Attorney General's Reference No 38 and 39 of 2004

For violent robbery in a victim’s home, the central concern is the victim’s vulnerability, rather than age alone. Targeting a vulnerable person living alone, invading the home at night, acting as a group, using gratuitous violence and causing significant injury are serious aggravating features. Such offences require deterrent sentences.

Facial fractures constitute significant injury even where no surgical treatment is required. A guilty plea may reduce sentence, but it does not prevent a sentence from being unduly lenient where the offending is grave and the evidence is overwhelming.

The Attorney General referred, under section 36 of the Criminal Justice Act 1988, sentences imposed on Aaron Randall and Troy Donaghue for robbery.

At Gloucester Crown Court, each offender had received three years’ imprisonment after guilty pleas. Randall also received a consecutive four-month sentence for failing to surrender to bail. The offenders, with a third man, entered the home of a frail and vulnerable victim at night, used violence and stole his savings. The victim sustained fractures to his cheekbone and eye socket.

The issue was whether the robbery sentences were unduly lenient, having regard to the victim’s vulnerability, the home invasion, group participation, violence, injury, guilty pleas and previous convictions.

1. The references were allowed. The three-year robbery sentences were unduly lenient. The court set them aside and substituted sentences of five and a half years’ imprisonment for each offender.

2. The principal aggravating features were that a frail and vulnerable man was deliberately targeted in his home at night; three men participated; gratuitous violence was used; and significant injury resulted. The victim’s facial fractures were significant injury. The absence of surgery or other treatment did not reduce their seriousness.

3. The relevant consideration was vulnerability, not the victim’s precise age. Age may contribute to vulnerability, but attacks on elderly or otherwise vulnerable people in their homes cause widespread anxiety and call for deterrent sentences. The court applied the approach illustrated by Attorney General's Reference Nos 32 and 33 of 1995 (Pegg and Martin), [1996] 2 Cr App R (S) 346.

4. Attorney General's Reference No 89 of 1999 (Farrow), [2000] 2 Cr App R (S) 382, and Attorney General's Reference 48 of 2000 (Johnson), [2001] 1 Cr App R (S) 423, assisted the sentencing assessment. The four-to-seven-year guilty-plea bracket discussed in Johnson reflected the absence of significant injury in that case and did not govern this robbery.

5. The appropriate sentence before allowing for the guilty pleas was six and a half to seven years’ imprisonment. Allowing for the double-jeopardy principle applicable on an Attorney General’s reference, five and a half years was substituted. Randall’s consecutive four-month bail sentence remained, producing a total of five years and ten months; Donaghue’s total was five and a half years.

• Court of Appeal (Criminal Division): granted leave on the Attorney General’s references and increased the robbery sentences: [2004] EWCA Crim 1820.

• Gloucester Crown Court: sentenced each offender to three years’ imprisonment for robbery. Randall also received four months’ consecutive imprisonment for failing to surrender to bail.