Mercer & Anor, R v

For a planned robbery in a victim’s home, the sentencing guidelines must reflect the actual level of culpability and harm. Targeting a person because of perceived vulnerability, acting jointly, prior convictions, and a similar previous offence are material aggravating features. Severe personal vulnerability, learning disability, mental-health difficulties and the disproportionately harsh effect of imprisonment may substantially reduce the commensurate sentence, even where they did not cause the offending.

A full guilty-plea reduction may be justified on the particular circumstances. However, those mitigating factors did not justify a suspended sentence for a planned and violent robbery of a highly vulnerable victim in his home. A sentence that materially understates the resulting seriousness is unduly lenient.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient sentences imposed at Lewes Crown Court on 9 January 2020.

The two offenders had pleaded guilty to robbery and five offences of fraud by false representation. They planned for Mercer to enter the disabled victim’s home using a false pretext. Mercer assaulted and robbed him, and the offenders then used the stolen bank card. Each received 24 months’ imprisonment, suspended for 24 months, with a rehabilitation activity requirement.

The reference concerned the correct guideline assessment of culpability and harm, the weight to be given to aggravating features and substantial personal mitigation, and whether immediate custody was required.

1. Leave was granted and the reference succeeded. The suspended sentences for robbery were unduly lenient. The court quashed them and substituted three years’ immediate imprisonment for each offender. The concurrent sentences for fraud remained in place.

2. The robbery was committed against a highly vulnerable man in his own home. Its psychological consequences were substantial and placed harm on the cusp between categories 1 and 2. The absence of sophisticated planning and of an abuse of a position of trust sufficient for category A did not make this an offence of lesser culpability. The planned use of a false council inspection, the joint enterprise and the targeting of the victim’s perceived vulnerability required at least category 2B, with a starting point of five years and a range of four to eight years.

3. Previous convictions aggravated the offending, particularly Norris’s similar previous offending against a vulnerable person. The joint robbery and deliberate targeting of vulnerability were further aggravating features. Before personal mitigation, the commensurate term was therefore at least six and a half years.

4. The court accepted that both offenders had serious learning, mental-health and personal difficulties. Imprisonment would affect each more severely than most offenders. Although those difficulties had not caused the offending, they substantially reduced the appropriate pre-plea term to four and a half years. The sentencing judge had been entitled to allow full credit for the guilty pleas, producing a sentence of three years’ imprisonment. That term had to be immediate custody; suspension could not meet the seriousness of the robbery.

• Court of Appeal (Criminal Division): On the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court granted leave, quashed the suspended robbery sentences, and substituted three years’ immediate imprisonment for each offender: [2020] EWCA Crim 554.
• Crown Court at Lewes: On 9 January 2020, each offender received 24 months’ imprisonment suspended for 24 months for robbery, with concurrent sentences for the fraud offences.