Practice and Procedure


PUBLISHED October 3, 2003

In all the circumstances the total sentence of five years imprisonment was unduly lenient and a sentence of 12 years would be substituted made up of eight years imprisonment with an extended period of four years.Application by the Attorney-General to refer, under s.36 Criminal Justice Act 1988, a total sentence of five years' imprisonment following conviction for robbery, indecent assault on a female, burglary, attempted burglary and intimidation of a witness. The defendant ('F') was sentenced by HH Judge Phipps at Liverpool Crown Court on 13 May 2003. The two victims ('S' and 'G') lived in the same block of flats and were vulnerable due to illness and alcohol dependency. F met S three weeks before committing the offences. On 18 September 2002 he went to S's flat and asked her for money. When she refused he forced her onto the bed sat astride her and took money from her bra. G had money taken from him whilst he was walking upstairs. On another occasion S cashed her giro at the post office, F waited for her, seized her hair and kicked her flat door open. Again she was forced onto the bed and money taken from her bra. The locks on S's door were changed, F came round and banged and kicked the door trying to gain entry. He was arrested and denied the offences and released on bail with a condition not to contact S or to go near the flats. On 10 November 2002 he approached S from behind, held her around her neck, dragged her into the street and threatened to kill her if she did not drop the charges. He was arrested and again denied the offence. The Attorney-General referred the sentence as unduly lenient given the aggravating factors: (i) the offences were carried out by a physically able defendant on older and weaker victims who were unable to resist attacks; (ii) the robberies were carried out where the victims lived and involved the use of physical force and indecent interference; (iii) the offences amounted to a campaign against the victims; and (iv) there was further intimidation after he was bailed. In mitigation was the fact F had suffered abuse as a child, he had been injured at Hillsborough, he was alcohol and drug dependent but was now drug and alcohol free. F contended that he was not physically capable as he was subject to the influence of large amounts of alcohol. He accepted he targeted the victims but it was not a campaign calculated to terrorise.HELD: (1) F had 68 previous convictions dating from 1982. He had been released from prison in March 2001 after serving part of a six and a half year sentence for robbery and theft. The sentence expired on 7 August 2002 which was just five weeks before the commission of the first of the present offences. It was noted that the previous robbery had also involved a woman living alone who he threatened to shoot and rape. (2) The total sentence imposed was plainly unduly lenient. These were serious offences where, in the court below, a sentence of ten years in custody would have been appropriate. Further, given the circumstances, the judge should have imposed an extended sentence under s.85 Powers of Criminal Courts (Sentencing) Act 2000 giving a total sentence of 14 years. Taking into account double jeopardy a total sentence of 12 years would be substituted made up of eight years imprisonment with an extended period of four years.Application allowed. Leave to refer granted.

[2003] EWCA Crim 2737