence should have been considerably higher. Mr Lucas on behalf of the first offender invited us to bear in mind that he is still a relatively young man who has a young wife (who has taken the trouble to come to court today) and young children. He properly reminded the court that the trial judge was well placed to assess the criminality of the offender and the man himself. He saw and heard the offender give evidence. He also repeated something that members of this court have been known to say on a number of occasions: "guidelines are only guidelines" and argued we should be slow to interfere with the decision of an experienced trial judge. He invited the court to note the progress that the first offender has made in prison and argued that even if this court were to increase the sentence the first offender is not going to come out of prison a better person. We were told that the first offender is very anxious about the results of today's proceedings and very concerned that his sentence will be increased. For the second offender, Mr Keene suggested that the level of discount for his plea of guilty should be at or close to the maximum because of the stage in the proceedings at which he had indicated his willingness to plead guilty on a basis which was eventually accepted by the Crown. Mr Keene reminded the court of the second offender's basis of plea which included the fact that he played no part in the actual violence. On that note we observe the second offender may not have played any part in the actual violence, but he was a knowing and willing party to the conspiracy and the robberies included violence or threats of violence to elderly people in their own homes. Further, Mr Keene argued that many of the aggravating features put before us by Mr Tehrani are virtually inevitable in cases of distraction burglaries or similar offences. The occupants are bound to be present. They are likely to be vulnerable. Mr Keene also invited the court to note that the second offender is still only a young man. He is doing apparently extremely well in prison and given his lack of offending before 2003 there may be good reason to hope that on his release he can continue his efforts at rehabilitation. We were also reminded that the substantive offences were limited to two days for the first offender and one day for the second, albeit we note there were overt acts suggesting the conspiracy continued on a third day. In our judgment the helpful submissions of Mr Lucas and Mr Keene essentially ignore the overarching principle for offences of this court kind as encapsulated by Lord Taylor, CJ, in Attorney General's Reference 32 to 33 of 1995 [1996] 2 Cr. App. R (S) 346, approved by Judge LJ (as he then was) in R v Eastap, Curt and Thompson [1997] 2 Cr App R (S) 55 and enshrined, as we see it, in the Sentencing Guidelines Council's reference to vulnerable victims. Lord Taylor said this: "We wish to stress that attacks on elderly people in their own homes are particularly despicable and will be regarded by the court as deserving of severe punishment. Elderly victims living alone are vulnerable, not only because of the lack of assistance but also because of their own weakness and isolation. Any attack on such a person is cowardly and can only be expected to be visited with a very severe punishment indeed." To our mind these sentences fall far short of severe punishment. It is unarguable that the sentences were too low. We give leave to refer them. The level of violence, it is true, may not have been as great as in some of the decisions put before us, but this is partly because old people were targeted and a great deal of violence was not required for the robbers to get their way. The robbers needed, for the most part, simply to threaten and terrify their victims into submission. Similarly, although we accept the level of physical harm caused may not have been as great as in some of the decisions put before us, for most of the victims who were subject to clear robberies, as opposed to an offence akin to a distraction burglary, the psychological effects were enormous. It is not overstating the position to say that, given the age of these victims, the consequences could have been fatal. We shall not repeat the aggravating features put before us by Mr Tehrani. Suffice it to say we agree with each and every one of them. We have taken into account the mitigating features relied upon, in particular of course the fact that the second offender is a young man who has pleaded guilty. Our review of the authorities leads us to the conclusion that for a catalogue of offences as encompassed in the conspiracy to rob, with the number of aggravating features present here, one would have expected a sentence in double figures following a contested trial. Accordingly, we quash the sentence of five years for the first offender and substitute for it a sentence of 10 years which in our view is the least sentence that we can impose. For the second offender we quash the sentence of three years and substitute for it a sentence of six years' imprisonment. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII