Attorney-General Reference No 124 of 2008

Robbery in the home of an elderly person, even without weapons or significant violence, ordinarily warrants a substantially higher sentence than comparable street robbery because it invades the victim’s security at home. For this category, a sentence after trial will generally fall within a broad range of five to six years’ custody.

The range is not a fixed tariff. Sentencing remains individual, and a judge may exercise conscious clemency where there is a sound and stated reason. A substantial departure from the usual level nevertheless requires a demonstrated evidential basis; uncertain prospects of reform will not suffice.

The Attorney General referred as unduly lenient a sentence of three years’ custody imposed on Doran after his trial for conspiracy to rob.

On one day, Doran and another targeted two elderly householders in their homes. In the first robbery, the 76-year-old victim was gripped when he sought to activate an alarm. In the second, an 86-year-old victim found the offenders in her house after they had forced entry. Both victims suffered anxiety and a loss of security in their homes.

The sentencing judge rejected a proposed suspended sentence but imposed three years’ custody, relying on the absence of weapons and limited indications that Doran wished to change. The central issue was the appropriate sentencing range and whether the personal mitigation justified a substantial departure from it.

1. The Attorney General’s reference succeeded. The court granted leave, quashed the three-year sentence, and substituted four years and six months’ custody.

2. The Sentencing Guidelines Council’s 13-to-16-year bracket for violent personal robbery in a house did not govern this case. That bracket concerned very serious violence, illustrated by O'Driscoll (1986) 8 Cr.App.R (S) 121. Nor should home robbery be sentenced in the same way as street robbery.

3. The invasion of an elderly person’s home is a grave aggravating feature. Consistently with the approach considered in Attorney General's Reference No 38 to 40 of 2007 (Crummack and Others) [2008] 1 Cr.App.R (S) No 56, sentencing should retain a sensible relationship with other robbery sentences while reflecting that aggravation. For unpleasant robberies targeting elderly householders, without weapons or significant violence, the broad range after trial is five to six years’ custody. It is not a fixed tariff.

4. Sentencing must remain individual. A judge may exercise conscious clemency if aware of the ordinary sentence and if proper reasons are given. Here, however, the material suggesting a change in Doran’s behaviour was too slight and uncertain to justify a substantial reduction. The absence of weapons also did not justify reducing the sentence to three years.

5. The court took account of Doran’s age, good prison behaviour, and the additional impact of resentencing. Those matters justified a sentence below the usual range, but not the sentence imposed.

• Court of Appeal (Criminal Division) On the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court granted leave, held the sentence too low, and substituted four years and six months’ custody: [2008] EWCA Crim 2820.

• Crown Court The sentencing court, not otherwise identified, imposed three years’ custody after trial for conspiracy to rob.