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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 >> Attorney Generals Reference No. 81 and 82 of 2009 (Butler) [2010] EWCA Crim 354 (10 February 2010) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2010/354.html Cite as: [2010] EWCA Crim 354

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		10 February 2010

THE LORD CHIEF JUSTICE:

1. This is an application by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court sentences which she considers to be unduly lenient. We grant leave.
2. The offenders are Wayne Butler, who is aged 23, having been born in September 1986 and Kevin Taylor, who is aged 25, having been born in April 1985. Both have significant criminal records. Together with a third offender they faced a three count indictment which alleged two offences of robbery and one of burglary, all of which were committed on the same day in April 2009. The first and third offenders entered guilty pleas at the plea and case management hearing to all three counts. The second offender pleaded guilty to all three counts. However, the matter was re-examined and he was given permission to vacate his plea to count 3. The Crown offered no further evidence against him and he therefore did not fall to be sentenced on that count.
3. On 11 September 2009, in the Crown Court at Swansea, before Mr Recorder Philip Davies the offenders were sentenced as follows. The first offender: on count 1 (robbery), 24 months' imprisonment; on count 2 (burglary), 12 months' imprisonment to be served concurrently; and on count 3 (robbery), 12 months' imprisonment to be served consecutively. That is a total sentence of three years' imprisonment. In addition, the Recorder ordered that an additional 136 days be served for breach of licence. His order was that that sentence should run consecutively. That order was inconsistent with the complicated, but relevant, provisions of section 116 of the Powers of Criminal Courts (Sentencing) Act 2000. The Recorder should have ordered that this period should either be served first, before the sentences for the robbery and burglary, or concurrently. He plainly intended that they should be served consecutively so as to add to the total sentence. We shall therefore order that the period of 136 days for breach of licence will be served first. It makes no difference in practice.
4. The second offender on count 1 (robbery) was sentenced to 24 months' imprisonment, and on count (burglary) he was sentenced to a concurrent term of 12 months' imprisonment. His case was complicated by the fact that at the same hearing he was before the court for an unconnected offence of wounding contrary to section 20 of the Offences against the Person Act 1861. He was sentenced to a consecutive term of 15 months' imprisonment in respect of that offence. He was in breach of a suspended sentence of 26 weeks' imprisonment which was passed on 6 March 2008 for offences of threatening behaviour and assault on a constable. This sentence was activated, but its overall duration was reduced to 13 weeks.
5. The third offender was made the subject of a supervision order for twelve months. His case is not the subject of this application.
6. The facts of the two offences of robbery and the domestic burglary which were committed in April 2009 can be briefly summarised. All three took place on the same day in Aberystwyth. The robbery offences were committed in occupied dwelling-houses. The Crown's case is that the ring-leader was the first offender. Although he was armed with a baseball bat, he did not use it to inflict any physical injury. Indeed in the result he used no violence on anyone. Neither of the offenders used any violence.
7. The motive for the first robbery was a desire to steal money and drugs from a room at No 6 St Mary's Hall, Aberystwyth. The noise that was made led the occupier of No 7 to open his door and interrupt the offence. The offenders turned on him and proceeded to steal items from his room.
8. The second count covers a successful burglary of the unoccupied bedsit of No 6, which was the first target for the offenders. Cannabis plants were stolen and the room was ransacked.
9. The third offence of robbery arose from the first offender entering the home of victims in an attempt, so it was said, to find a man named Dooley and to demand a repayment of a debt which was supposedly owed to him by one of the occupants who was not present at the time.
10. The facts need no further elucidation, save for these features. The victim of the first robbery at No 7 asked if he could help when he noticed that the three offenders were knocking at the door of No 6. The first offender demanded money and drugs. He was, the victim said, holding a baseball bat which he used to gesture and threaten. The other offenders came into the bedsit. The victim was so frightened that he soiled himself. All three then left. Unsurprisingly, the victim described the impact of the offence as leaving him frightened and afraid.
11. The offenders then called at the bedsit at No 6, which they burgled. The occupier was not in. To gain entry they broke the door lock, seized the cannabis plants and ransacked the room. They stripped the cannabis leaves and placed them in a plastic bag.
12. The robbery in count 3 occurred about two hours later. A dwelling house was visited at about 6.45pm. The householder was at home with her 18 year old son. She opened the door. All three men entered. The first offender demanded to know where Dooley was. He claimed that he had served 18 months in prison because of him. During the course of this confrontation the householder noticed that the first offender was carrying the bat. It is clear that he did not brandish it. There was then a confrontation between the first offender and the householder's son. The first offender alleged that the son owed him money. The son said that he could not remember. The situation was about to escalate into violence. At one stage the first offender commented that the son of the household was "still old enough to have a slap". That led the boy to urge his mother to hand over some money. She did so because she was frightened for their safety. The first offender continued to ask about Dooley. According to the householder, the second offender intervened in order to calm the situation in order to avoid violence by the first offender against her son. Following this crime the householder has been frightened to be alone, to go to sleep and she has had a panic button fitted in the house.
13. The police received information about the two offenders. They had a description of the car which they followed. They searched the car. They found the baseball bat, a snooker cue and various other items. The offenders were charged.
14. In due course they fell to be sentenced. In count 1 there was an issue about whether money had been stolen. Eventually, the offenders having denied that money had been stolen, the victim made a statement withdrawing his assertion that money had been stolen. Accordingly, so far as that was concerned he had not told the truth in his statement.
15. The third offender fell to be sentenced on the basis (which affected all three) that the baseball bat was not taken to the third address to threaten. It had been in his waistband and fell out, although he accepted that thereafter he had held it. In other words, it had not been brandished at the householder (although there could have been no doubt in her mind that it was there).
16. The brief facts of the section 20 offence against the second offender are these. It related to an incident which took place at Aberystwyth railway station in November 2008 when a man was attacked and beaten. The implements used to beat him included a bottle, which was later found to be broken. The offender was arrested. He made no comment in interview. The victim's mobile phone was later found at his home. CCTV footage of the locality showed the offender in the area wearing similar clothing to that described as clothing worn by one of the assailants. He was bailed following this offence. He was therefore on bail at the time of the offences with which we are more immediately concerned.
17. Both offenders have serious criminal records. The first offender has 20 previous convictions, two of which include offences against the person in recent times: grievous bodily harm in October 2007, for which he received a 12 month sentence of imprisonment; assault occasioning actual bodily harm in October 2008 for which he was sentenced to ten months' imprisonment. He was on licence for that offence at the time when he committed the two robberies and the burglary. In addition, he has 15 convictions for theft or theft-related offences, including a conviction for the burglary of a dwelling house in June 2007.
18. The second offender has 39 previous convictions. One relates to a conviction for assault occasioning actual bodily harm in September 2006, when he was also charged with possession of a bladed article in a public place. He received short sentences of imprisonment for these offences. Amongst others, he has convictions for threatening and abusive behaviour and assaulting a police constable. Since these offences were dealt with, he has been convicted of causing grievous bodily harm and sentenced to 15 months' imprisonment, to run concurrently with the sentences imposed at Swansea Crown Court in September 2009. His convictions include eight for property-related crime.
19. The pre-sentence report on the first offender stated that he had expressed remorse and had written letters of apology to his victims. The author of the report thought that the expressions of remorse were genuine. We have considerable reservations about that. The first offender is a professional criminal who knows perfectly well that an expression of remorse goes down very well when it comes to sentencing. On remand it was suggested that he had embarked on a significant programme of education and support. Nevertheless, the report assessed that he represented a high level of risk to the public generally because he remained susceptible to drug and alcohol abuse.
20. We are in receipt of a report on his progress in prison. According to this report he has put himself forward to engage in an intensive rehabilitation programme. He is working well with the drugs team in relation to his drug-taking habit and he is an enhanced prisoner. On the other hand, in May 2009 he disobeyed prison rules and attracted three days confinement. On 16 October 2009, for attempting, inciting or assisting in the receipt of a controlled drug, he was awarded a further 21 days' imprisonment. That is not progress in which we can have huge confidence.
21. The pre-sentence report on the second offender suggested that he blamed his conviction on the first offender. He denied playing any active part in these events. That is consistent with the description of the offences given by the victims. The author of the report believed that he was showing some awareness of the distress suffered by his victims, but that he did not fully understand the responsibilities that he had. A previous report for the breach of a Community Order dated 6 March had addressed the root cause of his criminal activity as alcohol abuse. The report assessed that the second offender was at medium risk to the public and to himself.
22. The submission on behalf of the Attorney General is that the sentences for the offences of robbery were unduly lenient. The submission on behalf of the offenders is that, granted that the sentences may properly be described as lenient, they were not unduly so. We have reached the clear conclusion that the sentences were indeed unduly lenient.
23. The Attorney General points to the following aggravating features. The offenders did not arrive by accident at the three properties in April. There was an element of premeditation and planning. The first offender did not take a dangerous weapon with him by accident. Although the second offender was not armed, he participated in the robbery and the later burglary, knowing that the first offender had with him a baseball bat. The only purpose for which that could be carried if it was not to be used to administer violence was to frighten and intimidate. The offences involved attacks on homes and threats of violence to householders within their homes.
24. There were here two robberies of individuals in their homes by a group of three men, two of whom have serious convictions for offences of dishonesty and violence and who at the time of the offences were subject to different forms of court orders. The home owners were confronted by this gang. In the first robbery the baseball bat was used directly to threaten and intimidate. In the second robbery the presence of the baseball bat was undoubtedly known to the householder who was the victim. We note that no actual violence was used. That leaves open the question as to what might have happened if the householders had resisted. It is plain that they were very frightened and seriously intimidated.
25. The Attorney General acknowledges the following mitigating factors. Both offenders entered early guilty pleas for which appropriate discount must be given. There is some suggestion of increasing maturity by Butler, although the material relied on in the context of the attempt to rid himself of his drug habit is less convincing when the full history of his behaviour while in custody is remembered. In Taylor's case there remains the fact, which is to his credit, that he stepped in to prevent or reduce the risk of any violence blowing up in the home of the victim of count 3.
26. Having examined the facts of this case and considered not only the current guidance of the Sentencing Guidelines Council but decisions of this court dealing with this form of robbery, Attorney General's Reference Nos. 38, 39 and 40 of 2007, Attorney General's Reference No 124 of 2008, and Attorney General's Reference No 72 of 2008, we have come to the conclusion that these sentences were indeed unduly lenient and that they should be increased.
27. In the case of the first offender, Wayne Butler, apart from ordering that the 136 days for breach of licence should be served first, we shall increase the sentence in respect of count 1 to four years' imprisonment and in respect of count 3 to two years' imprisonment, to run consecutively.
28. In the case of the second offender, Kevin Taylor, the sentence in relation to count 1 will be increased to one of three-and-a-half years' imprisonment. The remaining sentence in his case will be unaffected. The remaining orders made in the Crown Court, save where we have dealt with them expressly, will also remain unaffected.

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