Neutral Citation Number: [2009] EWCA Crim 1499
Case No. 2009/02256/A3

IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Tuesday  7  July  2009

B e f o r e:

LORD  JUSTICE  STANLEY  BURNTON

MR  JUSTICE  PENRY-DAVEY

and

MRS  JUSTICE  DOBBS  DBE

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R E G I N A

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NATHAN  ROCHE
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Mr P Kaufman appeared on behalf of the Appellant

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J U D G M E N T

LORD JUSTICE STANLEY BURNTON: I shall ask Mr Justice Penry-Davey to give the judgment of the court.

MR JUSTICE PENRY-DAVEY:
1.  On 26 February 2009 in the Crown Court at Snaresbrook the appellant pleaded guilty to offences of robbery and possession of a bladed article.  On 26 March 2009 he was sentenced to imprisonment for public protection for the robbery, with a minimum period of three years (less the 100 days spent on remand).  No separate penalty was imposed for possession of a bladed article.  He appeals against sentence with the leave of the single judge.

2.  The facts were these.  Just before 8pm on 3 October 2008, the 17 year old complainant and his girlfriend were walking down a subway under the North Circular Road when they saw a mutual friend running towards them looking scared.  They continued a short distance.  They saw the appellant walking towards them in an aggressive way.  He said to the complainant, "Oy, you, come here".  The complainant and his girlfriend turned around and ran off in fear.  The complainant pushed his girlfriend ahead of him, but was caught by the appellant from behind.  The appellant produced a kitchen knife from his trousers, pointed it towards the complainant's throat and said, "Give me everything you have got".  The complainant handed over his mobile phone and wallet.  The appellant said to the girlfriend, "I'm not going to touch you because you're a girl".  He then ran off after shouting a further threat. 

3.  The police were called.  The appellant was traced through calls made by him on the stolen phone.  He was arrested.  When interviewed he denied the offence.  He said that he had bought the phone from someone for £10.  He said that it was a case of mistaken identity after he had been identified by the complainant. 

4.  The appellant is 22 years of age.  He has four previous convictions for robbery: in 2002 a street robbery in which £20 was stolen; later another street robbery with another man in which threats with a knife were made; a further offence of robbery in 2004 in respect of which a sentence of 30 months' imprisonment was imposed; and in 2007 a further offence in which four people on bicycles approached the victim and the appellant said, "Give us what you've got or I'll stab you".  

5.  The pre-sentence report recognised the inevitability of a custodial sentence, identified a high risk of the appellant re-offending and of his causing serious harm to the public.  The view was expressed that the risks would only be reduced when the appellant addressed his offending behaviour and his misuse of drugs and alcohol.  Imprisonment for public protection was recommended.

6.  In mitigation it was suggested that the offence was street robbery level 2, with the appropriate starting point of four years and a range of two to seven years.  An escalation in seriousness was identified in terms of the use of weapons; it started off with the threat of a knife, and on this final occasion the appellant actually held it to the complainant.  His plea of guilty, accepted as at the first opportunity, was relied on.  His remorse was set out in a letter handed to the sentencing judge, which we have seen.  Equally, however, as the judge pointed out, this was the appellant's fifth offence of robbery, and the third during which he had threatened the use of a knife, but on this occasion he had gone further and had actually had a knife with him.  That equally demonstrated an element of pre-planning. 

7.  It is submitted by Mr Kaufman on behalf of the appellant that the judge was wrong to conclude that the appellant was dangerous within the meaning of the Act.  He sought to suggest that that was not the position when the appellant had not, in fact, indulged in any violence, albeit that he had threatened it on more than one occasion in the past.  It was also suggested that, following the remorse and the insight demonstrated by his plea of guilty, there was no significant risk of serious harm.  Mr Kaufman also submits that the starting point (as it must have been) of nine years was significantly outside the guidelines for a level two offence.  Reliance is also placed on that aspect in relation to the notional determinate sentence.  It is submitted that such a substantial departure from the starting point within the guidelines is unjustified and that insufficient weight has been given to the mitigating features.  Mr Kaufman suggests that the facts of the offence fall substantially short of the worst type of offence within the bracket in that no physical force was used, no injury was caused, the incident was of short duration, and that property of relatively small value was taken.  Equally, Mr Kaufman submits that it appears that the judge departed from the guidelines and gave no reasons for so doing.

8.  In the result we do not agree with the conclusion that Mr Kaufman seeks to draw as to dangerousness.  Having regard to the instant offence, to the previous convictions, to the escalation of seriousness in the context of threatening the use of and/or using a knife, we consider that the issue of dangerousness was properly considered by the judge and was properly established, and that accordingly, the sentence of imprisonment for public protection was justified.  The judge was entitled to conclude that there was a significant risk of serious harm to the public caused by the commission of further offences.

9.  However, as to the minimum period, we consider that there is force in the submission that is made.  In our judgment the appropriate determinate sentence in this instance would have been seven years which, with the reduction for mitigation and the plea, would come down to five years, making the minimum period in this case one of two-and-a-half years, rather than the three years settled on by the judge.  The appellant will not be considered for release until that minimum period has been served.  As before, the time spent on remand will count.  The appeal is allowed to that limited extent.

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