Attorney General's Reference No. 115 OF 2005

Robbery of a small shop using an imitation firearm is a serious offence which ordinarily requires a substantial custodial sentence. Sentencing must reflect deterrence, especially where cash premises and a vulnerable shopkeeper are targeted.

Where separate drug and robbery offences warrant distinct punishment, concurrent sentences may produce an unduly lenient total. Sentences should instead be consecutive, subject to totality. On an Attorney General reference, the increase must also reflect double jeopardy arising from the offender having already been sentenced.

The offender pleaded guilty to possession of crack cocaine and heroin with intent to supply. While on bail for those offences, he committed a robbery of a small shop using an imitation firearm.

At the Crown Court at Reading, the Recorder imposed four years’ imprisonment for robbery and concurrent terms of two years and eight months for the drug offences. The Attorney General obtained leave under Criminal Justice Act 1988 to refer the sentence as unduly lenient.

The central issue was whether the robbery sentence and the concurrency of the sentences produced an unduly lenient overall term.

Disposition

The court allowed the Attorney General’s reference. It increased the total sentence from four years to six years’ imprisonment.

1. The sentence of two years and eight months for the drug offences was within the appropriate range. The court accepted the guidance derived from Afonso [2005] 1 Cr App R (S) 560, while recognising that these offences were towards the lower end of possession with intent to supply.

2. The robbery was serious. It involved an imitation firearm, a small cash business and a 64-year-old shopkeeper. The court treated the robbery authorities, including Attorney-General’s Reference No 14 of 1991 (Stephen Reed) (1992) 13 Cr App R (S) 446, as supporting a standalone sentence of seven years, notwithstanding the limited planning and the conclusion that the offending was out of character.

3. The Recorder should not have made the sentences concurrent. The distinct offences required consecutive sentences, although the overall term had to satisfy totality. A total approaching eight years, comprising five years for robbery and two years and eight months for the drug offences, would have been appropriate before allowing for double jeopardy.

4. Taking double jeopardy into account, the court imposed five years for robbery and one year consecutively for the drug offences. The unchallenged finding that the offender did not qualify for a mandatory sentence under section 225 of the Criminal Justice Act 2003 remained undisturbed.

• Court of Appeal (Criminal Division) — On the Attorney General’s reference, the court allowed the reference and increased the total sentence to six years’ imprisonment: [2006] EWCA Crim 377.
• Crown Court at Reading — The Recorder imposed four years’ imprisonment for robbery and concurrent sentences of two years and eight months for the drug offences.