AG Reference No 46, 47 & 48 of 2009

Sentencing guidelines provide a starting point, not an end point. A sentencing judge must identify and weigh the aggravating and mitigating features of the individual robbery. For robbery involving an imitation firearm, material aggravating features may include planning, targeting a lone shopkeeper in a vulnerable small business, and pointing the weapon at close range.

In an Attorney General reference, a sentence should be increased only if it is unduly, rather than merely, lenient. The appellate court must also allow for the double-jeopardy element when increasing sentence. A guilty plea, substantial assistance to the prosecution, coercive pressure falling short of duress, totality, and time already served may mean that a lenient sentence should stand.

The Attorney General obtained leave under Criminal Justice Act 1988, section 36, to refer sentences imposed at Stafford Crown Court on three offenders for a planned robbery of a newsagent using an imitation handgun.

Bowers entered the shop, pointed the weapon at the lone manager and took cash. Rushton and Clegg had driven him to the area, supplied the weapon and collected the proceeds. Rushton had also subjected Bowers to serious threats and intimidation connected with an alleged debt. Bowers pleaded guilty and gave substantial assistance leading to the convictions of the other two offenders.

The central issue was whether the sentences for robbery and possession of an imitation firearm were unduly lenient, and, if so, what substituted sentences were appropriate.

1. The court granted leave and held that the sentences imposed on Rushton and Clegg were unduly lenient. Their sentences were increased. Bowers’s sentence, although lenient, was not unduly lenient and was left undisturbed.

2. The Recorder had correctly identified the applicable Sentencing Guidelines Council range as two to seven years and the starting point as two years for a level 2 offence. However, guidelines are only a starting point. They must be applied carefully to the particular facts, with the relevant aggravating features identified and weighed.

3. The common aggravating features were planning, use of an imitation firearm, the targeting of a vulnerable small business and lone shopkeeper, and the pointing of the weapon at the victim’s head from close range. Rushton’s conduct was more serious because he had harassed and intimidated Bowers and was primarily responsible for pressuring him to participate. That pressure was significant but did not amount to duress.

4. The appropriate sentence after trial for Rushton’s involvement in the robbery was seven years, plus the separate consecutive sentence for the stungun. Allowing for double jeopardy, the robbery sentence was increased so that his total became six years and three months. Clegg’s appropriate sentence after trial was six years. Allowing for double jeopardy, his sentence was increased from four to five years.

5. Bowers was differently placed. His guilty plea, very considerable assistance to the prosecution, the pressure exerted on him, the totality of his three-year sentence, and the fact that he had already been released meant that his 18-month sentence for the robbery and imitation-firearm offences was not unduly lenient. No increase was made.

• Court of Appeal (Criminal Division): On the Attorney General’s reference, the court increased the sentences of Rushton and Clegg but did not interfere with Bowers’s sentence: [2009] EWCA Crim 2591.
• Crown Court at Stafford: Mr Recorder Wasik imposed the original sentences for the robbery and imitation-firearm offences, together with sentences on related indictments.