Preos, R v

LADY JUSTICE HALLETT: Hickinbottom J will give the judgment of the court.

MR JUSTICE HICKINBOTTOM: On 2 March 2009 in the Crown Court at Southwark before Recorder Wood, the appellant pleaded guilty to robbery on the first day of his trial, and also admitted a breach of an 18-month conditional discharge imposed on 4 June 2008 at Horseferry Road Magistrates' Court for an offence of attempted theft. He was sentenced to 21 months' imprisonment for the robbery, and three months' imprisonment consecutive for the attempted theft on the breach. That is an aggregate sentence of 24 months' imprisonment. He now appeals against that sentence with the leave of the single judge.

The background facts are as follows. The appellant is aged 34. The primary index offence occurred at about 4am on 22 October 2008 on the top deck of a night bus in London. Jason Robinson was on the top deck with a friend, who got off the bus leaving Mr Robinson alone. The appellant and an accomplice, seeing him alone, went and sat next to him. There was no one else on the top deck of the bus at that time. They engaged him in conversation, and at one point the appellant put his arm around Mr Robinson's shoulders and neck. When the bus came to its final stop, Mr Robinson got off and realised his mobile phone had been taken from him. The appellant's accomplice ran off with the phone. However, Mr Robinson grabbed the appellant, who became aggressive, and they began to wrestle. The appellant grabbed Mr Robinson by the neck and began to rip at his top, pulling it over his head. However, Mr Robinson eventually overpowered the appellant, who gave up struggling and sat down at the back of the bus where he talked to his accomplice who was outside the bus at the back, but who ran off before the police arrived. When they did arrive, they arrested the appellant, who gave a false name, but when his fingerprints were checked later, he was found to be Emille Preos. In interview, he did not identify his accomplice, who has never been identified, nor of course called. The appellant said that, although that friend may have committed the robbery, he (the appellant) had nothing to do with it.

The attempted theft, for which a conditional discharge was imposed on 4 June 2008, had some similar features. On 1 June 2008 at Leicester Square, the appellant attempted to steal items from a woman's handbag. He asked for three similar offences to be taken into consideration. That offence was committed whilst on bail for a further offence committed on public transport on 14 December 2007, and for later failing to surrender. For each of those offences he was fined £100 or one day imprisonment in lieu, which he has served.

In appealing against sentence now, two grounds are relied upon, both in relation to the sentence imposed for the robbery. First, Mr Crampin, for the appellant, submitted that the discount for plea given by the judge of 12 and a half per cent was in all of the circumstances too low, and in any event, the sentence for the robbery was manifestly excessive. This offence was one generally known as "hugging mugging", that is, the perpetrators did not use overt violence or threats to obtain the phone, but engaged the victim in conversation and used the familiarity that followed to engineer an opportunity to take his phone from him. Mr Robinson's statement suggested that they had shoulder-barged him, causing him to fall to the floor, either before or whilst they took his phone, but the CCTV footage showed that there was no such barge. That footage was only seen by the appellant's legal team, apparently on the morning of the trial when he plead guilty.

Nevertheless, in relation to the first ground of appeal, that was not pressed by Mr Crampin before us today. As the judge said in his sentencing remarks, it would have been open to the appellant to have pleaded guilty and then contested the circumstances of the robbery, if necessary, at a hearing. In the event, until the day of the trial he denied any participation in the robbery at all. The judge said, as he was bound to do following a plea, that this was a joint enterprise between the appellant and his accomplice in order to commit the robbery. In the face of the overwhelming evidence against him, including the CCTV footage, even if the appellant had pleaded guilty at the first opportunity, he would have been entitled to no more than 20 per cent discount.

Given the lateness of the plea and the nature of the evidence against him, we consider the judge was perfectly entitled to limit the discount for plea on the first day of the trial to 12 and a half per cent. We see nothing wrong in principle with that.

Nor do we consider the sentence to be manifestly excessive. Although the Sentencing Guidelines Council's Guidelines for street robbery of this type, that is those with use of minimal force, suggests a starting point of 12 months and a range up to three years, and that being based upon conviction after trial, it is based upon it being a first offence. The appellant has no antecedents for robbery, but has convictions for several offences with some similar features. Second, the appellant is 34, and therefore does not have age on his side. Third, although the level of violence used in taking the phone in this case was minimal, the judge was entitled to take into account the violence used by the appellant on Mr Robinson immediately after the theft, when Mr Robinson sought to detain him and the appellant sought to make good his escape. Fourth, this was a robbery committed by two men in concert. Fifth, this was not opportunist. The two men planned the robbery on the top deck of the bus at night on a lone victim. Sixth, having attempted to avoid "capture" by Mr Robinson, he gave a false name and sought to pervert the course of justice by avoiding the consequences of his actions.

In our judgment, these were seriously aggravating features, several of which are expressly referred to as aggravating features in the Guideline. In addition to that Guideline, in written submissions we were referred to the guidance in relation to mobile phone thefts in Attorney General's Reference Nos 4 and 7 of 2002 [2002] 2 Cr App R (S) 77, which indicated that the usual bracket for such offences would be 18 months to five years.

In the light of all of that Guidance, and in the circumstances of this case, we cannot properly say that the starting sentence used by the sentencing judge, before applying the discount for plea, that is 24 months, was manifestly excessive, or indeed excessive at all. In our judgment, it was within the proper band of sentence open to the judge for this crime in these circumstances.

No complaint is made in respect of the sentence for the attempted theft, either in its length or in it being made consecutive.

For those reasons, we dismiss this appeal.

LADY JUSTICE HALLETT: Thank you, Mr Crampin. Mr Shaw, the authorities know where he will be for the foreseeable future. They know where he comes from -- Algeria via France. Could you make sure they get the message?

MR SHAW: My Lady, I will do.

LADY JUSTICE HALLETT: Thank you.