Attorney General's Reference No. 115 OF 2005

LORD JUSTICE SCOTT BAKER: The offender, Tony Richards, is 55. The Attorney General applies for leave to refer his sentence to this court on the ground that it was unduly lenient. We have granted that leave.

On 30th March 2005 the offender was committed by justices to the Crown Court after pleading guilty to two offences of possession of a Class A drug with intent to supply - in one case crack cocaine, in the other heroin.

On 11th October, in the Crown Court at Reading, the offender pleaded guilty to robbery. A formal verdict of not guilty was entered upon a further count alleging possession of a firearm with intent contrary to section 18 of the Firearms Act 1968. The robbery, incidentally, was in breach of bail, on which the offender was in respect of the earlier drug offences.

On 4th November the offender was sentenced by Mr Recorder Riza QC to four years' imprisonment for the robbery and two years and eight months concurrent for the drug offences, all the sentences to run concurrently.

The plea of guilty to the robbery was tendered on the first day of the trial, following an earlier plea of not guilty. A basis of plea was tendered accepting that the offender did use an imitation firearm in the robbery but not the one found in his belongings.

The facts of the case in so far as they are relevant can be described as follows. On 23rd November 2004 a warrant under the Misuse of Drugs Act was executed at an address in Reading. Mr Richards, the offender, was found in the bedroom at that property and he had eight small cling film wraps down his left sock and thirteen small cling film wraps down his right sock. He was arrested and in interview admitted to being in possession of crack cocaine and heroin. At the same time various other things were seized from the premises, including crack pipes on which there were traces of crack cocaine, and foil with heroin on it. Once in custody, the offender tested positive for opiates. These wraps comprised 124 milligrams of crack cocaine and 121 milligrams of heroin.

On 23rd April 2005 a lady called Margaret Chede, who was 64, was in her shop in Reading. It is a small shop that sells telephone cards that allow people to call abroad at discounted rates and it sells small trinkets and the like. She opened the shop in the morning at about 10 am and shortly after she had done so the offender walked in. The events that followed were caught on closed circuit television. The offender pointed a gun at her, saying "Give me all the money you have here". She described the gun as a black revolver handgun, which was in his right hand. She gave him all the change that she had, and then he said "Give me more". He reached into the front counter and grabbed a handful of gold chains. Then he made off quickly. She went out of the shop shouting after him, "He's a thief, he's a thief".

The police were called and, having identified the person that they thought was responsible, made a number of enquiries. Those enquiries led police officers to a lock-up in a block of flats where the offender was said to have been staying. On opening the lock-up, they found a suitcase, which contained items of clothing and in the pockets of one of the items of the clothing, was a gun. That was an imitation firearm, but not, in fact, according to the offender, the weapon that was used in the robbery.

As to the drug offences, the offender's case was that he was not a commercial street dealer. This was possession with intent to supply among friends at what was in fact a party. As to the robbery, he said he was walking down the road complaining to his friend that he had no money and was unable to purchase food for his eighteen-month-old child. His friend produced an imitation plastic gun and suggested he use it to intimidate a shopkeeper into giving him some money. He committed the offence, so he contended, in a moment of madness. He admitted stealing about £36 but not any jewellery. He did it in order to obtain money for drugs.

He has one previous conviction. On 16th October 2003, for the possession of an offensive weapon, which he says was a small knife, and for theft from the person, he was fined £100 and given a conditional discharge.

The Recorder assessed the risk that he posed as low to medium, but not significant, basing this on the assessment in the pre-sentence report and the gravity of the robbery. He did not therefore qualify for a mandatory sentence under section 225 of the Criminal Justice Act 2003. No complaint is made about that finding.

The offender was entitled to some discount for his pleas of guilty: one-third in respect of the drug offences because the plea was made timeously, but only one-tenth for the robbery. That appears to have been common ground between counsel, and indeed the judge, prior to his passing sentence. However, the judge in passing sentence said that he had in mind a sentence for the robbery of 60 months, but had reduced it by one-third and further, on account of the mitigation, to four years. We think that either there has been an error in transcription or a slip of the tongue on the part of the judge because it certainly appears that he meant one-tenth rather than one-third. For the drug offences he imposed a sentence of two years and eight months, that being a reduction from his starting point of one-third. He made the sentences concurrent, thus imposing a total sentence of four years' imprisonment.

We have a prison report dated 13th December 2005 which indicates that he appears to be behaving satisfactorily in prison. It is also apparent that his relationship with his partner appears to have broken up.

The Attorney General makes no complaint about the sentence of two years and eight months' imprisonment imposed in respect of the drug offences. The complaint of undue leniency relates to the robbery and to the fact that the sentences were made to run concurrently rather than consecutively.

We have been referred to the case of Afonso [2005] 1 Cr App R (S) 560, which indicates that, for a first drug supply offence, as these were, a sentence of two to two-and-a-half years on an early plea of guilty would be appropriate. In our judgment these drug offences fell somewhere near the lower end of possession with intent to supply; and we agree that the sentence of two years and eight months was within the appropriate range.

We were referred to a number of authorities in respect of the robbery. These included Davies [2003] 2 Cr App R (S) 104, where on a plea of gulity to a robbery of an off-licence with an air pistol the sentence was reduced from ten years to seven; Attorney-General's Reference No 17 of 1998 (John Goscombe) [2000] 1 Cr App R (S) 174, where, on a plea of guilty in respect of a robbery of a garage with an imitation firearm, a sentence of four years was regarded as unduly lenient and increased to six. It was said that it warranted at least seven on a plea of guilty. There was there some degree of planning; and also the case of the Attorney-General's Reference No 14 of 1991 (Stephen Reed) (1992) 13 Cr App R (S) 446, where it was observed that a sentence of less than seven years, on a plea of guilty, would seldom be appropriate for robberies of the category into which this case fell.

This was a serious robbery because it was committed with an imitation firearm. A small shop was targeted - the kind of place where robbers think they can frequently find ready cash - and a woman was the victim. Had the robbery stood alone, it would, in our view, have warranted a sentence of seven years' imprisonment, bearing in mind the late plea of guilty and, as has been pointed out on many occasions, the need to deter others from targeting vulnerable premises such as small shops where cash is likely to be kept. That said, this offence, albeit committed with an imitation firearm, was not the subject of significant preplanning and, as the judge observed, was out of character. The judge, in our view, should have passed consecutive sentences, but should of course nevertheless have had in mind the question of totality. It should, in our judgment, have led to a total sentence of approaching eight years, which could have been comprised by five years for the robbery and two years and eight months consecutive for the drug offences. In our judgment a total sentence of four years was in the circumstances unduly lenient. Taking into account double jeopardy, we think that the offender should serve a total sentence of six years, made up as to five years for the robbery and one year consecutive for the drug offences. We observe also that the robbery was committed whilst on bail. That is a factor but not something which in the particular circumstances attracts any additional penalty.

Accordingly, the Reference is allowed and the sentence increased from one of four years' imprisonment to one of six years' imprisonment, as we have indicated.