Razack, R v

Mr Justice Blair: This is an appeal against sentence by leave of the single judge.

On 5th November 2007, in the Snaresbrook Crown Court, the appellant, who is aged 24, pleaded guilty to robbery, which was count 1, and possessing an imitation firearm at the time of committing an offence, which was count 2. On 10th December he was sentenced by His Honour Judge Lafferty to seven years' imprisonment on count 1 and one year and six months' imprisonment concurrent on count 2.

The facts, in short, are as follows. At approximately 9.00 p.m., on 16th August 2007, the appellant entered Corals bookmakers on Bethnal Green Road in east London. He approached the counter and at that point the female cashier and the male manager noticed that he was wearing a dark hooded top and a scarf over the lower part of his face. The appellant knocked on the counter twice and said words to the effect, "Give me the money." The manager noted a bulge in the appellant's pocket and, fearing that he had a weapon, he told the cashier to put the cash into a plastic bag that the appellant produced. She put a total of £111 in the bag. As she did so, she feared too that the appellant had a weapon, though she did not see one. Once the appellant had the money, he left the premises. The whole episode lasted about two and a half minutes.

It so happened that an alert police officer, who is to be commended, was in a car outside the bookmakers. He saw what was going on and when the appellant left the premises the officer gave chase. He ordered the appellant to stop but he did not. Other officers were then called. The appellant was caught when he got stuck climbing over a fence. He handed over a gun to the arresting officers and said it was not a real one. The weapon was in fact a 4.5 mm air pistol which was able to fire air pellets.

In his basis of plea, accepted by the prosecution, the appellant said that he was a drug addict and he had committed the robbery to pay his dealer. During the robbery he had the weapon in the waistband of his trousers. At no point did he show the weapon to staff. He did not accept that he told the cashier to hurry up and put the money in the bag or she would "get it". He did not try to use the weapon to prevent his arrest and he did not threaten the police with it. Not surprisingly, given his plea, counsel accepts that, whatever the basis of plea may have been, there was an implied threat of violence to the staff, which undoubtedly there was.

In his sentencing remarks the learned judge said that the appellant was sentenced on the basis that had the need arisen he would have produced the firearm to reinforce his demands. His intention when he left home that day with a balaclava, scarf and gloves was to rob the bookmakers and to frighten the staff into handing over the money. As the judge put it, this was a grave offence, because bookmakers were particularly vulnerable, and the sentence had to have an element of deterrence as well as punishment. Credit was given for the early plea and the fact that no physical harm was caused. However, the cashier had been left very afraid and an aggravating feature was the fact that the appellant was already subject to a community order. As the judge pointed out, the fact that the appellant needed the money to pay off a drug dealer, if indeed that was the case, was not mitigation.

The appellant has a number of previous convictions which include being drunk on an aircraft, common assault, assault on the police and threatening behaviour.

The point taken on his behalf on the appeal is a straightforward one. There was some discussion at the sentencing hearing of the Sentencing Guideline Council's definitive guideline on robbery, though we note that the judge was given fairly limited assistance in that regard. Before us counsel for the appellant has accepted that this was a case that fell within level 2 of the guidelines as they apply to robberies of small businesses. We say at once that we have no doubt that that concession was correctly made. That being so, the starting point on a trial was four years' custody and the sentencing range was between two to seven years' custody. On that basis, it was submitted, a sentence of seven years' imprisonment on a plea was excessive.

We note that this was a case which involved a firearm and that this was a working firearm. The target was a small business and it was at night. Those matters are, in our judgment, important aggravating factors.

Counsel says, in effect, that, although serious, this offence is not quite at the top of the level two bracket. Perhaps one can debate what is meant by "not quite at the top of the bracket", but in our judgment where the weapon involved in a robbery is a firearm, as it was in this case, the facts will inevitably tend to fall towards the top of the bracket in question. In our view, in this particular case, the facts do so.

However, even on that basis, the appellant was entitled to credit for his plea of guilty at the earliest possible opportunity. It follows, therefore, that in our judgment a sentence of seven years for the robbery on a plea was excessive. After careful consideration, and fully cognisant, as we are, of the judge's justified remarks as to deterrence, the increasing prevalence of firearms and the resultant gravity of this type of offence, we have reached the conclusion that a seven year sentence was manifestly excessive given the plea of guilty.

In our view the correct sentence for the robbery offence in the circumstances of this case was one of five years' imprisonment. To that extent the appeal is allowed. The original sentence is quashed and a term of five years' imprisonment substituted on the robbery, count 1. The sentence on count 2 stands. We should make it clear that the 114 days spent in custody prior to sentence should count towards sentence.