No. 2007/01269/A9
Neutral Citation Number: [2007] EWCA Crim 1540
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Wednesday  6 June  2007

B e f o r e:

LORD  JUSTICE  PILL

MR  JUSTICE  CALVERT-SMITH

and

MRS  JUSTICE  DOBBS  DBE

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R E G I N A

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MISS S MUZAFFER appeared on behalf of THE APPELLANT

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J U D G M E N T

LORD JUSTICE PILL:  
1.  On 6 February 2007, in the Crown Court at Coventry, before His Honour Judge Eccles QC, the appellant, who is 15 years of age, pleaded guilty to an offence of robbery on indictment T20070033.  On 27 February before His Honour Judge Cole, he pleaded guilty to an offence of robbery and an offence of attempted robbery on indictment T20070042.  He was sentenced to three years' detention pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000, concurrent on each count.  He appeals against sentence by leave of the single judge.
  
2.  The facts of the robbery are as follows.  On the evening of 19 November 2006, a schoolboy was walking home from his part-time job when the appellant and another young man attracted his attention.  The appellant asked his name, what school he attended and whether he was carrying anything of value.  The other male put his hand into the victim's pocket, took out his mobile telephone and gave it to the appellant.  When the victim tried to take his telephone back, the other male punched him in the face.  The victim persisted in attempting to recover his mobile phone, which was a valuable one, and when other men were present he asked for help to recover it.  The other male (not the appellant) said, "Give me some money".  When the victim said that he had no money, the male said, "I'll take you to the cash point".  Having failed to obtain help from a passing motorist, the victim went into a nearby shop where he was helped and taken to the police station.  There he reported the incident.  He identified the appellant from a CCTV still.  When the appellant was arrested five days later on 24 November he denied any offence.  
 
3.  In a written basis of plea he accepted that he was the male who took the lesser part, as we have described, but accepted that the offence was a joint enterprise.  
 
4.  The facts of the attempted robbery were these.  Shortly before midnight on the same day, 19 November, two students were walking through a subway on their way home from a university mountaineering trip.  They were carrying their rucksacks from the trip.  The appellant and two others approached them.  The appellant had a bandanna covering his face and the other two had their hoods up.  While the appellant occupied the attention of one of the students, the others attacked the other one and threatened to stab him.  The victim, who was approached by the appellant, was able to prevent any action against him, but a mobile telephone was taken from the other young man.  On this occasion the appellant was identified from CCTV footage and made admissions about the offence.  Again there was a written basis of plea which the prosecution did not challenge.  
 
5.  For a youth of 15 years the appellant has a very bad record.  He had appeared before the courts on four previous occasions.  In March 2006 he received an eight month detention and training order for two offences of burglary, two of theft and two of blackmail, which involved stealing the victims' mobile telephones and demanding a finders fee with threats of violence.  In May 2006 he received a six month detention and training order to run concurrently with the other for two offences of robbery.  The following month, in June 2006, the appellant received a consecutive six month detention and training order for an offence of robbery.  He also appeared before the court on 27 November when, by reason of the current offences, he was fined for breaching the detention and training order.  Thus he has already received three detention and training orders.  He was released on 21 September 2006 and these offences were committed within a short time thereafter.  
 
6.  When sentencing the appellant the judge described the offences; he accepted that pleas of guilty had been tendered at the first available opportunity.  Having been addressed by Miss Muzaffer, who also appears for the appellant today and who urged such a course, he stated that a sentence within the community was not possible in this case.  
 
7.  Two further robberies have been dealt with by way of sentence since the sentence imposed in this court.  On 27 April 2007, before Mr Recorder Parker, at the Coventry Crown Court, the appellant pleaded guilty to two more counts of robbery.  The first of these was committed on 28 October 2006, that is shortly before the current offences, when the victim was robbed of cash, a works pass and a bus pass.  The second occurred on the same day as the present offences (19 November), when the robbery was of a mobile telephone.  Mr Recorder Parker sentenced the appellant to a term of 15 months, also under section 91.  Having been told of the bringing of the present appeal, he ordered that the term run concurrently with the present sentence and expressed the view that a sentence should not be imposed on that occasion which interfered with the earliest release date resulting from the current sentences.  
 
8.  In helpful submissions on the appellant's behalf, Miss Muzaffer relies on the extreme youth of the appellant.  She submits that, having regard to the guilty pleas, the judge's starting point must have been too high to achieve a term of three years under section 91.  She accepts that the appellant has a very poor record for someone of his age.  She refers to his immaturity even for his age.  She submits that the sentence should be very much shorter.  
 
9.  We have been referred to the guidelines issued by the Sentencing Guidelines Council for the offence of robbery which deals with offences committed on or after 1 August 2006.  A level 1 offence involves a threat and/or minimal use of force; a level 2 offence involves the use of a weapon to threaten and/or the use of significant force.  She submits that these were level 1 offences.  The guideline in the case of a young offender is:  
 
		"For a notional young offender the starting point for a level 1 offence is a community order, and the sentence range is from a community order to a twelve month detention and training order."  

10.  Counsel accepts that a custodial sentence is inevitable but, having regard to the previous record and attempts to deal with the appellant, she submits that the jump from twelve months to three years is not warranted in the circumstances of this case.  Written submissions did not include a suggestion that section 91 was inappropriate, but the matter having been raised by the court, counsel submits that the court should consider substituting a sentence of less than two years, which would involve a sentence, as were the earlier sentences, by way of detention and training order.  
 
11.  We are unable to accept that submission.  This is a case of multiple offending.  On no fewer than three occasions, and notwithstanding his age, the appellant has been sentenced to detention and training orders.  He has continued to offend.  The current offences, including those which were dealt with at the Coventry Crown Court, were committed within a comparatively short time after his release from custody.  He was in breach of his earlier orders.  The offences were of a similar nature and are persistent.  In our judgment a sentence under section 91 was appropriate in this case.  We have regard to the guidance as to the use of section 91 given by this court in R v Fairhurst [1986] 1 WLR 1374, R v Mills [1998] 2 Cr App R(S) 128 and R v Brown [1999] 1 Cr App R(S) 132.  
 
12.  Clearly the public requires and deserves protection from the appellant and from the way in which he has prayed upon young people in the circumstances described.  Several of the aggravating features stated by the Sentencing Guidelines Council were present in this case:  more than one offender was involved; there was clearly a degree of pre-planning (though not in relation to particular victims); and offences were committed at night and in one case with the help of a disguise.  It is said in mitigation that, not only is the appellant extremely young, but the degree of violence used by the appellant is not substantial.  We have regard to those factors, and clearly no weapon was used by him.  
 
13.  Notwithstanding the seriousness and persistence of the appellant's conduct, and these offences, we are influenced by his extreme youth.  A section 91 order was appropriate but in our judgment a shorter term was appropriate in this case.  We quash the sentences of three years under section 91 and substitute for them sentences of 27 months.  To that extent this appeal is allowed.  

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