No: 201802973/A2 
Neutral Citation Number: [2018] EWCA Crim 2196 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
  Royal Courts of Justice
Strand
London, WC2A 2LL 

Thursday, 23 August 2018 
 
B e f o r e:

LORD JUSTICE SIMON

MR JUSTICE FOSKETT 

MR JUSTICE WARBY 
 
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988 

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R E G I N A 
v 
DANIEL BRIAN RUSHWORTH 

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Mr J Smith appeared on behalf of the Attorney General
 
Mr E Renvoize appeared on behalf of the Offender

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Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

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J U D G M E N T
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LORD JUSTICE SIMON:  

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1.	The Solicitor General seeks leave to refer to this court a sentence passed on the offender under section 36 of the Criminal Justice Act 1988 as being unduly lenient.  We grant leave.  

2.	The offender is Daniel Rushworth, aged 45, and the sentence was passed in the Crown Court at Norwich by Mr Recorder Wilson in respect of a single count of robbery.  The offender had been jointly charged with a man named Roger Gamble.  The matter was listed for a plea and trial preparation hearing on 7 June 2017 when the offender pleaded not guilty.  On 2 October he served a defence statement denying the offence.  On 30 October, on the morning of the trial and after the jury had been sworn, he sought a Goodyear indication from the Recorder as to the maximum sentence that would be imposed if he pleaded guilty: see Goodyear [2005] 1 WLR 2532.  The Recorder indicated that the maximum sentence would be a term of six years' imprisonment.  The offender then pleaded guilty to the offence on re‑arraignment and was convicted on that plea at the judge's direction.  There was no basis of plea.

3.	The matter was then adjourned with the offender remanded in custody while his co‑defendant was tried.  Gamble was acquitted of the robbery offence; and so it was that, nearly eight months later, on 22 June 2018 the offender came to be sentenced by the Recorder.  He was sentenced to a term of two years' imprisonment suspended for two years, with a drug rehabilitation requirement and an alcohol treatment requirement.  In addition, a restraining order was made prohibiting contact with the victim of the robbery.  The Recorder also made a direction that the period on remand should not count towards the sentence.  
4.	The indictment reflected a robbery at the home of the victim, Mark Winner on 8 May 2017 by the offender acting with another man.  All three men were known to each other.  As we have already noted, Gamble was acquitted at his trial.  

5.	At around 3.15 during the afternoon of 8 May, the victim was alone in his home when he heard a knock at the door.  He answered the door to find the offender and another man.  They walked into his flat. Both men seemed drunk.  Although the offender was initially calm, he quickly became aggressive and accused the victim of paying someone to do him in.  The victim denied this.  

6.	The offender and his accomplice then became aggressive.  The accomplice grabbed the victim by the throat and squeezed hard.  He also wrenched his head backwards.  The offender produced a large black handled kitchen knife from his pocket and held it in front of the victim.  He was shouting and making stabbing motions to the victim's leg, without inflicting injury.  He then threatened to stab the victim and 'slice him up'.  The victim pushed the knife away and in doing so sustained a small cut to his knuckles.  Following this, the offender held a knife to the victim's neck for 30‑40 seconds, causing him to fear for his life, and continued to shout at him.  After removing the knife from his neck, the offender struck him on the head with the handle of the knife with sufficient force to break it.  The broken off part of the knife handle was later found by police at Mr Winner's address.  

7.	Both the offender and his accomplice then demanded money from the victim.  The accomplice took his mobile phone worth around £55, and a tablet computer worth about £70.  The offender and his accomplice made the victim, who had been in his pyjamas, get dressed and told him that they would have to go to a cashpoint to get money.  Mr Winner described being terrified.  After leaving the flat he was accompanied by the offender and his accomplice but managed to escape, and ran to a police station to report what had occurred.

8.	The tablet was given by the accomplice to a neighbour who subsequently returned it to Mr Winner.  The phone was not recovered.

9.	The offender was arrested at his home address shortly after this.  On a kitchen worktop the police found a knife with a broken handle which matched the fragment recovered from the victim's address.  In interview he said he knew nothing about the offence, had been drinking whisky and wine on the night in question and could not remember what he had been doing at the time, as a result of the amount he had drunk.  He denied any involvement in a robbery or the use of a knife.  He added that Mr Winner was his drug dealer.

10.	There was a victim personal statement from Mr Winner.  He said that he had been devastated at losing his phone and had been afraid for his life on the night of the robbery.  He now finds it difficult to leave his house, especially at night.  

11.	The offender had been convicted on 24 occasions for 88 offences dating back to 1989.  The majority were offences of dishonesty.  Among the most relevant to the sentence for this offence was a sentence in February 2005 at Norwich Crown Court to a drug treatment and testing order for three offences of burglary of a dwelling and one offence of theft (shoplifting).  This order was subsequently revoked and replaced by a sentence of two years' imprisonment.  In August 2010, he had been sentenced in the Magistrates' Court to a 12 week suspended sentence of imprisonment with a six-month drug rehabilitation requirement for nine instances of fraud, possession of class A and class B drugs, breach of a conditional discharge and making off without payment.  In December 2014 the offender had been sentenced in the Magistrates' Court to a supervision order with an alcohol treatment requirement for possession of a bladed article and theft.  The robbery offence with which we are concerned today indicated a significant escalation in criminal activity.

12.	There was no pre‑sentence report before the court.  In his sentencing remarks, the Recorder referred to the Sentencing Council Definitive Guidelines on Robbery and the specific guideline dealing with robbery in a dwelling.  He characterised the offending as being of high culpability, Category A, because there was the production of a knife to threaten violence.  He characterised the harm as Category 3 because there was minimal physical or psychological harm, the obtaining of relatively low value goods and limited disturbance of the property.  For Category 3A offending the guidelines indicate a starting point of five years and a range of four to eight years.  The Recorder sentenced on the basis that the nature of the offence merited a sentence of four years but was persuaded that because the offender had spent 14 months on remand and had behaved well during that remand period, he should be sentenced to a term that would allow for his immediate release, but "on strict conditions".  As we have indicated, the Recorder also ordered that the time on remand should not count towards that sentence.
13.	Mr Smith, who appears for the Solicitor General, submits that there are two relevant factors which aggravated what was a robbery in the victim's home.  First, the use of a knife, and second, more than one person involved in the crime.  He recognises that there were also mitigating factors which were to be weighed in the offender's favour ‑ his guilty plea (albeit at a late stage) and his drug and alcohol addiction.  He draws attention to the fact that the offender relied at the sentencing hearing on the fact that he had spent 13 months on remand awaiting sentence.  However, he does not accept that this is a mitigating factor.  He submits that the sentence failed to take proper account of the nature of the offence of which the offender had been convicted and the aggravating features of the case.  In particular, the offending fell within Category 3A of the guidelines.  The appropriate sentencing bracket for this offence was therefore four to eight years' imprisonment with a starting point of five years after a trial.  In any event, the imposition of a suspended sentence was inappropriate as, in the event of a breach, the time served on remand by the offender would automatically count against the time to be served, resulting in immediate release: see Archer v Governor of HMP Low Newton [2014] 2047 EWHC Admin at paragraphs 8 to 13.  It follows that there would have been no effective sanction for the breach of the order.  As a consequence, he submits that the sentence imposed was unduly lenient.

14.	For the offender, Mr Renvoize, who did not appear below, acknowledged frankly that the Recorder had been beguiled by a submission on behalf of the offender that was wrong in principle.  He accepted the submission made on the basis of Archer v The Governor of Low Newton.  He submitted nevertheless that the court should take into account there has been a degree of compliance with the sentence that was passed on him by the Recorder.
15.	We have seen a pre‑appeal report which indicates that the offender has been attending appointments with the Probation Officer and those responsible for the supervision of the sentence.  However, it appears that there are serious concerns about his continuing to take drugs.  He has tested positive for opiates in each weekly test and missed a drugs rehabilitation requirement review at the Crown Court on 19 July.  

16.	This offence of robbery in the home with the use of a knife was plainly Category 3A offending with a starting point of five years and an indicative range of four to eight.  We are not persuaded that the starting point should have been reduced before credit was given for the plea.  The offender had a poor record and had failed to respond to prior sentences passed.  He had also carried out the robbery with another.  Although the Recorder was persuaded to sentence on the basis of a four year starting point, and take into account time spent on remand, and pass a sentence of two years suspended for two years, ordering that time served should not count against that sentence, he was plainly uneasy with this approach.  In our view, he was right to be uneasy.  It was an erroneous approach, as is now acknowledged on behalf of the offender.  In our view the starting point should have been a term of five years (60 months) and with 10 per cent credit for the plea the sentence should have been a term of 54 months (four years and six months).  We would allow a further month to take into account the fact that he has carried out part of the sentence.  It follows that in our judgment the suspended sentence of 24 months was unduly lenient.  Accordingly, we quash that sentence and substitute a term of four years and five months in respect of which the period on remand will count.