Brennan, R v

A community order for a serious robbery may be unduly lenient where it does not sufficiently reflect high culpability, substantial psychological harm, relevant previous offending and commission of the offence while on bail. A sentencing court may exceptionally favour rehabilitation over custody, but that course must be justified by genuinely exceptional circumstances. In substituting sentence following an Attorney General reference, the appellate court may take account of the sentencing judge’s indicated custodial term and the period during which the offender has been subject to the impugned order.

The offender pleaded guilty in the Crown Court at Taunton to robbery after entering a convenience store with a meat cleaver, demanding money from a cashier and leaving with three bottles of wine. The victim suffered significant psychological effects.

The sentencing judge treated the offence as category 2A under the definitive robbery guideline. Although identifying a starting point of five years’ imprisonment, the judge imposed a three-year community order with rehabilitation and drug-rehabilitation requirements, together with a restraining order.

The Attorney General referred the sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient. The issue was whether the exceptional rehabilitative course was justified despite the gravity and aggravating features of the robbery.

1. Disposition. The court granted the Attorney General leave to refer the sentence and held that the community sentence was unduly lenient. It quashed that sentence and substituted three years and six months’ imprisonment, with credit for time spent on remand. The restraining order remained in force and a victim surcharge of £85 was imposed.
2. The offence was correctly placed in category 2A of the robbery guideline. The use of a meat cleaver to threaten violence made culpability high, and the victim’s psychological harm placed the case in harm category 2. The offence was not close to the custody threshold.
3. The court affirmed that a Crown Court retains power to take an exceptional rehabilitative course in an exceptional case. However, this offender had relevant previous convictions and committed the robbery while on bail for possessing a bladed article. Those matters made a non-custodial outcome inappropriate on the facts.
4. A starting point of about six years’ imprisonment was appropriate. The aggravating and mitigating features, apart from the guilty plea, broadly balanced each other. With full credit for the plea, the court would ordinarily have imposed four years. It reduced the substituted term to three years and six months because the sentencing judge had indicated that term and the offender had already been subject to the community sentence.

• Court of Appeal (Criminal Division). On an Attorney General reference under section 36 of the Criminal Justice Act 1988, the court held the community sentence unduly lenient, quashed it and substituted three years and six months’ imprisonment.
• Crown Court at Taunton. On 25 May 2018, the offender received a three-year community order for robbery, with rehabilitation and drug-rehabilitation requirements and a restraining order.