Attorney General's Reference No. 64 OF 2005

LORD JUSTICE LATHAM: This is an application by the Attorney General for leave to make a reference under section 36 of the Criminal Justice Act 1988 in relation to a sentence of four years' detention which was imposed upon this offender on 27th May 2005. Sentence was imposed for offences of robbery, aggravated burglary and kidnap. The offender is 19 years of age. He has two previous convictions which are relevant: one for robbery, for which he was sentenced to a detention and training order for ten months on 18th December 2003, and then, on 16th February 2004, for attempted robbery when he was sentenced to a detention and training order for 12 months' consecutive.

We give leave to the Attorney General to refer this sentence.

The circumstances of the offences were that on 6th February 2005 this offender, armed with a gun -- and it was the prosecution case that he was the ring leader, although the prosecution accepted that the gun was an imitation gun -- approached the victim, who was 26 years old, at night in the street outside a restaurant. He was surrounded by the offender and his four companions. It was made clear to the victim that he was to be robbed. They asked him to give them everything he had. He did so.

They then forced him into his car. He sat in the back behind the driver's seat and was driven to his home, where he lived with his mother, father and six year old brother. He was forced to enter the house. His mother was the first to see him and those behind him. She saw the offender and others holding her son at gun point. She was terrified. He managed to escape. He ran up the stairs and out through a bathroom window, jumped down 12 feet, and eventually managed to get to a neighbour to ring the police. Meanwhile, his mother had been grabbed by one of the offender's companions. Money was demanded. Her jewelery box was taken. Then his father was manhandled and threatened and further items were removed from the premises. The offender and his accomplices then ran off and fled in two separate vehicles.

Not surprisingly, the original victim and his mother and father were shocked and terrified, but, fortunately, physically unhurt.

The police eventually chased one of the cars. As it happens their attention was drawn to it, in the first instance, by its speed. After it had been abandoned, the area where it had been abandoned was searched and the offender was found in a garden nearby. His home was searched. No guns were found. However, there were items on him which made it plain that he had been involved in the robbery.

He ultimately pleaded guilty, as we have said. None of those who were with him were caught, so he alone stood trial.

On behalf of the Attorney General Mr Aylett submits to us that quite plainly this was an extremely serious offence involving threats of extreme violence in the street, followed by a raid on the victim and his family's home in the course of which violence was used in order to persuade those in the home to give up the property which was stolen. In such circumstances, it is submitted on behalf of the Attorney General, the Court would be bound to be considering, in the light of the case of Atkinson and Clarke (1993) 14 Cr App R(S) 696, a sentence in the region of 14 years' imprisonment for an adult after a plea of not guilty.

The judge in his sentencing remarks said the following:

Be that as it may, the fact remains, in our judgment, that this offence, on its face, does fall within the category described in Atkinson and Clarke and therefore justified a sentence significantly into two figures in the case of an adult who pleaded not guilty.

We have to take into account, however, as Mr Beyts properly submits on behalf of the offender, this offender's age, he is 19 years of age, and the mitigation which he was able to put before the judge and which undoubtedly affected the sentencing judge's mind.

The features which certainly influenced the judge essentially related to the fact that this young man had had a difficult upbringing. Despite the two previous convictions which were for similar offences, he had sought to better himself after release and before these offences by obtaining a place in tertiary education, which one would have hoped could have enabled him to break out of the confines of the criminal world which he had undoubtedly inhabited in the past. The reports before the judge made it clear that, unhappily, he had retained the friends and acquaintances who were involved in a criminal culture and was not able to break free from their influence. It was in those circumstances that he became involved in the dreadful criminal events of this evening. There was other material before the judge which undoubtedly did redound to the offender's credit. The judge took that into account, as do we. At the end of the day, however, the only really significant piece of mitigation has been his plea of guilty. That would have justified in our view, together with his age, a reduction in the appropriate sentence below two figures.

In our judgment, for this criminality a sentence of eight years' detention would have been the appropriate sentence for the judge to have imposed. We take into account however, as we must, the element of double jeopardy. In the present case, together with the other matters to which we have referred, we consider that the right sentence overall would be one of six years' detention. That is the sentence we substitute for the sentence which was imposed by the judge.