R v Vienna Israel

In sentencing robbery, the applicable guideline category must reflect the actual degree of force and harm. Force exceeding a brief snatch may properly fall above the minimal-force category. Psychological harm to an elderly victim may properly place harm above the minimal-harm category.

Where culpability and harm both fall at the bottom of their respective categories, the sentencing court should make an initial adjustment from the category starting point towards the bottom of the range. Aggravating features must be weighed against mitigation. A suspended sentence is not required where there is no realistic prospect of rehabilitation in the community and the offender has a serious history of non-compliance.

The appellant pleaded guilty in the Crown Court at Isleworth to robbing a 71-year-old man at an ATM. During a struggle for £150, she elbowed him in the stomach. The victim suffered anxiety and changed his habits.

The sentencing judge assessed culpability as Category B and harm as the lower end of Category 2 under the robbery guideline. He imposed 32 months’ immediate imprisonment after credit for the guilty plea and revoked an existing community order.

On appeal, the appellant challenged the categorisation of culpability and harm, contended that the sentence was manifestly excessive, and sought a suspended sentence. The central issues were the proper guideline categories, the appropriate sentence within the range, and whether suspension was realistic.

1. The appeal succeeded in part. The court quashed the sentence of two years and eight months’ immediate imprisonment and substituted two years’ immediate imprisonment.

2. The judge was entitled to assess culpability as Category B. Although robbery necessarily involves force, this was more than a typical low-level snatching: there was a several-second tussle and an elbow to the victim’s ribs. The force was, however, at the very bottom of Category B.

3. The judge was also entitled to place harm in Category 2, at its lower end. The elderly victim had suffered psychological impact, including anxiety and altered behaviour. R v Calvo and Smith [2017] EWCA Crim 1354 provided no useful comparison because the evidence and impact in the present case differed.

4. Having correctly selected the guideline bracket, the judge erred by adopting its four-year starting point without first adjusting downwards. The lowest-end placement of both culpability and harm required an initial move to the bottom of the category range. The significant aggravating features did not outweigh the mitigation, including the relative age and lesser seriousness of the previous offending. A sentence exceeding three years after trial was manifestly excessive. Full credit for the early guilty plea produced a sentence of two years.

5. The court rejected the challenge to immediate custody. The judge had properly considered the relevant imposition guidance. The appellant’s repeated non-compliance with supervision and the probation assessment meant that community rehabilitation, including a suspended sentence with requirements, was not realistically practicable. Her treatment needs could instead be addressed in custody.

• Court of Appeal (Criminal Division): In [2022] EWCA Crim 1292, allowed the appeal against sentence to the extent of substituting two years’ immediate imprisonment.
• Crown Court at Isleworth: On 23 March 2022, following a guilty plea to robbery, imposed two years and eight months’ immediate imprisonment and revoked a community order.