Chapman, R. v

Judge Rogers: On 28th February 2006, at the Crown Court at Reading, this appellant was sentenced in respect of two indictments. On the first of those indictments there was one count of attempted robbery, an offence committed on 24th August 2005, and the learned judge, His Honour Judge King, sentenced the appellant to three years' detention in a young offender institution. In respect of a second indictment, he had to be dealt with for three counts: first of all, attempted robbery, to which a sentence of four years' detention was imposed, count 2, racially aggravated assault by beating, eight months' detention; and finally for battery, count 3, four months' detention. All of those sentences were ordered to run concurrently, making a total of four years' detention in a young offender institution, the 155 days spent on remand being ordered to count towards the sentence.

He now appeals against that sentence by leave of the single judge.

The facts are as follows. On 24th August 2005 a 19 year old youth, Mr Lilley, was walking home along a public path between two roads when he came across a group of about seven youths, one of whom he recognised as a youth called Bottsford. One of the group called out "queer", or words to that effect, to Lilley, who, being a homosexual, was used to that sort of comment and ignored it. He tried to walk past the group, but his path was blocked by the appellant who stood in front of him and demanded money. Lilley tried to pass but the appellant blocked him again. Then Bottsford came up and punched him on the head. The appellant joined in that attack and Lilley fell to the ground where he was punched and kicked. Lilley eventually made his way home and contacted the police.

The appellant was arrested on 8th September. He declined to comment in interview. He was bailed.

Three weeks later, whilst still on bail, he committed the offences in the second indictment on 1st October. A man called Ahmed drove his BMW motor car to a general store and bought some sweets and drinks for his children. He was making his way back to his car when the appellant said, "Oi, mate, give us your keys". Ahmed ignored him. He then realised he had forgotten to purchase some chocolate for his children so went back to the shop. Whilst he did that he heard others saying to the appellant "don't do it". Ahmed realised that there might be trouble, so told the shopkeeper to be ready to phone the police before he made his way out of the shop again.

When he came back out of the shop he found the appellant right beside his car and the appellant said, "Give me your fucking car keys". Ahmed refused. The appellant had his hand in the pockets of his clothing and gave the impression he had a weapon of some sort. He said to Ahmed, "I've got a piece, I'm going to shoot you." Ahmed felt threatened by that but tried to reason with the appellant, but appellant responded by saying, "I'm going to stab you", and walked towards Ahmed who backed away from him. The appellant kicked out at Ahmed's legs and punched him in the face. He then started racially to abuse him, saying "Get in the fucking corner you Paki". He demanded Ahmed's keys again and kicked and punched him. By this time Ahmed thought the police had been called, so changed his tack and tried to get hold of the appellant, who ran off between some cars repeatedly shouting racial abuse.

A passer-by, Mr Franklin, intervened. The appellant said, "You're white, I'm white, you're not a Paki". He tried to hit Mr Franklin and spat at both Mr Franklin and Mr Ahmed. Members of the group the appellant had been with tried to calm him down. However he ran off and came back with a metal bar which he swung at Mr Franklin who managed to block the blow so that it only hit him on the left shoulder. The police arrived and the appellant ran into a public house where he was arrested. When interviewed, he declined to comment.

This appellant was born on 20th August 1987 and is thus 18 years of age. He has numerous previous convictions. They include four previous convictions for common assault, three for robbery, two for racially aggravated threatening behaviour, one for assault with intent to rob, one for witness intimidation, one for affray and one for battery.

The pre-sentence report assessed this appellant as demonstrating a high risk of the likelihood of re-offending and a high risk of harm to the public. There was a medium risk of harm based on the pattern of offending. He had expressed his remorse and admitted he was angry particularly when he had been drinking. He did not seem to understand the reason for his inappropriate behaviour and tended to minimise his offending. The court before sentence also had the opportunity of reading a letter which had been prepared by the appellant.

The learned judge in sentencing said that the appellant had to be sentenced for two offences of attempted robbery, one of aggravated assault and one of assault. The offences were committed on two separate dates and he was on bail for the first attempted robbery when he committed the second series of offences. He had an appalling record of offences involving either the threat or use of violence, including substantial offences of robbery, attempted robbery or assault with intent to rob. He had also committed further specified offences. Those who present a risk of serious harm to the public are likely to find themselves sentenced to life imprisonment or indeterminate sentences. It was hoped that it was becoming clear to the appellant of the risk he had put himself in by his violent, anti-social, aggressive and totally unjustified conduct. He undoubtedly posed a risk of harm by committing further specified offences, but at the present time he did not pose a significant risk of serious harm because he had not carried a weapon, and, although these were unpleasant and aggressive acts, they did not cause really serious harm. However, His Honour Judge King warned the appellant that on future occasions a judge would probably not come to the same view if he committed another serious specified offence. In determining the appropriate sentence account was taken of the principle of totality and his pleas.

The grounds of appeal relied upon by Mr Evans are effectively three-fold. Firstly, that bearing in mind the age of this appellant this total sentence was manifestly excessive.

Secondly, that there was no more than an attempt to rob, no robbery was actually committed and, although serious, this was not as serious as is often the case in offences of this kind.

Thirdly, Mr Evans drew our attention to the report of Attorney General's Reference No 28 of 2001 (Daniel Collins) [2002] 1 Cr App R(S) 250. In that case, in respect of four robberies, three committed whilst on bail, the court concluded that the appropriate sentence was one of three years' imprisonment. There are, however, two distinguishing features between that case and this appeal. In that case the defendant had "no previous similar convictions", and, secondly, in arriving at that figure of three years the court had to take into account double jeopardy. Thereafter a further reduction was made in respect of the period spent in custody.

In our judgment, His Honour Judge King rightly identified these offences as being very serious and sentenced taking into account that the three counts on the later indictment were committed whilst this appellant was on bail. In our judgment, although this sentence was severe, it was not manifestly excessive and cannot properly be criticised. In those circumstances, this appeal is dismissed.