Cowell, R v

A sentencing guideline that ordinarily calls for custody for serious street robbery does not prevent a court from imposing a community sentence where exceptional circumstances justify it. Exceptional circumstances are not confined to matters relating to the offence. Sentencing is not mechanical and may take account of the offender’s circumstances and the protection of the public.

Where a sentencing judge wrongly considers that authority excludes a non-custodial sentence, and states that such a sentence would otherwise have received serious consideration, an appellate court may set aside custody. It must still assess the seriousness of the robbery, deterrence, the offender’s role, risk, character and mitigation.

The appellant was convicted after a retrial at the Crown Court at Harrow of robbery committed by a group of eight or nine youths. He played no active part in taking property, but was present throughout. He was sentenced to 12 months’ detention in a young offender institution.

The pre-sentence report assessed him as presenting a low risk of harm and reoffending, and recommended a community punishment order and curfew. The sentencing judge regarded custody as required by the street-robbery guideline, unless exceptional circumstances existed. He considered that such circumstances had to relate to the offence rather than the offender, although he would otherwise have seriously considered a community sentence.

The appellant appealed against sentence by leave of the single judge. The central issue was whether the judge had wrongly treated authority as excluding a non-custodial sentence.

1. Appeal allowed to the stated extent. The court quashed the sentence of 12 months’ detention in a young offender institution and substituted a community punishment order requiring 100 hours’ unpaid work, subject to the appellant’s consent.

2. The sentencing judge erred in holding that Attorney General’s Reference Nos 4 and 7 of 2002 (Lobban and Sawyers) [2002] 2 Cr.App.R (S) 77 precluded a non-custodial sentence. Although the guideline required custodial sentences for offences of that seriousness unless exceptional circumstances existed, it did not confine exceptional circumstances to matters concerning the offence. The judge was entitled to consider a community sentence.

3. The court recognised the gravity of a midnight group robbery. The group’s size intimidated the victim, who feared that a weapon was present. Deterrence was a material sentencing consideration because of the prevalence of such offending.

4. However, the appellant was at the lowest of the four levels of seriousness identified by the sentencing judge. He played no active part, had good character, was pursuing education, had strong community support, and was assessed as posing a low risk of harm and reoffending.

5. The decisive feature was the expectation created by the sentencing judge’s express statement that he would have given serious consideration to a community sentence had he believed himself free to do so. That expectation, considered with the judge’s direct assessment of the appellant and the evidence, sufficed to set aside custody. The appellant later consented to the substituted order.

• Court of Appeal (Criminal Division): By [2004] EWCA Crim 3477, allowed the sentence appeal to the extent of quashing detention and substituting a community punishment order.
• Crown Court at Harrow: Following a retrial, convicted the appellant of robbery on 30 September 2004 and sentenced him on 28 October 2004 to 12 months’ detention in a young offender institution.