Neutral Citation Number: [2018] EWCA Crim 1505
Case No: 201800532 A4 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Wednesday, 2 May 2018
B e f o r e:

LORD JUSTICE SINGH 

MR JUSTICE EDIS 

MRS JUSTICE MCGOWAN DBE 
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R E G I N A 
v 
LEE DAVID MACDIVITT

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Mr S Hanns (Solicitor Advocate) appeared on behalf of the Appellant
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J U D G M E N T Approved)
If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached.  This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person. 

1.	MR JUSTICE EDIS:  Lee David MacDivitt is 29 years old.  On 19 January 2018, in the Wolverhampton Crown Court, he pleaded guilty to an offence of robbery which had been committed on 21 March 2017.  On the same day, he was sentenced to 4 years and 8 months' imprisonment.  That sentence reflected full credit for his very early plea and thus involves a sentence before plea discount of 7 years. 
2.	The victim of the robbery was 21 years old.  She suffered quite severely with autism.  The robbery occurred just before 11.00 pm when she was in a bus station with her friend who was using crutches at the time.  She was carrying her handbag with a strap over her shoulder and had tucked the bag under her arm.  The appellant was hovering around her and she became aware of this.  He approached the two of them and without saying anything snatched the handbag.  Although she tried to hold onto it he was able to pull it away after the strap broke.
3.	She told the police who later attended that although she had suffered no injury, she did have some pain in her shoulder as a result of the pulling of the bag.  She was very shaken up by the incident and was very upset when the police arrived.  The bag and its contents were not recovered.  
4.	The appellant was shortly afterwards arrested and, as we have said, subsequently pleaded guilty at the first available opportunity.
5.	The appellant has previous convictions.  Up until September 2008, he had appeared on regular occasions in various criminal courts for various offences.  In September 2008, he received a total sentence of 6 years' imprisonment for a series of offences of robbery which resembled the present offence in some respects.
6.	He appears to have been released from that sentence in about 2011 or thereabouts and to have been free of offending until 2016.  
7.	In 2016, he began to commit offences again.  Between that point and the date of sentencing he appeared on five further occasions and was sentenced for various offences of theft which were all at a significantly lower level of seriousness than that involved in the present case.  A series of relatively short sentences of imprisonment were imposed on him.  
8.	There was a pre‑sentence report which showed that the motive for this offending was dependency upon class A controlled drugs.  The pre‑sentence report said that because of his use of drugs the appellant posed an immediate risk of harm to the public and the author of the pre‑sentence report said that the dangerousness threshold had been met.  
9.	When sentencing, the judge observed that the victim was particularly vulnerable, as was her friend.  He found that the appellant had no doubt seen these two young women on their own in the hours of darkness and decided to prey on them.  He observed that in the past the appellant had used weapons in order to threaten people and referred to the offending in particular in 2008 as an aggravating feature of the present case.  He referred also to the timing and location of the attack as further aggravating features.  
10.	The judge placed the case in the relevant guideline as a category 2B offence, which involves a starting point for a single offence, such as this was, of 4 years' custody and a sentencing range of between 3 and 6 years.  Principally it appears because of the previous offending in 2008 the judge decided that a sentence outside the range before reduction for plea was warranted and that is how he arrived at his sentence of 7 years' imprisonment before that reduction.
11.	Mr Hanns, who has argued this appeal on behalf of the appellant before us this morning and on paper, puts the matter very succinctly.  He submits, first, that too much reliance was placed on the previous similar convictions and draws our attention to the substantial gap which elapsed between the commission of the offences in 2008 and the offence with which the judge was dealing.  Secondly, in writing, although not in oral submissions before us this morning, he submits that insufficient regard was paid to the mitigation involving remorse and what is described as a positive approach.
Decision 
12.	We do not think that there is anything in the second ground and consider that Mr Hanns is entirely right not to seek to rely on that in his oral submissions to us.  The judge was aware of and referred to all matters of mitigation on which the appellant was entitled to rely.  In truth, apart from the plea, they did not amount to much.  The pre‑sentence report paints a bleak picture.  He received full credit for his plea and has no complaint there.  
13.	However, we do consider that the judge did place too much reliance on the previous offending when deciding to go outside the guideline range for this case.  The most relevant convictions were by this stage quite old and the present offence was a single offence where no significant injury was done, although the vulnerability of the victim and her friend make it a serious case warranting a substantial term of imprisonment.
14.	We establish no general principle by this decision about the circumstances when a sentencer may go up a bracket in the guidelines by reason of aggravating features.  What we do say, however, is that on the facts of this case it was unnecessary to go above the appropriate range.  It was entirely legitimate to go to the top of that range and therefore we allow this appeal by quashing the sentence of 4 years and 8 months and substituting in its place a sentence based on a sentence before plea discount of 6 years, which after full credit is given for the plea becomes a sentence of 4 years' imprisonment.  
15.	To that extent, this appeal allowed.
	 
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