The defendant's sentence of four years' detention in a young offender institution was not reduced as, although he had been making excellent progress in detention, this progress was not material upon which it was appropriate for the court to reduce the sentence.Appeal by the defendant ('B') against a sentence of four years' detention in a young offender institution pursuant to s.91(3) Powers of Criminal Courts (Sentencing) Act 2000 for a conviction on two counts of robbery by a jury at Oxford Crown Court on 7 February 2003. In 2002 B, who was then aged 16 years and 11 months, participated in a robbery. He drove two young men, aged 20 and 21, to an Oxfordshire village where B and his two friends attacked and robbed two men in a park under threat from a sawn-off shotgun. B played a lesser role in the actual robbery but afterwards drove the getaway car. B was apprehended as a result of DNA testing of some clothing that he had discarded at the scene. The other two robbers were never caught. B denied his guilt. The judge sentenced B on the basis that it had been a planned robbery and although B had not been carrying the sawn-off shotgun, he had been aware of it and its use in the offence. On appeal, B submitted that: (i) the judge had sentenced on the wrong factual basis as B had denied premeditation and had maintained that he had not known about the shotgun; (ii) the sentence imposed was out of line with three Court of Appeal authorities in which the court had taken as a starting point for its decision the proposition that a sentence of three years' imprisonment would have been appropriate for an adult committing that particular type of robbery; and (iii) the sentence was excessive having regard to the pre-sentence report and the progress which B had made whilst in detention.HELD: (1) The judge had been in the best position to interpret the evidence and he had sentenced on a basis that had been consistent with the jury's verdict. (2) The Court of Appeal authorities cited in support of B's appeal, Attorney General's Reference (No.44 of 1997) (1998) 2 CAR (S) 185, Attorney General's Reference (No.30 of 2001) sub nom R v Humphrey (2002) 1 CAR (S) 164 and Attorney General's Reference (No.28 of 2001) sub nom R v McCollins (2002) 1 CAR (S) 250, differed from the instant case in two important respects: (a) the offenders had pleaded guilty to the offence; and (b) those cases did not involve the use of a sawn-off shotgun. The presence of the gun was a significant aggravating factor. There was no discrepancy between the sentences in the cited authorities and the sentence that had been imposed in the present case. (3) Although B was making excellent progress in detention this progress was not material upon which it was appropriate for the court to reduce the sentence. (4) Despite his youth, B had an unenviable criminal record including a number of offences against the person. (5) The recent progress could be taken into account by the Parole Board when the time came for B to apply for parole.Appeal dismissed.

[2003] EWCA Crim 2599

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