REGINA v STEVEN MILNER

An allegation that a robbery victim is a paedophile does not establish hostility based on sexual orientation under the robbery sentencing guideline. It cannot therefore place culpability in the highest category on that basis. However, where used as an abusive prelude to an assault, the allegation may independently aggravate sentence because it causes additional fear, apprehension and distress.

Harm is not minimal merely because the victim avoids physical injury. Genuine anxiety and nervousness following a violent robbery may justify category 2 harm. An error in the initial culpability category will not make a sentence manifestly excessive where the correct category, together with substantial aggravating features, justifies an upward move outside its range and the same sentence.

The appellant pleaded guilty at York Crown Court to robbery and fraud. He had assaulted and robbed a 70-year-old man after accusing him of being a paedophile, and then used the victim’s bank card. He received concurrent sentences totalling four years and nine months’ imprisonment.

He appealed against sentence with leave of the single judge. The central issue was whether the sentencing judge had wrongly treated the accusation as hostility based on sexual orientation, thereby placing culpability in category A under the robbery sentencing guideline, and whether the resulting sentence was manifestly excessive.

1. Appeal dismissed. The sentencing judge erred in treating an accusation of paedophilia as hostility based on sexual orientation for the purposes of the robbery sentencing guideline. R v B [2013] EWCA Crim 291 and R v Pinchion [2013] EWCA Crim 242 established that presumed paedophilia does not fall within that aggravating factor. In the absence of a category A feature, culpability should have been categorised as B.

2. The accusation nevertheless remained a serious aggravating feature. Used as a term of abuse immediately before the physical attack, it was liable to cause substantial additional apprehension, fear and distress. It could properly increase the sentence without being treated as a protected sexual orientation.

3. The judge was entitled to find category 2 harm. The victim’s anxiety and nervousness about going out alone after the robbery were not a minimal psychological reaction, even though he was fortunate to avoid physical injury.

4. For category 2B harm, the starting point was four years and the range was three to seven years. The appellant’s extensive record, including a relatively recent robbery conviction, the victim’s age and vulnerability, the restraint involved in straddling him, and the prolonged use of force justified a sentence above that category range. A sentence of seven years after trial was entirely reasonable on the correct category B analysis.

5. The 25 per cent guilty-plea reduction and the further six-month reduction for pandemic custody conditions were unchallenged. The final sentence of four years and nine months was not manifestly excessive.

• Court of Appeal (Criminal Division): dismissed the appeal against sentence in [2021] EWCA Crim 1543.

• Crown Court at York: on 4 May 2021, the appellant pleaded guilty to robbery and fraud and received concurrent sentences totalling four years and nine months’ imprisonment.