Neutral Citation Number:
[2013] EWCA Crim 1175
Case No:
2013/0691/A1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday, 18 June 2013
B e f o r e
:
LORD JUSTICE ELIAS
SIR DAVID MADDISON
THE RECORDER OF BRISTOL
HIS HONOUR JUDGE FORD QC
(Sitting as a Judge of the CACD)
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R E G I N A
v
ASSAD YAROW
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Computer Aided Transcript of the Stenograph Notes of
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Mr H Grayson (Solicitor Advocate)
appeared on behalf of the
Appellant
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J U D G M E N T
1.
LORD JUSTICE ELIAS: On 4th December 2012 in the Central Criminal Court before His Honour Judge Joseph QC, the appellant pleaded guilty to two offences of robbery and three offences of fraud. He was sentenced on 16th January 2013 by His Honour Judge Morris to five years' detention in a young offender institution on each of the robbery counts and to 18 months' detention in respect of each of the fraud counts, all these sentences to run concurrently. Therefore the total sentence was five years' detention in a young offender institution.
2.
There were two co-accused, Morgan Meragan and Mohammed Abdullahi. They each pleaded guilty to the same counts and each received the same sentence of five years' detention in a young offender institution. He now appeals against sentence by leave of the single judge.
3.
The background was this. The first robbery occurred on 10th June 2012. At around 2 o'clock in the morning Avkash Halai, who was in his early twenties, was on his way home from a night out with friends in London. He was drunk. He was approached by the defendants. One asked: "What have you got for me?" Mr Halai replied: "Nothing". He was punched in the face by all the defendants. He remembered lying on the floor in a park with a group of males going through his pocket. His wallet containing his bank card was taken and his PIN number was demanded. He refused to provide it and was punched further in the face. One of the group said "jook him" - which he knew meant stab him. One of the men then took something out of his trouser pocket and put it up his sleeve. Mr Halai believed that it was a knife and he was scared. The male approached him and sat across his chest. Again his PIN number was demanded with a threat that they would "jook" him if he gave the wrong number. He complied with the request. Some of the males ran off in order to check the number while two remained with Mr Halai. The remaining men received a telephone call and went to leave. Before they did so one of them stole Mr Halai's watch and a gold ring. The property taken from him was valued at around £1,200. He sustained certain injuries, namely marks to his nose, left cheek and the side of his head, and some psychological effects of this attack: he is apprehensive about going out at night. His debit card was subsequently used to withdraw £300. The three defendants were seen on CCTV at the cashpoint. They then attempted to use the card in order to purchase expensive champagne and other goods to the value of just over £1,000 at a supermarket. That was unsuccessful so they reduced the amount of goods to £900. That attempt also failed because by then the card had been reported as stolen.
4.
The second robbery occurred some 10 days later on 20th June 2012, again in the early hours of the morning. Killian Martinez left a public house in a drunken state. He boarded a bus in Tottenham Court Road. The defendants followed him. They got on the same bus. They waited until he got off the bus to take another bus to his home and as he was about to board the second bus, one of the defendants grabbed him by the throat and threw him on the ground. He was kicked and punched by all three defendants. His watch and his silver neck chain which was of sentimental value were removed, along with a bank card and £35 in cash from his wallet. He suffered bruising and was left feeling anxious.
5.
The defendants were identified by the CCTV footage. They all initially made no comment at interview.
6.
The appellant was 18 at the time of the conviction and sentence but just short of his 18th birthday when these offences were committed. He had appeared before the court on three previous occasions for four offences between October 2011 and August 2012 including for possession of drugs, theft and failing to surrender. Of the other two defendants, one was 18 months older than he was and the other was somewhat older than that.
7.
The judge when sentencing described the offences. The second robbery, he said, was a brazen display of violence as traffic was going past when the attack was carried out. It was common ground that the offences fell into category 2 of the sentencing guidelines for street robberies and for such robberies there is a starting point of four years and a range of two to seven years. That would be the starting point for an offence committed by a single adult defendant of good character. The judge, perhaps generously, did not have regard to their convictions because they were of a somewhat different character. The judge concluded that there was no reason to distinguish between the appellant and the other defendants who he considered to be of similar age. They had all played equal roles and they should all be sentenced in the same way.
8.
The judge in sentencing identified a series of aggravating factors. He said this:
"First this was a group offending by the three of you. Second there was clear premeditation and planning behind them particularly in relation to the robbery in count 5. Thirdly these offences were committed at night. Fourthly you targeted individuals who were drunk and therefore would be more vulnerable to attacks. Fifthly in count one there is the conduct leading to the victim Mr Halai to believe he was going to be stabbed and might die and finally there were two such offences not a single offence.”
In addition as far as the appellant is concerned, these offences were committed during the operational period of a youth rehabilitation order which had been imposed only some two weeks before the first of these robberies.
There can be no doubt that for adults these would have been appropriate sentences. Indeed the judge said that he was giving full credit for the guilty plea and he took into account their ages. This means a starting point of seven-and-a-half years for this range of offences and we think that for older adults it would certainly have been more. The only point pursued in this appeal is that the judge ought to have given more credit than he did for this particular appellant because he was under the age of 18 at the time the offence was committed.
9.
We were referred to the authorities of
Ghafoor
[2003] 1 Cr.App.R (S) 84 and
Bowker
[2008] 1 Cr.App.R (S) 72 for the proposition that where somebody was 17 at the time when the offences were committed, that would be a significant factor to take into account in the sentencing exercise. The position is not that the defendant must then be sentenced in accordance with any guidelines applicable to young offenders, but the cases of
Ghaffoor
and
Bowker
do confirm that in those circumstances regard should be had to the sentence that would have been appropriate had they been sentenced in that way, and that it would be a powerful factor, albeit not the sole determining one, in deciding what their sentence should be. Counsel submits that in this case the judge failed to have regard to that principle.
10.
We note that in
Bowker
the position was that the maximum sentence for somebody who had been convicted at the age of 17 was then lower than somebody who was convicted at the age of 18. That is not the position here. Counsel does, however, point out that with respect to robbery the guidelines for somebody who is convicted of robbery at the age of 17 show a lower range than for those applicable to someone convicted over that age -- they are one to six years with a starting point of three years as opposed to two to seven years with a starting point of four.
11.
We have carefully considered this argument. Plainly there are going to be many cases where it will be appropriate to draw this distinction. But in this case we note that there was a discussion between counsel and the judge before he sentenced, and this point was raised directly with the judge. He had in mind the
Bowker
case. He was not obliged to give effect to the principle, merely to have proper regard to it. As we have said, it is often a powerful factor to take into account when considering the appropriate sentence but it is not a binding one. The judge was aware of it. He obviously would have taken it into consideration. He decided that looking at the records of these individuals and bearing in mind the serious offences for which they all played an equal role, he felt it appropriate to sentence them in the same way. No doubt he had partly in mind that the appellant was in breach of the recently imposed community order and was close to 18 when the offences were committed. The question is not whether other judges might have done something different. It is whether we can say that in the circumstances this was an error in principle or that overall the sentence was manifestly excessive. We do not think it was. Accordingly, the appeal fails.