Case No:
2017/0995/A1
Neutral Citation Number:
[2017] EWCA 849 (Crim)
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday 8 June 2017
B e f o r e
:
LORD JUSTICE HICKINBOTTOM
MR JUSTICE HOLROYDE
THE RECORDER OF BIRMINGHAM
HIS HONOUR JUDGE INMAN QC
(Sitting as a Judge of the CACD)
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R E G I N A
RAFIULLAH ALIKHEL
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Computer-Aided Transcript of the Stenograph Notes of
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Mr N Karbhari
appeared on behalf of the
Appellant
The
Crown
did not appear and was not represented
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J U D G M E N T
1.
MR JUSTICE HOLROYDE: On 18th August 2016 in the Crown Court at Woolwich, this appellant pleaded guilty to an offence of aggravated burglary. On 10th February 2017 he was sentenced to four years' detention in a young offender institution. By leave of the single judge he now appeals against that sentence, contending that it is manifestly excessive in length, in particular because the judge gave insufficient weight to the powerful personal mitigation which the appellant was able to put forward.
2.
The appellant was born in 1998 and is now 19 years old. He was only 18 when he committed the offence in April 2016. He had however already been convicted of a number of previous offences, including burglaries and robbery. The present offence was a very serious one. It was committed at about 3.00 am in a lodging house, part of which was being used for an illicit tobacco business. The appellant was one of several young men who forced their way into the building and broke into the individual rooms in search of tobacco and cash. Those engaged in the tobacco business were not in fact present, but other residents were and must have been terrified. As the sentencing judge observed, it was a well-planned operation carried out by a gang in which property of significant value was stolen and damage caused. The property stolen included one resident's savings of over 5,000 euros. That money was found in the appellant's pocket when the police arrived in time to detain the burglars as they were leaving the scene.
3.
The appellant pleaded guilty at an early stage and the judge rightly gave him credit for that early plea. Other accused stood trial, with the result that the sentencing of this appellant was delayed for a number of months.
4.
The learned judge provided a helpful indication of the way in which he had decided the appropriate sentence. He indicated the starting point which he had taken in accordance with the relevant sentencing guideline. He regarded the mitigating feature of the appellant's youth as being balanced out by the aggravating feature of the appellant's previous convictions. No complaint is made by Mr Karbhari on the appellant's behalf about either the starting point or the balancing of those two considerations.
5.
We observe that the judge then fell into an error of approach in that he gave the full credit for the guilty plea before considering the impact of the personal mitigation. That, with respect, was the wrong way around. The judge should have considered all the aggravating and mitigating features in order to reach his conclusion as to the appropriate sentence after a trial, and should then have given the appropriate credit for the guilty plea as the final step in the process.
6.
Separately from that error of approach, it is submitted that the judge gave insufficient credit for the personal mitigation. Counsel has set out the relevant matters in his most helpful advice which we have read with care. We have also read with care the various documents on which he relies. He has invited our attention to the relevant case law including in particular
D
[2011] 1 Cr. App.R(S) 69 and
Hood
[2013] 1 Cr.App.R (S) 49.
7.
In the particular circumstances of this case, we think it important to have especial regard to the young age of the appellant when assessing the weight to be given to his personal mitigation. Mr Karbhari's submissions persuade us that, in addition to the error of approach which we have identified, the judge gave less weight than he should have done to the overall force of the mitigation, with the result that the sentence was manifestly excessive in length.
8.
Taking the same starting point as did the judge, but giving greater weight to the mitigation, we conclude that the sentence of four years' detention should be quashed and that a sentence of two years eight months' detention should be substituted. The appeal accordingly succeeds and is allowed to that extent.