Neutral Citation Number: [2008] EWCA Crim 1516
Case No: 2008/2177/A9 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: Monday, 16 June 2008
 
B e f o r e:

LORD JUSTICE SCOTT BAKER 

MR JUSTICE BURNETT 

HIS HONOUR JUDGE ROBERTS QC
(Sitting as a Judge of the CACD)
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REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 OF THE CRIMINAL JUSTICE ACT 1988 

ATTORNEY‑GENERAL'S REFERENCE NO 22 OF 2008   
 
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Computer Aided Transcript of the Stenograph Notes of  
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Mr C Aylett QC appeared on behalf of the Attorney General 
Mr D Chidgey appeared on behalf of the Offender 
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J U D G M E N T 

1.	LORD JUSTICE SCOTT BAKER:  Her Majesty's Attorney General applies for leave to refer the sentence on Jordon Wilson under section 36 of the Criminal Justice Act 1988 as being unduly lenient.  We grant leave.
2.	The offender was born on 3rd December 1989 and is therefore aged 18.  It appears that through no fault of the judge he was under the impression when sentencing the offender that he was in fact one year older.
3.	The facts are these.  On 10th August 2007 the offender pleaded guilty to one count of attempted robbery and on 27th March 2008 he was made the subject of a community order with a supervision requirement and ordered to carry out 100 hours of unpaid work.  The sentencing judge was His Honour Judge Ticehurst sitting in the Crown Court at Bristol.
4.	Turning to the offence, on the evening of 16th May 2007 the victim, James Dolley, aged 24, went to a nightclub in All Saints Street in Bristol.  Mr Dolley left the club at about 2.30 in the morning.  He went to a cashpoint machine at the junction of Union Street and Broadmead.  He took his wallet from his trouser pocket and then heard someone shouting at him.  When he turned around he was aware of two people standing behind him, one closer to him than the other.  It is apparent from film from a CCTV camera that the offender was the man closest to Mr Dolley.  The offender's co‑accused, Aaron Ferguson, was standing slightly further back.  The offender then sprayed Mr Dolley in the face with CS gas.  Mr Dolley could feel his eyes, nose and mouth burning and he closed his eyes.  The offender sprayed him twice more in the face.  Mr Dolley was pushed to the ground and the offender punched and kicked him as he lay on the ground.  Ferguson went towards Mr Dolley as if to join in.  Someone alerted the police to what was happening and the offender ran off.  He was arrested not far away.  Later that day the police recovered from the area a canister of CS gas and that evening Ferguson handed himself in to the police.  
5.	Mr Dolley was taken to hospital.  He had bruising to his right eye and grazing to his nose.  Two weeks after the incident his right eye became infected and as a result very swollen.  For a while Mr Dolley was unable to open his eye.  By the time he made a further witness statement nearly three months later Mr Dolley said that he had still not been out on his own.  
6.	When he was interviewed by the police the offender submitted a prepared statement in which he denied having attempted to rob Mr Dolley.  The offender then made no comment to the questions that were put to him.
7.	On 13th July 2007 the offender and Ferguson were committed for trial by the Bristol Youth Court.  At the plea and case management hearing on 10th August the offender pleaded guilty to one offence of attempted robbery.  Ferguson pleaded not guilty.  Sentencing in the offender's case was adjourned until the conclusion of Ferguson's trial.  Two separate psychiatric reports, one for the defence and one for the prosecution, indicated that Ferguson was not fit to be tried.  As a result on 22nd February 2008, before Judge Ticehurst, a jury was empanelled to deal with the question of whether or not Ferguson had done the act with which he had been charged.  The jury found that he had indeed taken part in the attempted robbery of Mr Dolley.  Ferguson's case was then adjourned for sentence. In due course a supervision order was made in his case.  It is dealing with Ferguson's case that explains the regrettable delay in sentencing the offender.  
8.	The offender has previous convictions which include aggravated vehicle taking, threatening behaviour, possession of a knife in a public place, shoplifting, possession of cannabis and motoring offences.  On 4th June 2007, that is between two and three weeks after the index offence was committed, he was made the subject of a community rehabilitation order for six months.  
9.	When the court came to sentence the offender on 27th March 2008 it had before it reports of 31st August 2007 and 27th March 2008.  The offender claimed he committed the offence in the context of having consumed a lot of alcohol and smoking cannabis.  Had he not done so he claimed he would have been able to resist pressure from others to participate in the offence.  The offender successfully completed the rehabilitation order that was imposed on 4th June 2007.  By the time of sentence he was said to have moderated his use of cannabis and alcohol.  The author of the second probation report thought that the element of risk of further offending that had previously been described as moderate was diminishing.  The probation officer recommended a community punishment and rehabilitation order with an additional curfew requirement.  As we have said, the judge imposed a community order with a supervision requirement and ordered him to carry out 100 hours of unpaid work.  
10.	We have a further report of 22nd May 2008.  His response to supervision has not been good.  On 27th May 2008 he was sent a letter of final warning that if he did not respond breach action would be taken.  We have no further up to date information save that Mr Chidgey says on his behalf that he has an explanation for at least one of his failures to attend.  The recent report describes him as currently posing a medium risk of causing serious harm to the public.  The probation officer thought that he was young for his age, relying on his mother to manage his appointments and to get him around Bristol.  
11.	The judge in passing sentence observed that the offender had committed an offence which would ordinarily attract a sentence of four years custody on a plea.  The Sentencing Guidelines Council guidelines for the appropriate range of sentence describe for adult offenders four years' detention with a range of two to seven years, whereas the position for young offenders is somewhat different in that the starting point is three years' detention and the range one to six years.  
12.	This offender committed the offence at the age of 17 whereas, as we have explained, the judge was under the impression that he committed it at the age of 18.  
13.	The judge said that he was going to follow the recommendation in the reports.  He made no reference whatever to the aggravating features of the case.  Those were that the offender had armed himself with a CS gas canister, that two people were involved in the attack, that he used the CS gas to spray the victim and that he then punched and kicked him whilst he was on the ground and that the offence was committed at night.  
14.	The judge gave no reason for departing from what he had described as the ordinary sentence following a plea of guilty.  We have been referred to Attorney General's References No 150 and 151 of 2002 [2003] 2 Cr.App.R (S) 658.  That case pre‑dated the Sentencing Guideline Council's recommendations but it is important in that at paragraph 9, Kay LJ, giving the judgment of the court, referred to the Lord Chief Justice's observations in the earlier authority of Attorney General's Reference Nos 4 and 7 of 2002 [2002] 2 Cr.App.R (S) 77 at 345.  At page 347 the Lord Chief Justice said this:
"The information available points in the direction of telephones having played a part in the rise in robberies. Those under 18 constitute nearly half (48 per cent) of all victims, with a peak age at 15 and 16. 
Faced with that background the courts have no alternative but to adopt a robust sentencing policy towards those who commit these offences. Those who do so must understand that they will be punished severely. Custodial sentences will be the only option available to the courts when these offences are committed, unless there are exceptional circumstances. That will apply irrespective of the age of the offender and irrespective of whether the offender has previous convictions. However, both those factors are very important when a judge comes to decide on the length of sentence." 
It is true that that was a case concerning mobile phones whereas this is a case concerning a bank card, but in our judgment offences of the kind in the present case are no less prevalent today than those referred to by the Lord Chief Justice in Attorney General's References Nos 150 and 151.  
15.	The only mitigation in the present case was the offender's plea of guilty and his youth, together in our view with one further important factor and that is the length of time that the offender had to await sentence.  
16.	The judge has written a letter to the court describing what he perceived as the background to the offence but he gave no reasons at the time of passing sentence for departing from the sentence that would ordinarily be expected in a case of this kind.  As we have observed, the starting point was three years' detention and the sentencing range from one to six years.  In our view the aggravating features would have required a starting point somewhat greater than three years' detention.  We think however that the right sentence, following a plea of guilty, would have been one of three years' detention and we then have to make allowance for the important factor of double jeopardy, in particular bearing in mind that a non‑custodial sentence was passed, part of which has already been served by the offender.  As Kay LJ made clear in Attorney General's Reference to which we have referred, double jeopardy is particularly relevant where someone who has not been sentenced to custody by the lower court has his sentence increased to custody by this court.  Taking all these factors into account, we think that the sentence that should now be imposed is one of two years' detention in a young offender institution.  The sentence will be increased accordingly.  
17.	What is the position about surrender to custody? 
18.	MR AYLETT:  My Lord, ordinarily my Lord might say the offender should surrender within either 24 or 48 hours to a nominated police station and the sentence should not begin to run until the time of surrender.  My learned friend has a suggestion I think for a police station in Bristol. 
19.	MR CHIDGEY:  I believe my Lord he may be in the vicinity of Trinity Road Police Station in Bristol.  So he could surrender there.
20.	LORD JUSTICE SCOTT BAKER:  Yes, where is he at the moment? 
21.	MR CHIDGEY:  I only know that when I spoke with him earlier today he was with his mother, although not at her house.  I do not know his exact whereabouts at the moment I am afraid.
22.	LORD JUSTICE SCOTT BAKER:  How long are you asking for? 
23.	MR CHIDGEY:  My Lord, could I ask for 48 hours so that things are not rushed?  I do not know the situation of his parents, for example, whether he would want to see his father, if his father is still around.  I do not know.  I wonder if 48 hours might be allowed.
24.	LORD JUSTICE SCOTT BAKER:  No.  We think 24 hours would be sufficient and we direct that he surrender to Trinity Road Police Station by 1 pm tomorrow.
25.	MR AYLETT:  Would my Lord direct the sentence does not begin to run‑‑‑‑ 
26.	LORD JUSTICE SCOTT BAKER:  The sentence must not begin to run until then and we take into account what we think are two days' detention that he has already served.  Is that right? 
27.	MR CHIDGEY:  My Lord, it could only have been detention the first time.  He was arrested but I know he was on bail after that.
28.	LORD JUSTICE SCOTT BAKER:  He was in detention for two days. 
29.	MR CHIDGEY:  I am grateful for that being taken into account.
30.	LORD JUSTICE SCOTT BAKER:  That should be taken into account in determining the sentence he serves. 
31.	MR CHIDGEY:  Yes, my Lord.
32.	LORD JUSTICE SCOTT BAKER:  Thank you.