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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Tongue & Anor, R. v [2007] EWCA Crim 561 (26 February 2007) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2007/561.html Cite as: [2007] EWCA Crim 561

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		26th February 2007

1. Mr Justice Crane: On 12th June 2006, in the Crown Court at Warwick, these two appellants pleaded guilty to robbery, and Tongue pleaded guilty to having an offensive weapon at the same time. On 13th July Tongue pleaded guilty to separate offences of burglary and going equipped for burglary. On 2nd October these appellants were sentenced by His Honour Judge Bray as follows. Tongue received concurrent sentences of 12 months' detention in a Young Offender Institution for the offences of burglary and going equipped for burglary. In relation to the robbery, he received five years' detention in a Young Offender Institution, consecutive, and for having an offensive weapon two years' detention, again consecutive. That resulted in a total of eight years' detention in a Young Offender Institution, subject to a deduction for the 122 days spent on remand. An order was made for the forfeiture of a knife. Doyle was sentenced to five years' imprisonment with a direction that 122 days on remand should count towards sentence. In his case a community order previously imposed for an offence of having a bladed article was revoked.
2. They appeal against sentence by leave of the single judge, who in both cases granted a short extension of time.
3. A third participant in the robbery, a man called Kirwan, pleaded guilty to a single count of robbery. He was sentenced to five years' imprisonment, subject to deduction of the period on remand.
4. In Tongue's case the burglary occurred first. On 27th February 2006 he was seen in the back garden of a house in Castle Bromwich. He ran off. The owner and his brother gave chase, but lost sight of him. When they returned they found damage to the exterior of the property and a garage. The roof and the skylight had been torn off. There was very extensive damage caused by what appeared to be a screwdriver or a blade, and entry to an extension to the house had been obtained.
5. About an hour later a man returned home to his premises not far away to find Tongue in his back garden. Tongue was detained. He had with him gloves and a scarf, which appeared to have eye holes cut out of it so it could be used as a mask. He also had a screwdriver. When interviewed, he denied the offences. He said that the screwdriver was for self-defence. In due course he was picked out at an identification procedure. He was released on bail and the other matter, therefore, occurred whilst he was on bail.
6. On 31st May 2006, a man was working alone in his shop in Atherstone, a grocery store and sub-post office. People had seen men acting suspiciously in the area. At about 12.15 p.m. these two appellants entered the shop, the third man, Kirwan, remaining outside in a getaway car. The two men went to the far end of the store and put on balaclavas. Tongue then jumped over the counter with a 5 inch knife in his hand, pointed the knife at the shopkeeper and told him three times to open the safe. The man feared for his life and was sure he was going to be stabbed. He told Tongue to have what he wanted. In fact Tongue took stamps valued at some £158 and cash in the approximate sum of £3,875. Doyle remained in the shop at the time but did not actively do anything. After Tongue and Doyle left the police were phoned. The shopkeeper said, not surprisingly, that he felt very shaken up and feared for his life.
7. The two appellants were driven away at speed. Kirwan later accepted that, having realised Tongue and Doyle had committed a robbery, he told them to put on flourescent jackets to disguise themselves as workmen. The vehicle came to a halt as a result of a puncture. As Kirwan got out of the car a large number of books of stamps were scattered on the ground. All three were arrested. In fact the majority of the stolen property was recovered.
8. Tongue is now 20. He has one previous conviction for an offence of battery in 2002 when he was subjected to a three month action plan order. The pre-sentence report in his case indicated that he took full responsibility for his behaviour, accepted culpability, and did not try to minimise his role or try to blame others. He accepted that he associated with pro-criminal and drug using friends. He accepted he had a tendency to engage in risky behaviour. He had a long-standing addiction to class A drugs. He had funded that by legal means up to the time of the robbery. He had become drug free, however, while on remand. He indicated a willingness to co-operate with any intervention by the probation service. According to the report writer he did not express pro-criminal attitudes and expressed a good sense of shame. There was medium risk of re-offending and a medium risk of harm to the public.
9. Doyle is now 21. He has two previous convictions. In 2002 for obstructing a constable he was sentenced to a three month referral order. But then, on 8th May 2006, for having a bladed article, he was sentenced to a two year community order with a 180 hour unpaid work requirement.
10. The pre-sentence report in his case referred to the appellant's deep shame. The appellant indicated that the offence occurred because he had occurred a drug debt of some £1,000. He took complete responsibility for the offence and was at a loss to explain his behaviour. The report writer suspected that he was easily influenced by peers. He was using cannabis and cocaine daily. He welcomed assistance in relation to drugs. He, too, was assessed as having a medium risk of re-offending and a medium risk of harm. He had not in fact commenced the unpaid work because of his arrest, so he had achieved little in relation to the community order.
11. There was a letter before the court from each of the appellants expressing remorse.
12. In relation to the robbery, the learned judge described in each case what Tongue and Doyle had done. In the case of Doyle he said that, although Doyle did not threaten the victim with a knife, he knew that violence or the threat of violence was likely in an offence of this kind. It seems that it was accepted that Doyle may not have known of the knife prior to its production in the shop. As the learned judge said, the courts have a duty to protect those in charge of small post offices in the country. Account had been taken of the appellant's age, but there had to be a deterrent sentence of some length, particularly in the case of Tongue.
13. We have been referred to a series of previous cases, but also to the guidelines issued by the Sentencing Guidelines Council. We should say that once guidelines have been issued it should be the exception rather than the rule to cite previous cases and we cannot help referring to the fact that two of the cases referred to were in 1989 and 1990, although the case in 1990, Attorney General's Reference No 9 of 1989 (1990) 12 Cr App R(S) 7, contained Lord Lane CJ's general remarks, now familiar, about the importance of protecting small shops. The other two cases in 2005 and 2002 were in one case an offence quite different from the present and in the other a case with some parallels.
14. We take the view, however, that the guidelines of the Sentencing Guidelines Council, to which counsel referred and to which the judge did not refer, issued in July 2006 are generally more pertinent. We note that in those cases in which a weapon is produced and used to threaten in the case of adult offenders a starting point of four years, and for young offenders a starting point of three years is indicated, with a sentencing range in the case of adult offenders of two to seven years and in the case of young offenders of one to six years. Those sentences are, of course, sentences after a trial. This was a case in which there were pleas of guilty.
15. Nevertheless, there were a number of aggravating factors. Of those listed by the Sentencing Guidelines Council, as likely to be of particular significance, present here are that more than one defendant was involved, that the offence was clearly pre-planned and that the two appellants wore disguises. This was quite plainly a serious offence.
16. We turn back to the sentences that were actually imposed. For the burglary and the offence of going equipped no complaint could be made, or is made, about the sentence of 12 months. In the case of Tongue he received a total of seven years, including the consecutive sentence of two years in relation to the knife, for the offence of robbery. In our view, that was too high. In the case of Doyle he was plainly given a lesser sentence because the judge regarded his part as somewhat less and because of his absence of participation in advance in relation to the knife.
17. Taking into account the guidelines to which we have referred, we take the view that changes in those sentence are required. In the case of Tongue the sentence of 12 months will remain in place. The other two sentences will become concurrent with each other, making a total of five years in relation to the robbery occasion, and thus a total of six years altogether. In the case of Doyle, in order to maintain some fair comparison with Tongue, we shall reduce the sentence from five years to four years. In each case the deduction of the period on remand will remain.
18. Thus Tongue will have a total sentence of six years in a young offender institution in place of eight, and Doyle will have a total sentence of four years' imprisonment in place of five, again, subject to the period on remand. To that extent, the appeals are allowed.