R v Anthony Stephen Hand

In sentencing an attempted robbery, the court must recognise its inchoate nature. An attempt does not attract the same punishment as the completed offence, and the stage and reasons for non-completion are material. Psychological harm may justify a higher harm category even where there is no physical injury. Where a public-order offence forms part of the same incident as the principal offence, a concurrent sentence will ordinarily be appropriate, even if the conduct occurs elsewhere. Any consecutive sentence must remain within the guideline range and respect totality.

The appellant appealed against sentences imposed by the Crown Court at Birmingham for attempted robbery and a public-order offence. He had threatened staff in a shop, claiming to have a gun, and later abused and threatened police officers during transport to the station. The Crown Court imposed three years for attempted robbery and a consecutive three-month term for the public-order offence. The appeal challenged the harm category, the treatment of the robbery as an attempt, and the consecutive sentence. The central issues were the proper guideline assessment and whether the sentences should have been concurrent.

The appeal was allowed. The sentences imposed below were quashed and replaced with two years and three months’ immediate custody for attempted robbery and one month’s custody for the public-order offence, to run concurrently.

1. Attempted robbery. The offending was at the very bottom end of attempted robbery. Until the threat that the appellant had a gun, much of the conduct had the hallmarks of aggressive and threatening shoplifting. The offence was inchoate and did not attract the same punishment as a completed robbery. The sentencing court must consider the stage at which the attempt failed and the reason or reasons for non-completion.
2. The harm fell on the cusp of Categories 2 and 3. Although there was no physical injury, the threat of a gun caused more than minimal psychological harm. The offence was at the lowest end of culpability B. A three-year starting point was increased to three and a half years by the appellant’s intoxication, offending on licence within 24 hours of release, and relevant previous convictions. Mitigation, including the inchoate nature of the offence, lack of intention to cause fear, remorse, difficult early life and alcohol problems, reduced the sentence to three years before credit for the guilty plea. The 25 per cent reduction produced two years and three months.
3. Public-order offence. The threatening behaviour towards the police formed part of the same incident, notwithstanding that it occurred outside the shop. It should therefore have attracted a concurrent sentence. The offence fell within the lower end of Category 2A, with Category A culpability because it was sustained throughout the journey in a confined police van and involved fear that the appellant might spit at the officers. The three-month consecutive sentence was manifestly excessive and outside the guideline range.

1. Court of Appeal (Criminal Division): allowed the appeal against sentence, quashed the sentences imposed below and substituted a two-year-three-month sentence for attempted robbery and a concurrent one-month sentence for the public-order offence.
2. Crown Court at Birmingham: on 27 February 2023, imposed three years’ imprisonment for attempted robbery and a consecutive three-month sentence for the public-order offence.