Attorney General Reference No 4 of 2004

LORD JUSTICE LATHAM: This is an applications by HM Attorney General for leave to refer to this court the sentence imposed on the offender on 12 December 2003 of 4 years' imprisonment for offences of aggravated burglary and two counts of robbery of which he was convicted at the Kingston Crown Court. We give leave to the Attorney General to refer this sentence.

The offender is 32 years of age. He has not served a previous custodial sentence. On 29 January 2003, together with two others, the offender went to a block of flats in Sutton. They rang the door bell. One of the men inside the flat went to answer. When he opened the door he was confronted by the three men, two of whom were armed with knives; one of those was the offender. They demanded money. The person who opened the door was pushed against the wall. When he denied having any money, he was pushed to one side as the intruders entered the flat and went upstairs.

The offender then confronted the other occupant of the flat, grabbed him by the throat, pushed him down onto the bed, threatened him with a knife and ordered him to remove his watch. He demanded money and when the man denied that he had any, the offender attempted to slash at his face, threatening to stab his eye out. He terrified him. One of the other intruders ripped a gold chain from the man's neck. There were further threats, in particular in relation to the cannabis which it was apparent the two occupants of the flat were smoking. When it had been identified one of the three intruders took it. There were persistent demands for money.

The offender then turned his attention to the other occupant of the flat whom he pushed against the wall and pressed a knife to the side of his face towards his mouth. The intruders then picked up a set of keys, took a portable television set, an electronic game machine, mobile telephones, jewellery and the cannabis. They then left. They had clearly terrified both occupants of that flat.

Fortunately the offender and those with him were seen escaping from the flat and getting into a car. The registration number was taken by a local shopkeeper which enabled the police to go to the offender's home address where he was arrested. He was identified later by both occupants at an identification parade.

At the trial he sought to blame those in the flat for burglary, saying that all he had intended to do was to obtain items which had been stolen from him. The offender had 13 previous convictions, but had never received a custodial sentence. In a pre-sentence report he denied having carried a knife. The probation officer assessed him as posing a risk of harm to known adults but not to the public at large.

This was clearly a planned offence by three men who went armed to the premises in question. The use of the knife did cause injury although it was a relatively superficial injury. The offence took place during the hours of darkness.

Miss Johnson, on behalf of the Attorney General, has referred us to three authorities, which it is submitted provide guidance to this court as to the appropriate level of sentencing for offences such as these. The first is the case of Attorney General's Ref No 35 of 2001 [2002] 1 Cr App R (S) 44. In that case the court was confronted with an offender who had burgled the home of a man aged 72 with a knife. He had been sentenced to three and a half years' imprisonment after a plea of guilty. In giving judgment the court said:

In R v Harrison [2002] 1 Cr App R (S) 107 this court upheld a sentence of 5 years' imprisonment imposed following a plea of guilty for an offence of aggravated burglary (where the offender was carrying a knife). In R v Brady [2000] 1 Cr App R (S) 410 this court upheld a sentence of 7 years' imprisonment for aggravated burglary on premises occupied by a 70-year old. From those authorities counsel for the Attorney General derives the submission that the appropriate sentence in this case, where there was no credit to be given for a plea of guilty, must have been in the region of 8 years. With that submission we agree. The question therefore is, what should this court do?

There is no doubt that the sentence of 4 years' imprisonment was unduly lenient, but we have to take into account the matter of double jeopardy. In the present circumstances we also take into account, as Mr Pearce on behalf of the offender has submitted we should, the material set out in a letter from the offender which we have had an opportunity to read.

It is plain that the result of this offence has destroyed the offender's life. He has lost his wife and children in that his marriage has now come to an end and he has not been given an opportunity to see his children whilst he has been in prison. It is clear from what he says that, whilst in prison, he has impressed. He is now an enhanced prisoner; and there was an incident in which he behaved with conspicuous bravery. That enables us to say that we can properly discount from the sentence of 8 years' imprisonment, which would otherwise be appropriate, to a sentence of 6 years' imprisonment. We consider that that is the most that we can do by way of mitigating the appropriate sentence in this case.

Accordingly the sentence we impose is one of 6 years' imprisonment.