Neutral Citation Number: [2008] EWCA Crim 1195
 
No: 200801646 A1 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Wednesday, 14th May 2008

B e f o r e:

LORD JUSTICE DYSON 

MR JUSTICE OPENSHAW 
 
HIS HONOUR JUDGE GORDON
Sitting as a Judge of the Court of Appeal Criminal Division 
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R E G I N A 

v 

PAUL RIGBY
 
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Mr P Astbury appeared on behalf of the Appellant
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J U D G M E N T
1.	JUDGE GORDON:  This is an appeal against sentence with leave of the single judge.  On 6th February this year at the Crown Court at Liverpool, the appellant pleaded guilty to robbery.  On the 26th of the same month he was sentenced to a total of 3 years' imprisonment and it was ordered that the 120 days that he had spent on remand should count towards the sentence. 
2.	There were two co‑defendants, each of whom also pleaded guilty.  Steven Robinson was sentenced to a term of imprisonment for public protection, the minimum term being 21 months, again less the 120 days that he had spent on remand.  Belinda Evans, the appellant's girlfriend, was sentenced to 2½ years' imprisonment.
3.	As far as the facts are concerned, at some stage during the evening of 26th/27th October, the appellant and his two co‑defendants robbed a beggar in the city centre.  The whole incident was recorded on closed circuit television and, when viewed, that clearly showed the appellant and Robinson coming across the beggar, by the name of Gill, who was lying on the ground in a busy pedestrian area.  They took hold of him.  He was too intoxicated to offer any resistance and they dragged him towards a telephone box.  There he was physically restrained, Robinson holding his head between his own ankles and Miss Evans standing on his foot.  The appellant's role was to search through Mr Gill's pockets and removal his mobile telephone.  
4.	The operators of the closed circuit television seeing those events immediately alerted the police as to what had happened.  The three were traced to a taxi at which point they were arrested.  Miss Evans still had the stolen telephone which was therefore recovered.  Mr Gill was seen but because of the amount that he had to drink he was unable to remember anything of the incident and he did not know whether he was even aware of it as it took place.  He was, however, able to identify his mobile telephone.
5.	The appellant is 40 years old.  He has a long criminal record going back many years, in the main for acquisitive offences, no doubt related to his undoubted drug addiction.  He does have a conviction in 1980 for assault occasioning actual bodily harm for which he was conditionally discharged, also in 1990 for violent disorder for which this court substituted a sentence of 23 months' imprisonment, and in 1998 a conviction for theft from a person, 42 days imprisonment.  His last conviction of significance was in May 2003 when he was sentenced to 3 years' imprisonment for six counts of supplying Class A drugs.  Save for three cases again related to drugs, he has had no convictions recorded against him since his release from that sentence.
6.	There was before the judge a Pre‑Sentence Report which assessed the appellant as being at high risk of re‑offending in the light of his drug addiction and a medium risk of causing harm to the general public.  It described the offence as opportunistic, committed when the appellant was intoxicated, and describes him as "deeply remorseful". 
7.	In sentencing, the learned judge accepted that the offence involved minimum force, but he said that it was aggravated by being committed in a public place by three people and on a defenceless man.  He said that in respect of each of those that he was sentencing, the aggravating feature was their long criminal records.  He then carefully set out, firstly, the sentencing consequences of this conviction on earlier sentences passed on the two co‑defendants and secondly, his approach to the assumption of dangerousness in section 229(3) of the Criminal Justice Act 2003 which applied to each of those before him.  As far as this appellant is concerned, he ruled that he was not a dangerous offender within the Act.
8.	When sentencing the appellant, he said that he took into account the plea of guilty, the content of the Pre‑Sentence Report and the matters of mitigation.
9.	The grounds of appeal drafted by Mr Astbury, who appears here and appeared below, may be summarised in this way: firstly, that insufficient weight was paid to matters of mitigation; secondly, that the learned judge took too high a starting point; and thirdly, that the sentence did not comply with the Sentencing Guidelines Council's Definitive Guideline on robbery.  In short, he submitted that the sentence was manifestly excessive in the sense that it was too long.
10.	We have also seen a brief report from the prison about the appellant.  It does not assist him but cannot, in our view, affect our conclusions.
11.	The learned judge did not in terms specify the amount of the reduction for a guilty plea.  The revised Definitive Guideline on reductions for plea indicates that in most circumstances, where the plea is tendered at the earliest possible moment, that reduction should be one third.  However, it also indicates that it is open to a trial judge, where the evidence against a defendant who has pleaded guilty is overwhelming, to take a lesser figure than one third, in which case the normal percentage would be in the region of 20.  It seems to us that this is a case when the judge would have been perfectly entitled, in view of the nature of the evidence here, to have reduced the sentence by 20 per cent as opposed to one third.
12.	We turn next to the guideline.  By virtue of section 172(1), the learned judge was required, as are we, to have regard to the relevant sentencing guideline, that is the guideline on robbery.  Whilst a guideline need not always be followed in the particular circumstances of a case, it is incumbent upon the sentencing judge if he is not going to do so to give reasons (see section 174(2)(a) of the 2003 Act and the R v Kai Bowering [2006] 2 Cr.App.R(S) 10).  We therefore assume that the learned judge was applying the Definitive Guideline on robbery, as should we.
13.	Turning to it, this was, in the terms of the guideline, a street robbery for money.  It is submitted by Mr Astbury that when one looks at the facts of it ‑‑ the nature and duration, the degree of fear, the fact that there was no weapon, no injury ‑‑ that it comes within Level 1, described as threat and/or use of minimal force.  That, we accept.  It is, however, aggravated by these matters: the vulnerability of Mr Gill, the victim; secondly, the fact that there were three robbers and one victim; thirdly, that it took place at night; and fourthly, in our view, although not in the guideline, the judge was entitled to take into account as aggravation the fact that it was in a public place.  Lastly, the previous convictions are also an aggravating feature of seriousness.
14.	By way of mitigation: firstly, it was unplanned and opportunistic; secondly, there were matters of personal mitigation which are helpfully set out in the grounds of appeal and advice that accompanies them; and thirdly, the evidence of remorse disclosed in the Pre‑Sentence Report.  The guideline provides for a Level 1 offence a sentencing starting point of 12 months with a sentencing range of up to 3 years custody.  That is of course the range of sentencing for a first time offender who has pleaded not guilty.  The appellant's convictions are therefore capable of taking the sentence outside that range, but against that is the discount for his guilty plea.
15.	In our view, it would have been appropriate to pass a sentence right at the top end of the sentencing guideline for Level 1 offences and for it to be reduced by something in the region of 20 per cent.  In those circumstances, taking into account all those matters, in our view a sentence of 3 years was manifestly excessive.  We quash that sentence and we substitute for it a sentence of 2 years and 3 months.  The 120 days spent on remand and the period served since will count towards that sentence.