Attorney General Reference No 34 of 2003

J U D G M E N T

1. LORD JUSTICE KAY: Her Majesty's Attorney General applies for leave to refer to the court a sentence which he regards as lenient pursuant to section 36 of the Criminal Justice Act 1986. We grant leave.

2. The offender is 34 years old. On 11th April 2003 he pleaded guilty at the Bristol Crown Court to an offence of aggravated burglary. Sentence was adjourned and on 9th May he was sentenced by His Honour Judge Foley to three years' imprisonment.

3. The victim of the offence, David Small, lives in a two bedroomed detached bungalow in Locking, Weston Super-Mare. At about 6.30 pm on Saturday 25th January 2003 he was alone in his lounge watching television when his doorbell rang. He opened the door and saw a white male who turned out to be the offender smiling at him and a black male standing behind him. The black male squirted liquid into his face. Fortunately this had no lasting effect on him. The offender then barged the victim backwards and punched him several times to the face. He pointed a pistol-type gun at him. The gun had a 6 to 7 inch long barrel. The victim however appreciated that it was not a real gun. It was in fact a gun capable of discharging pellets if it was in working order, but it was not even in working order.

4. Having entered the flat the offender demanded that the victim should tell them where the safe was and that way he would avoid getting hurt. The victim responded that he had no safe. That response was indeed true because in May 2002 he had been the victim of another burglary in which his safe, containing a substantial amount of money, had been stolen and he had never replaced it.

5. The two men then pushed the victim into his kitchen and tied his arms up with zip ties. The accomplice switched off the victim's mobile telephone and put it in his pocket. They repeatedly asked where the safe and money were. He was dragged to the hallway and then into his bedroom and forced face down on the bed. The two men continued to repeat their demand that he should reveal where the safe was. Eventually the victim told them that there was some money in the chest of drawers by the bed. The accomplice emptied the drawer and took some £2,000 from it and also loose change from some jars.

6. The offender then tied up the victim's knees and feet using his own belt and ties which he took from the wardrobe. They stole his camcorder and then put his vest over his face. The victim heard the offender say, "Go and get a knife, we'll have to cut him". The victim could then hear his house being ransacked and eventually heard them say that there was no safe. Then the offender went back to check the victim and noticed that some of the ties had come off. His response was to punch him again several times to the head. He told the victim that he should not leave until an hour after they had left. He threatened to harm his son if they did not do as they said. The offender then took the victim's wallet from his back pocket, which contained cash, his driving licence and bank cards, and they then left the premises.

7. Once they had gone Mr Small looked round his house and saw that both his and his son's bedroom had been ransacked and were a mess. He telephoned the police. When the police arrived they found inside the front door of the porch entrance the remains of the firearm (the one not in working order) that had been carried. They also noticed that Mr Small's face was bleeding and swollen.

8. Three days later on the afternoon of 28th January officers from the West Midlands force in Birmingham stopped a car which contained the offender and a woman as passengers. When officers searched the car they found the victim's driving licence and bank card in the back seats. Both the offender and the woman were arrested. In due course the woman gave a statement to the police in which she said that when they were stopped by the police the offender had told her that he had some cards from an aggravated burglary and he wanted her to keep them, so she had hidden them in the rear of the car.

9. On 29th January the offender was placed on an identification parade and was picked out by the victim as being one of his attackers. Footprints taken from Mr Small's kitchen matched the offender's footprints.

10. The firearm parts recovered from the house were examined. The expert was able to reassemble them and we have already indicated the result of his work on the handgun.

11. The offender was interviewed, but he elected to make no comment to the questions he was asked. The victim expressed the view that the offender assumed the lead role in the attack. He described how as a result of the attack he was left with a graze to his chin, reddened cheeks, red welts round his wrist and a sore left thumb. Not surprisingly he has since indicated that he is now very nervous when he hears his doorbell ring.

12. On behalf of the Attorney General it is submitted that there were a number of aggravating features to this case. The first is that the attack was clearly planned. The second is that the offence involved two individuals attacking a single victim. The third is that the attack took place in the evening. The fourth is that actual violence was used involving the victim being tied up, his face covered and his being punched on more than one occasion. The fifth is that the offender was carrying an imitation firearm. The sixth is that a significant amount of property was stolen. A further aggravating feature was present, in that the offence had been committed fifteen days after the offender had been made the subject of a community rehabilitation order. That list of aggravating features identified by the Attorney General omits the factor that we view as being very serious that this attack took place in the victim's own home, a place where above all others he ought to be entitled to feel safe.

13. It is recognised on behalf of the Attorney General that there are mitigating features in the case. The first is that the offender pleaded guilty, although it has to be recognised that the evidence against him was overwhelming. The next is one to which the sentencing judge attached importance, and that was that the victim appreciated that he was not being confronted with a real firearm. In all the circumstances, it is submitted that the sentence of three years' imprisonment did not adequately reflect the gravity of the offence.

14. Mr Adebayo on behalf of the Attorney General has drawn our attention to three authorities. The first is the case of Funnell and others (1986) 8 Cr App R (S) 143. That is a case in which two of the appellants had sentences of nine years' imprisonment reduced to six years' imprisonment. They had burgled the home of a man of 84, armed with an imitation firearm, and tied up the victim. There were a number of distinctions between that case and this. The first is that the appellants in that case had effectively no previous convictions while the offender in this case has a bad criminal record. He has made 21 previous appearances before the court for 74 offences. His offences include assault occasioning actual bodily harm on more than one occasion, affray on more than one occasion, carrying an offensive weapon on more than one occasion, possessing a noxious liquid gas, which has of course significance in the light of the way this incident started, and other offences as well. The most serious offence of all that he has previously been convicted of was an offence of causing grievous bodily harm with intent, which was coupled with an assault occasioning actual bodily harm for which he was sentenced to a term of five years' imprisonment. That sentence was passed in 1996. He was, as we have already indicated, the subject of an order made by the courts just fifteen days before in respect of offences of dishonesty. The other distinguishing feature between the case of Funnell and others and this case is that in the case of Funnell and others there had been relatively minor violence used against the victim. He had been tied to a chair with a rope but it was accepted that he had been tied quite loosely and there was no element of his being punched gratuitously, as happened in this case on more than one occasion. The sentence, as we have indicated, in that case originally as passed was one of nine years' imprisonment. It was reduced to six years' imprisonment. The other factor that has to be observed as a distinction between the two cases is the age of the victim in the case of Funnell and others - he was a man of 84. The victim in this case was a man in his 40s. The courts rightly attach even greater significance to offences committed against the elderly in their own homes than those against younger people having regard to the particular vulnerability of such persons.

15. The second case to which we have been referred is the case of Stewart [1996] 2 Cr App R (S) 302. In that case a sentence of seven years' imprisonment was upheld in respect of an offence of burglary following a conviction before a jury. The burglary was the burglary of a man of 77 in poor health in his own home, he having been dragged back into his home and attacked by the appellant. There was a suggestion that he had a knife, but the jury rejected an allegation of aggravated burglary, meaning that they were not satisfied that he was in fact in any way armed with a weapon.

16. The third case to which our attention has been drawn is Attorney-General's Reference No 35 of 2001 (Stuart Barry Girt)[2002] 1 Cr App R (S) 44, reported on page 187. That was a case in which the court increased a sentence of three-and-a-half years' imprisonment for a burglary at the home of a man aged 72 by a man armed with a knife to four-and-a-half years' imprisonment. The court made clear in the course of giving judgment that, but for the element of double jeopardy, it would have viewed the proper sentence as being one of six years' imprisonment. The submission made on behalf of the Attorney General is that the facts of that case were not as serious as the facts of this case and that, it is suggested, lends support to the suggestion that this sentence was unduly lenient.

17. On behalf of the offender Mr Pakrooh submits that whilst this sentence can properly be characterised as being a lenient sentence, it is not one that ought to be said to be an unduly lenient sentence. He submits that there were circumstances in relation to this matter that meant that it did not reach a level where a judge could not conclude that, having regard to mitigation that was advanced, a sentence of three years' imprisonment was appropriate. In the alternative he submits that if the court does conclude that the sentence was unduly lenient any interference with the sentence ought to be minimal. He submits that having regard to the authorities this was nothing like as serious a case as Stewart. He points to the fact that in both Stewart and Funnell and others the victim was an elderly person and underlines the factor to which we have already referred that the courts afford even greater protection where the victim is a person who has been or may have been targeted because of their particular vulnerability. He submits that in the circumstances of this case the fact that the victim knew that he was not being confronted with a real gun greatly diminished any fear that he was likely to feel from that weapon being produced. He submits in those circumstances that the court ought to conclude that three years, lenient though it may have been, was a proper sentence.

18. We simply cannot accept those submissions. This was on any view a very serious offence of its kind. It involved the deliberate plan to go to this person's house. It seems likely that there was some knowledge that at some stage he had had a safe because of the demand to know where the safe was located. The offence involved two men attacking a single victim in his own home. They went armed with a weapon. The weapon was in fact a firearm. It no doubt was carried because they believed that the victim would think that it was a real gun, otherwise there would be no point in carrying it. Once they got there there was the serious feature of squirting something in his face - again inevitably going to increase the fear that he felt. Then he was manhandled back into his own home and gratuitous punching to his face took place. There was then the further experience of his having been taken to his bedroom, tied up, put on his bed, something being placed over his head and a further attack upon him for no good reason at all when he was later punched by the offender yet again. In those circumstances it seems to us that, notwithstanding that the victim was not a particularly vulnerable person, this was nonetheless a very serious case. In our judgment the proper sentence following a trial for a case of this kind was of the order of nine years' imprisonment. The appellant had pleaded guilty at an early stage and it was right that he was given credit for his plea of guilty. Following a guilty plea at first instance we would have thought that the appropriate sentence for this offender, with his record, for this offence was one of seven years' imprisonment.

19. We now fall to consider his case after he has already been sentenced once. It is the normal practice of this court to make an allowance for the fact that he has to face resentencing. In considering what the allowance should be we have regard to the information that has been placed before us about the efforts that the appellant has been making whilst he has been in prison. There is no doubt that the root cause of the offender's problems is that he is addicted to drugs and that has led to his offending. There is further good reason to think that his offending on this occasion was related to his drug habit. In those circumstances any effort that he makes to resolve those problems whilst he is serving his lengthy sentence is clearly in the public interest. It is quite clear that, having received the sentence of three years' imprisonment, he has set about addressing those problems and has made real efforts, as the documents before us indicate, to tackle those problems.

20. We think it right to recognise the effort that he has been making, which may in part have been a response to the lenient sentence that he received, by reducing the sentence rather more than we otherwise might have thought to be appropriate. We think that the proper discount to make for the allowance of double jeopardy is one of eighteen months. Accordingly the sentence of seven years that we otherwise would have deemed appropriate becomes one of five-and-a-half years' imprisonment. We quash the sentence of three years' imprisonment and substitute for it a sentence of five-and-a-half years' imprisonment.