King, R v

MR JUSTICE MADDISON: On 24th April 2008, at the Crown Court at Derby, the appellant Shaun David King, who was 21 years of age, pleaded guilty to three offences and on 12th September 2008, at the Crown Court in Nottingham, he was sentenced by HHJ Hamilton as follows: for an offence of robbery there was a sentence of five years' imprisonment; for an offence of common assault, a sentence of four months to operate concurrently; and for an offence of possessing a class C drug, namely cannabis, a sentence of one month's imprisonment, again to operate concurrently. There was a direction that the days that the appellant had spent remanded in custody should count towards the sentence. Against those sentences he appeals by leave of the Single Judge.

He was co-accused before the court with a man called Haroon Ahmed, now 20, who pleaded guilty to the same charge of robbery and was sentenced to Detention for Public Protection with a specified period of two and-a-half years. There were features in relation to the co-accused which, from the papers available to us, seem amply to have justified the judge's decision to impose an indeterminate sentence in his case.

The relevant facts were quite straightforward. At about 6.30 on the evening of 26th January 2008, the manager of a service station in Derby was on duty on his own when the appellant and Ahmed entered the shop with their hoods up and their coats pulled up in such a way as to obscure their faces save for the area immediately surrounding the eyes. They did not say anything but the appellant jumped over the counter towards the manager and held a large knife in close proximity to the manager's face. He then pulled the manager's head down onto the counter and pushed the knife very close to him. He said, "Open the till or I'll cut your neck. I'll stab you". The judge, who had seen the video, as have we, described the knife as a wicked looking weapon. The manager, understandably in our view, was very frightened and opened the till.

The appellant took between £400 and £500 from the till and Ahmed held out the plastic bag into which the money was placed. Ahmed then told the appellant to take some cigarettes as well, so the appellant dragged the manager to the cigarette display and told him to put cigarettes into the bag. About 40 packets were placed into the bag before the two men left. The appellant grabbed two phones that were on the counter as they did so.

The manager contacted the police and officers attended and traced the appellant and Ahmed to a nearby address, at which they were arrested. When the officer told the appellant he was under arrest, the appellant punched the officer in the face and attempted to head-butt him. A struggle ensued before the appellant was restrained. On arrival at the police station, a small amount of cannabis resin was found in his possession. He prepared a statement denying any knowledge of the robbery.

He came before the court with seven previous court appearances, beginning in 2005, for offences including burglary (both on one occasion of a dwelling and on another occasion of a non-dwelling) and affray. His only previous custodial sentence was 50 days detention in a Young Offender Institution imposed in 2007 for breach of a community order originally made for the offence of affray. In addition, he had been dealt with by reprimand or warning for two offences of assault occasioning actual bodily harm. The judge had before him a pre-sentence report recording that the appellant had expressed remorse but expressing the view that the appellant minimised his responsibility by claiming unrealistically that the offence involved no significant planning and that the knife had been found by coincidence in a street only a very short time before the robbery. The appellant told the probation officer that he had been under the influence of drink and drugs at the time, as indeed he had been at the time of some of his previous offences. The report recognised the inevitability of a custodial sentence and took the view that there was a moderate to high risk of re-offending, particularly if the appellant was under the influence of cannabis and alcohol.

A psychiatric report presented to the judge stated that the appellant was not suffering from any mental illness and expressed the view that, if he were able to tackle his misuse of drugs and alcohol, the risk of further offending would only be low. Finally, the judge had a letter from the appellant referring, amongst other things, to his alcohol and cannabis problems, expressing remorse for what he had done and, in our view, misrepresenting himself as being not a violent person.

Passing sentence, the judge took account of the reports and the letter. He described this as a planned robbery. Ahmed had instigated it and had given the knife to the appellant, who then went over the counter and held the knife to the unfortunate assistant. That, said the judge, must have been a terrifying experience. The knife had been held at close proximity to his face and he could have been seriously injured. The judge referred to the guidelines of the Sentencing Guidelines Council, to which we will return later. He said that there were aggravating features, in the sense that the offence was clearly pre-planned, and he referred also to the vulnerability of the victim, the disguises contrived by the appellants and the fact that the offence was committed at night in the hope of obtaining a substantial reward. The mitigating features, said the judge, were the plea of guilty, the appellant's age and the signs of remorse. Having identified those aggravating and mitigating features, the judge passed the sentence to which we have referred.

On the appellant's behalf, it is submitted by Mr Janes that the judge must have either adopted too high a starting point for the purposes of sentencing and/or failed to give the appellant sufficient credit for his plea of guilty. He observes that the Sentencing Guidelines Council suggest a range the high point of which is seven years for offending of this kind with a starting point of four years for an offender of previous good character. It is not clear from the judge's sentencing remarks exactly what discount he allowed to reflect the plea of guilty and it would have been helpful had he done so, but we are prepared to assume, for present purposes, that the discount adopted was one of one third and that it was proper to adopt such a discount.

We have carefully considered the submissions made on the appellant's behalf but we disagree with them for various different reasons. To begin with, as we have said, the starting point of four years in the guideline is based on a first time offender, which this appellant was certainly not. In addition, the degree of force, the nature of the threats, the degree of fear experienced by the victim and the value of the property taken make this a serious offence of its kind. In addition to that, most of the aggravating features identified on page 11 of the relevant definitive guideline were present in this case. More than one offender was involved. The appellant had adopted a dominant role in leaping over the counter and holding the knife in the way we have described. The victim was restrained to some degree. The offence was clearly pre-planned. The offenders were wearing a disguise. The offence was committed at night. A vulnerable victim was targeted in the sense that he was in the premises on his own and, as the judge said, the appellant and his co-accused clearly had a substantial gain in mind.

The sentence of five years, notwithstanding the multiplicity of aggravating features, could be described as severe but in our judgment it could not be described as manifestly excessive, not least, we would add, at a time of intense public concern about the carrying and use of knives. For those reasons, the appeal, attractively though it has been presented, is dismissed.

LORD JUSTICE PILL: Thank you.

MR JANES: Thank you, my Lord.

MR JUSTICE MADDISON: I should add, and I apologise for not having done so in the course of my main judgment, that the appellant was slightly under 21 at the time that he was convicted. The judge expressed his sentence as a sentence of imprisonment. Because of the appellant's age, the sentence should have been expressed as a sentence of detention in a Young Offender Institution. Simply to correct that irregularity, we allow the appeal to the extent that we substitute a sentence of detention in a Young Offender Institution of five years for that expressed by the judge.