[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Attorney General's Reference No. 147 OF 2004 [2005] EWCA Crim 845 (06 April 2005) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2005/845.html Cite as: [2005] EWCA Crim 845

[New search] [Printable RTF version] [Help]

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Wednesday, 6 April 2005

1. LORD JUSTICE ROSE: The Solicitor General for the Attorney General seeks the leave of the court under section 36 of the Criminal Justice Act 1988 to refer sentences said to be unduly lenient. We grant leave.
2. The offender is 31 years of age, having been born in April 1973. On 28 September 2004 he pleaded guilty to a count of assaulting a former female partner, occasioning her actual bodily harm, a count of assault with intent to rob and a count of common assault. On 11 November he was sentenced by HHJ Fish at Manchester Crown Court to a Community Rehabilitation Order for two years, with a condition of attendance at a domestic violence programme, that sentence being imposed concurrently in relation to each of the counts to which the offender had pleaded guilty.
3. The circumstances were these. The offender had a relationship with a woman called Paula Millington for a period of some 16 months. In July 2003 they had a child. Thereafter their relationship broke down and, in December 2003, an injunction was granted at the Manchester County Court preventing the offender from contacting Miss Millington or attending at her address. He did not comply.
4. In consequence, in March 2004 he was imprisoned for his breach of that injunction for 28 days. On 30 May 2004 at about 6.30 in the evening, he went to Paula Millington's home. She was mowing the lawn. Their son was in a baby walker nearby. She went into her home to obtain a drink. The offender confronted her. She tried to run upstairs to activate the panic alarm with which she had been provided by the police. The offender seized her clothing, dragged her downstairs and took her into the living room, shouting at her as he did so. He forced her onto the settee so that her abdomen was over the arm of the settee and he forced her head into the seating area. As she was being held in that position, the offender's dog bit her on the shoulder, on her side and on her calf, causing puncture wounds in those places. She managed to free herself. The offender then seized her jaw and forced her head back. Again she freed herself and, at that stage, the offender tried to seize her again, but the attack was interrupted by the arrival of her nephew and she escaped.
5. In addition to the puncture wounds inflicted by the dog, she sustained an abrasion to her right shoulder and a red mark to the corner of her left eye. The offender was arrested in connection with this offence after he had committed the assault with intent to rob on 12 July, to which in a moment we shall come. When he was interviewed about this assault, he made no comment. He entered a plea on a written basis, indicating that he had not set the dog on the woman, nor instructed or encouraged it to bite her. That was accepted by the prosecution.
6. We turn to the more serious offences. At about 6 o'clock on the evening of 12 July 2004, an Afghan student, called Daod Armadi, went into a local shop on Chester Road in Stretford, Manchester. The offender approached him and spoke to him. The shopkeeper intervened and asked the offender to leave. When the student left the shop, the offender again approached him. He put his arm around him and asked him for £5. He did not give him any money. Thereupon the offender punched Mr Armadi in the face. Mr Armadi ran off towards his flat in a block of flats nearby, and he got into the lift. The offender got into the lift with him and pressed the stop button. He then punched Mr Armadi in the face. Mr Armadi got out of the lift. The offender punched him for a third time in the face. He then took out a 20cm knife with which he threatened to stab Mr Armadi. Mr Armadi managed to get away and summon the police, who, on arrival, arrested the offender on the 14th floor of the block of flats. As he was brought out, the offender kicked out at Mr Armadi, striking him at waist height. When he was interviewed about these matters he made no comment. He entered a written basis of plea in which he accepted the facts which we have outlined.
7. On behalf of the Solicitor General, Mr Whittam draws attention to what he submits are the following aggravating features in relation to the assault with intent to rob and common assault. First, there were three blows struck by the offender, demonstrating his persistence, and those blows were reinforced by the threatening production of a knife. Secondly, the offender had pursued the victim into the lift in the way which we have described and had sought to prevent him reaching the safety of his flat. Finally, the offender, after he had been arrested, again assaulted his victim.
8. So far as the assault occasioning actual bodily harm is concerned, Mr Whittam draws attention to the aggravating feature arising from the fact that the assault was committed in breach of the civil injunction previously granted. Mr Whittam draws attention to the mitigation to be found in the offender's pleas of guilty and a favourable pre-sentence report, which suggested that the offender was motivated to address his offending behaviour. As it turns out, that motivation appears to have been short-lived because there is, from the probation officer, a supplementary report prepared for this court in which it appears that, during the period since he was sentenced, the offender has failed to comply with his probation appointments. Indeed, he has managed to attend only three out of some eight weekly appointments. The comment is made in the supplementary report that the offender's unwillingness to comply with the basic requirements of reporting gives rise to an impossibility to address the issues of concern which, no doubt, had motivated the terms of the initial probation report and the sentence passed by the learned judge in the court below.
9. It also appears that the offender failed to attend his induction interview in respect of his domestic violence groupwork programme. There are other comments in the supplementary report which it is unnecessary to rehearse which do not reflect well upon the offender.
10. Mr Whittam draws attention to a number of authorities: Attorney General's Reference Nos 4 and 7 of 2002 [2002] 2 Cr App R (S) 345; Attorney General's Reference No 105 of 2002 [2003] 2 Cr App R (S) 319; Attorney General's Reference Nos 150 and 151 of 2002 [2003] 2 Cr App R (S) 658, and Attorney General's Reference No 64 of 2003 [2004] 2 Cr App R (S) 106. In the light of those authorities, Mr Whittam submits that it is plain that, save in wholly exceptional circumstances, immediate custody must be the penalty for offences of robbery committed with violence or threats of violence from a lethal weapon. His general submission is that the sentences passed were unduly lenient, and failed to reflect the gravity of these offences and the aggravating features to which we have referred.
11. On behalf of the offender, Miss Kitchen rightly concedes that the sentence passed by the learned judge was a lenient one and that custody would have been, in the court below, the most likely outcome. She submits that the learned judge had a fine balancing exercise to perform in relation to the present and future interests of the public so far as this offender is concerned. She accepts, inevitably, that the offender's response to the sentence passed upon him by the learned judge has not been good. She relies upon the principle of double jeopardy, that is to say that the offender is, by the present process, being sentenced a second time for the same offence.
12. All of these matters we take into account. We would have expected in the court below a total sentence of at least four years' imprisonment. We would have expected a short term to be imposed for the assault occasioning actual bodily harm, consecutively to a significantly longer term for the offence of assault with intent to rob, in relation to which we would have expected a shorter concurrent term for the offence of common assault. It follows that the sentence passed in the court below was, in all respects, unduly lenient, and we have no doubt that the sentences are ones with which this court should interfere.
13. Taking double jeopardy into account, taking into account the failure of the offender to respond to the sentence which was passed upon him, but also taking into account the fact that he is now going to go into custody, whereas a non-custodial sentence was initially imposed upon him, we take the view that, at this stage, a total sentence of three years is appropriate.
14. We quash the sentences passed below. The sentence will be two and a half years for the assault with intent to rob and six months concurrently for the common assault on the same victim. There will be a consecutive sentence of six months for the assault occasioning actual bodily harm on Miss Millington. That sentence of three years will start to be served when the offender surrenders to custody. We order that he surrender to custody by noon tomorrow.