No:
2009/2210/A4
Neutral Citation Number:
[2010] EWCA Crim 357
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 18 February 2010
B e f o r e
:
THE VICE PRESIDENT
(LORD JUSTICE HUGHES)
MR JUSTICE MACKAY
MR JUSTICE LLOYD JONES
- - - - - - - - - - - - -
R E G I N A
v
MICHAEL ROE
- - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street  London EC4A 2DY
No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - -
Mr M Rickard
appeared on behalf of the
Appellant
Mr G Curtis-Raleigh
appeared on behalf of the
Crown
- - - - - - - - - - - - -
J U D G M E N T
1.
THE VICE PRESIDENT: This is an appeal with leave against a sentence of imprisonment for public protection with a minimum term of four years based on a notional determinate term of 12 years. The sentence was imposed for an offence of robbery committed with some violence when the defendant and a co-accused broke into the home of a single woman living on her own in the evening.
2.
We have had the advantage of some general discussion. It is not necessary to analyse sentences for this kind of offence in any detail, but we do draw attention to this. When framing its definitive guideline for offences of robbery, the Sentencing Guidelines Council deliberately abstained from attempting any guideline for what it called categories 4 and 5 of robbery which included "4. Violent personal robberies in the home" - see page 3 of the definitive guideline. At page 15 of the same document the Council referred to a sub-group of offences of such a kind for which a general range of something like 13 to 16 years after trial will be appropriate involving high levels of violence. The passing reference in the footnote was to the case of
R v O'Driscoll
(1986) 8 Cr.App.R (S) 121. That was a very serious case in which a sentence of 15 years' imprisonment after trial was upheld as long ago as 1986. The victim was 80 years of age. He had plainly been targeted as a vulnerable and potentially profitable victim. He was attacked by two men in his home. He was tortured by having a lighted gas poker applied to his face. He was tied up and gagged and by the time he was eventually released he had injuries which included fractures to the skull and to his right leg.
3.
Not all cases of robberies committed in the home approach that level of gravity or that level of sentence. It seems to us there is very good reason for the Council abstaining from any attempt to pigeon hole offences of this kind because the range of conduct which can be described as robbery in the home is so wide that any guideline would be likely to be so broad as to be of very little assistance to courts. Moreover, offences involving in due course some theft and violence in the home may sometimes involve other offences differently charged. They may involve offences of violence to the person, they may be originally burglaries or they may be the pursuit of some kind of underlying personal dispute. Those are but examples; there are many others.
4.
It follows that judges must in this field be left to assess each case individually. That is after all the function of a sentencing judge and it is not to be expected that the provision of guidelines will provide in every possible situation a substitute for the essential exercise of judgment which is rightly committed to experienced trial judges.
5.
It is certainly clear that the fact that a robbery takes place in the victim's home and that his home has been invaded makes the offence worse. It is undoubtedly true that the record of the defendant, if significant, will make the offence worse. It is plainly true that repetition of offending needs to be marked by increased sentencing. Beyond those very general observations it is very difficult to say more. At the lower end of offences of robbery within the home there are plainly some in relation to which a court can properly look for some kind of appropriate relationship to the prevailing level of sentencing for street robberies or other robberies. That was the approach adopted by this court in
Attorney General's Reference Nos 38 to 40 of 2007 (Crummack and others
)
[2007] EWCA Crim. 1692
,
[2008] 1 Cr.App.R (S) 56
. That, however, was a case of very limited violence. There were punches (two), in effect pushing the householder back into a chair.
Attorney General's Reference No 124 of 2008 (Doran
)
[2008] EWCA Crim. 2820
, was case of targeting the elderly but also one in which the violence was negligible. At the upper end of the scale are cases such as
O'Driscoll
itself, cases such as
Purcell
[2008] EWCA Crim. 894
and, strikingly, only two days ago, cases such as
Morris and Long
decided by this court differently constituted on 16th February 2010. In that case there were no less than eight particularly violent robberies, four of which took place through the invasion of the victims' homes, the previous record of the defendants was considerable and in due course the appropriate starting point after trial, this court ruled, would have been as much as 20 or 22 years. That demonstrates the kind of range which these cases may demonstrate. We refer further in passing to the case of
Attorney General's Reference Nos 81 and 82 of 2009 (Butler and Taylor
) decided by this court, again differently constituted but led by the Lord Chief Justice, on 10th February. That was a case of two robberies for one defendant and the single for another. A baseball bat was taken and threats were made. The background to the invasion of the house was not an attempt at theft but some kind of running dispute between the defendants and the householders, although robbery ensued. The defendants had bad records. There was no actual violence involved. The starting point after trial for the man who committed two offences was nine years and for the other a little less.
6.
Whilst it is true that at the lower end the approach of the court in
Crummack
of looking for guidance to some kind of relationship with other offences of robbery will be appropriate, it is impossible to say that it is always helpful to look for any such relationship. In cases at the more serious end, and as we shall demonstrate in this case, any attempt to look for a sensible relationship between the facts of this kind of offence on the one hand and on the other a confrontation in the street backed up by a small degree of violence or the production of a stick in order to steal a mobile telephone is fruitless. There is no such relationship, save conceivably striking dissimilarity.
7.
With that very general background we turn to the present case.
8.
At about 7 o'clock in the evening on a Saturday in April 2008, the householder, who is a young woman in her mid-twenties, was in her own flat. The defendant and his partner broke in to the flat. It is to be assumed in their favour that they did not know that it was occupied. They had been knocking on doors plainly with a view to stealing and it is to be assumed that they thought they had found an empty flat. They had not. But they did not leave when they found the householder at home, they went on to commit a very serious offence of robbery. This was targeted burgling. They were drunk, they were living on the street and they had no money. It is said that they were desperate for money.
9.
This defendant seized the householder, pulled her out of the living room and put her in her bedroom. He told her to get onto the bed. It is right to say that at that stage he said that he was not going to touch her but just wanted her money. If the case had stopped there it might have been at the lower end of the type of case we are considering. But it did not. He dragged her around the house from room to room, making her help him search for any items of value. In the meantime his partner and accomplice, Susan O'Brien, was also ransacking the house and becoming increasingly noisy and aggressive. She, in front of the defendant and the householder, used inflammatory language. She told the unfortunate householder: "Find the fucking bag or I'll kill you, you bitch." She threatened: "I'm going to fucking stab you." When the applicant found a bag that he had touched he forced the householder to wipe her hands all over it, apparently to remove any forensic traces.
10.
All that would have been terrifying enough for any young woman in her own flat alone in the evening with increasingly excitable invaders. But she was then put into one of the bedrooms, she was tied by her hands behind her back and her feet were also tied; she was put face down on the bed, her engagement ring was forced from her finger. In the meantime she had heard the female burglar say that she ought to be made to take her clothes off. It is unsurprising that she imagined she had got the kind of couple who were going to add to theft rape or other humiliation. In fact that did not happen, but she thought it was going to. Eventually the defendant's woman partner said: "We're going. If you try to come downstairs within 15 minutes we'll be waiting for you and we'll kill you." She had been reduced to the point at which she had begun to wonder whether she could jump through the window and survive the fall.
11.
It is right to say that her description of events makes it clear that the noisier and more obviously aggressive of the pair was the woman. But this was a joint burglary. It was the defendant who either alone or together tied the woman up. Any reassurance that might have been read into his original assertion that the victim was not going to be touched had long since been falsified and he must bear his share of responsibility for what was done by the two of them together.
12.
It is not too much to say that the violence and the threats combined will have been literally terrifying to this woman. They took whatever they could get their hands on including, as we have said, her engagement ring. They also took a number of other items which had long been in the family and which had particular sentimental associations for her so that their replacement even by insurance is no replacement at all. They also took a laptop that had confidential work information on it, so she had the embarrassment of having to try to deal with the consequences of that. More significantly still, and unsurprisingly, the impact on her personally was clearly considerable. She became nervous and frightened. She found herself worried as she was out and about. The experience so altered her that her relationship with her boyfriend was ruined and she felt, again entirely understandably, that she could not stay at the flat and so she lost her home and had to find somewhere else.
13.
Mr Rickard, who has presented the defendant's case with realism and no little care, reminds us that the defendant's personal position at the time savoured of some desperation. His parents both had cancer, he had not long arrived from Ireland where he had lived, he and his girlfriend were living on the streets, she had very recently had a miscarriage and they had no money.
14.
In this country he had some old convictions from the 1990s, which however demonstrated that he was a burglar then. Rather more significantly, in Ireland he had been convicted (exactly when is not clear) of false imprisonment, aggravated burglary and robbery. That, on the information which derived from the Irish police, had involved him burgling a house, producing a kitchen knife in the course of doing so, forcing the owner to take him round the house to search for valuables and then tying him up. In addition to that it had involved waiting for the householder's wife to come back and tying her up as well when she did. All that had been done at a time when there were three children in the house, one of whom apparently would have seen what was going on. None of those facts was in dispute.
15.
The defendant was an alcoholic. There was a long history from childhood onward of what began as a conduct disorder, that moved into delinquency and became habitual offending, mostly in aid of acquisitive crime. There was, according to a psychiatric report before the judge, no identifiable psychiatric condition, although we understand that the defendant himself has since asserted, possibly on the basis of something said to him by somebody (whether in authority or not we are not sure) in prison, that he may have bi-polar disorder. The court considering the application for leave did not believe that it was arguable that the judge was not entitled to take the view that the defendant was within the dangerous offender provisions of the
Criminal Justice Act 2003
and we think we have said enough to indicate that there is no possible reason to depart from that view.
16.
The remaining question is whether a starting point of 12 years after trial was manifestly excessive for this offence by this offender. We are unable to agree with the elegantly phrased invitation to treat this case as equivalent to
Crummack
or
Doran
. It is infinitely worse. We agree that it is not as bad as
O'Driscoll
or
Morris and Long
, but the judge did not treat it as such. As it seems to us, this offence amply merited a starting point in double figures, but short of 13 years or more which bracket is obliquely referred to in the Sentencing Guidelines Council's document. Twelve years seems to us to be at the top of the available range for this offence. When one reads the very careful sentencing remarks of His Honour Judge Hillen it is clear that what really raised the level was the very marked impact of the terrifying offence on the unfortunate victim who had no connection with these defendants whatever and was doing no more than trying to sit at home quietly on a Saturday evening on her own.
17.
Our conclusion is that the judge, whilst he was at the top of the range was not outside the permissible range and was entitled to do what he did. Despite Mr Rickard's valiant efforts the result is that the appeal must be dismissed.
18.
MR RICKARD: In those circumstances may I respectfully ask for seven days within which to consider drafting a certificate.
19.
THE VICE PRESIDENT: No. There is no conceivable point of law of general public importance involved. It is a sentencing decision, Mr Rickard.
20.
MR RICKARD: So be it.