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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Greaves, R v [2009] EWCA Crim 379 (20 February 2009) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/379.html Cite as: [2009] EWCA Crim 379, [2009] 2 Cr App R (S) 88, [2009] 2 Cr App Rep (S) 88

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Friday, 20th February 2009

1. LORD JUSTICE HOOPER: This appeal against sentence is dismissed for reasons to be given by Mr Lloyd Jones.
2. MR JUSTICE LLOYD JONES: On 16th October 2008 at the Crown Court at Doncaster, the appellant was convicted on one count of robbery.
3. On 27th November 2008, he was sentenced by Mr Recorder Foster to an extended sentence of 11 years pursuant to section 227 of the Criminal Justice Act 2003, comprising a custodial term of seven and a half years imprisonment and an extension period, that is an extended period of licence, of three and a half years with 222 days spent in custody on remand to count towards the sentence. He now appeals against sentence by leave of the single judge.
4. The complainant, Mr Wolonciej was 87 years of age. He lived alone in a self contained, warden controlled, ground floor flat in Doncaster. At about 1.00 pm on 1st April 2006, as he approached the communal entrance to this sheltered accommodation, the appellant asked him for a glass of water. The claimant agreed and the appellant waited at the communal entrance just inside the door. When the complainant returned with the glass of water, the appellant, without provocation, punched him to the face and knocked him to the floor. The appellant then searched the complainant's jacket and took his wallet which contained over £30 in cash and a family photograph. As the appellant went to leave, the complainant got up and struck him with his walking stick.
5. The complainant said in his statement that he suffered cuts and bruises to his right arm, bruising to his left wrist and soreness to right side of his back. He said that the offence had made him angry. He had tried to be neighbourly and the appellant had abused his trust.
6. The claimant's daughter said in her statement that in the two years since the robbery, her father had deteriorated physically and mentally. He used to walk to town often twice a day, but following the robbery he stopped doing this. He felt vulnerable and had lost his confidence. On 2nd July 2008, the claimant died from lung cancer.
7. The appellant's fingerprint was recovered from the glass of water. He was arrested. He said he had been playing football and had been making his way to a friend's house to get a shower. The claimant saw him and asked whether he wanted a glass of water. The appellant's account was that the claimant had stroked his hand and made him feel uncomfortable. He said that the complainant then offered him whisky which he refused. He said that the complainant then flipped and attacked him with a walking stick. The appellant then left.
8. This appellant was born in the 1973 so he was 35 years of age. He has 16 previous convictions for 25 offences. The majority are for theft and burglary. They include one offence of actual bodily harm against his year old daughter committed in 1994 and one of robbery committed in 1996 during which he broke a man's jaw.
9. The Pre-Sentence Report indicated that at the time of the offence the appellant had been subject to probation supervision having been released from prison on 27th September 2007 from a sentence imposed for offences of burglary. The appellant, even after conviction, remained adamant that he did not commit the offence and complained that he was being stitched up. The author of the report observed that the appellant demonstrated a lack of respect for the law and for the victim. His inability to think about his own actions illustrated the fact that he did not think about the long term consequences of his offending. He lacked the skills needed to prevent him from re-offending. He had developed an established pattern of acquisitive offending and resorted to any means necessary, including violence, in order to satisfy his need for money.
10. At the time of the offences he was clearly affected by his lapse into drug misuse. The offence was part of an established pattern of offending but not an escalation. There was, in the author's view, a high risk of re-offending. The majority of his previous offending had been to fund his use of heroin, cocaine and amphetamine. There was, in the author's view, a high risk of causing serious harm to the public.
11. In sentencing the appellant the judge observed that he had a long and depressing history of offending. The offence was far too serious to be dealt with in any other way other than by a custodial sentence. A life sentence or a sentence of imprisonment for public protection were not necessary but an extended sentence was. The judge observed that were this to have been a personal robbery in the home, the sentencing range would have been 13 to 16 years.
12. The greatest assistance to the appellant, in the judge's view, came from guidelines in relation to street robbery or mugging. He considered that this offence was akin to a very aggravated street robbery, aggravated by the fact that this was a very vulnerable complainant and that he had used the cynical device of asking for a drink. There was some violation of the complainant's home but not as great as in many cases.
13. Before us, Mr Cane-Soothill simply submits that whilst this was clearly a serious offence, the sentence was manifestly excessive.
14. Robbery is a specified offence for the purpose of the dangerousness provisions of the Criminal Justice Act 2003. The judge was required to consider whether there was a significant risk to members of the public of serious harm occasioned by the commission by the appellant of further specified offences. He concluded that there was. In coming to this conclusion he referred to the Pre-Sentence Report in which the author had assessed the risk of his causing serious harm to be at a high level. In this regard the author had referred in particular to his conviction in 1994 for assault occasioning actual bodily harm against his one year old daughter and a conviction for robbery in 1996 in which the victim suffered a broken jaw. Although these convictions were a considerable time ago, the judge concluded that the appellant satisfied the test of dangerousness. In our view, he was clearly entitled to do so.
15. We have considered the Sentencing Guideline Council's Definitive Guidelines in relation to robbery. It appears to us that this case falls within the second category. It is a case where force was used which resulted in injury to the victim. In the case of adult offenders the starting point for this category is four years custody and the sentencing range is two to seven years custody.
16. However, there are present in this case a number of grave aggravating features. The victim was very vulnerable, he was 87 years of age and living in sheltered accommodation. He was clearly targeted by the appellant. The victim was attacked not, we accept, within his home but nevertheless within its immediate precincts. I have referred to the statement by the victim's daughter in which she linked the deterioration in Mr Wolonciej's health, which followed this attack, with the attack itself. The point is made by Mr Cane-Soothill that there was no medical evidence to link the two and that this may simply have been a coincidence. However, she also referred in that statement to the loss of confidence which followed this attack which was undoubted. We also bear in mind in this regard that this appellant had a number of recent convictions for dwelling house burglary and that he was still under supervision at the time he committed this offences.
17. In support of his submissions, Mr Cane-Soothill has drawn our attention to two decisions of this Court. In Buck (Cameron) [2001] Cr.App.R. (S) 42 the Court considered the appropriate sentences in cases where old ladies have been targeted and robbed after collecting their old age pensions. There an old lady had been dragged off the highway into a driveway in order to rob her. The court indicated that a sentence of the order of five years was appropriate.
18. In Attorney General's Reference No. 114 of 2005, (Nicky Smith) [2006] 2 Cr.App.R (S) 90 the Court was concerned with a robbery involving the use of a claw hammer and a kitchen knife. The attack was on an elderly man in his home. In that case, a community sentence was held to be unduly lenient. The court indicated that a sentence of at least five years would have been expected. Allowing for double jeopardy the court substituted a sentence of four years imprisonment with concurrent sentences of 12 months imprisonment for the possession of offensive weapons.
19. However, we have found greater assistance from a more recent decision of this Court: Attorney General's References Nos. 38, 39 and 40 of 2007 (R v Campbell) [2007] EWCA Crim 1692 [2008] 1 Cr.App.R (S) 319. There, the Court placed particular emphasis on the aggravating feature that the robbery took place in the victim's own home. The facts there were that the victim was an elderly man. The first offender aged 30 went to visit him. The victim knew the first offender and admitted him to the flat. The second and third offenders, who were aged 20 and 21, accompanied the first offender and were also admitted to the flat. With the aid of weapons, the victim was threatened and demands were made to hand over money. The first offender went to the bedroom and ransacked it. At one stage the second offender struck the victim with his fist and caused the victim to fall backwards into his chair. The victim's partner sustained two punches. The offenders left, when challenged, having taken a quantity of electrical items including DVD players and mobile telephones. Eight days later the victim complained of a pain in his head. He was admitted to hospital for a brain scan. The scan showed that blood had collected within his skull and had been compressing his brain. He died that evening.
20. All three offenders pleaded guilty at the first opportunity to two counts of robbery. The second offender also pleaded guilty to manslaughter. The second offender had no previous convictions, the first offender had 34 and the third offender had seven. Both the first and third offenders had been in prison before for burglary. The judge sentenced the first offender to two years and nine months imprisonment, the second offender to two years and six months detention in a Young Offenders' Institution for the robbery count and three years and six months to be served concurrently for the manslaughter count. He sentenced the third offender to two years and six months imprisonment. The Attorney General applied for leave to refer the sentences to the Court of Appeal as unduly lenient.
21. This court concluded, having regard to the guidelines, that the offences could be classified under category two, with the additional aggravating feature that the robberies had taken place in the victim's home. On that basis, and taking into consideration the relevant authorities, an offender with no previous convictions following a trial should be sentenced to be a term of imprisonment in the region of seven to seven and a half years. In that case, the appropriate term for all three offenders, in the light of their individually aggravating circumstances, was in the region of eight to eight and a half years for the offence of robbery.
22. Having regard to this decision, we consider that it simply is not possible to criticise the sentence passed by the judge in the present case. The custodial term and the extended licence period were clearly justified. For these reasons we would dismiss the appeal.