Karim Hussain and Mickelle Alexander [2018] EWCA Crim 2550
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R v Karim Hussain and Mickelle Alexander [2018] EWCA Crim 2550 concerned an Attorney General’s reference under section 36 of the Criminal Justice Act 1988 for unduly lenient sentence, together with an application by one offender for leave to appeal on grounds of manifest excess, determined by the Court of Appeal before Lord Justice Davis, Mrs Justice McGowan and His Honour Judge Katz. The court granted leave on the reference but dismissed it, and refused the application for leave to appeal.
The first offender, Mr Karim Hussain, then aged 20, was convicted after trial at Croydon Crown Court before His Honour Judge Ainley of six offences of robbery, one theft and four frauds. The second offender, Mr Mickelle Alexander, then aged 21, was convicted of seven offences of robbery, two attempted robberies, eight thefts, one attempted theft and four frauds. On 3 August 2018 Mr Hussain was sentenced to an extended sentence under the Criminal Justice Act 2003 of 15 years comprising a custodial term of 12 years and an extension period of three years. Mr Alexander received an extended sentence of 17 years comprising a custodial term of 14 years and the same three year extension.
Between late September and early December 2017 the offenders conducted a campaign of robberies and thefts of handbags targeting solitary women in the street, often of mature years. The modus operandi involved riding together on stolen mopeds with altered registration numbers whilst wearing masks or helmets, approaching the victim at speed and the pillion passenger grabbing the victim’s bag, using force or producing knives if necessary. One 70 year old victim suffered a fractured humerus. Another was robbed in front of her grandchildren. Another was left with a fractured shoulder. In one incident involving Mr Alexander with a different accomplice a male victim had his wrist slashed with a knife. The offenders fraudulently used stolen bank cards and disposed of cash and jewellery taken from the handbags.
Specific incidents included the theft of gold jewellery from a woman in Croydon on 28 September 2017, during which Mr Hussain produced a knife when challenged by a brave witness, Mr Mark Laird. On 26 October 2017 Mr Hussain approached a woman with children and demanded her bag with a knife; she had just withdrawn £5,000 in cash. On 2 November 2017 the offenders stole a handbag worth over £5,000 from a car. On 10 November 2017 there was a series of offences. The offenders dragged a 70 year old woman to the ground causing a fractured humerus and stole her handbag. An hour later they dragged a woman in her fifties across the road stealing her handbag containing £500 and bank cards, which caused chest injuries initially thought to be fractured ribs. Less than half an hour later they robbed another woman pulling her to the ground. Three days later Mr Alexander robbed a 66 year old woman in front of her grandchildren.
On 19 November 2017 Mr Alexander with a different accomplice committed multiple offences whilst carrying a Bowie knife and a brick. They robbed a woman in a car park whilst holding a large knife, stole a bag containing emergency heart medication from a man resting on a bench, attempted to rob a woman at Wimbledon Station pulling her to the ground, attempted to rob another woman in Colliers Wood dragging her along the ground, and robbed a male victim during which the accomplice slashed the victim’s wrist with a knife causing a three centimetre wound, whilst both kicked or punched him as he lay on the ground. On 26 November 2017 both offenders robbed a woman of her handbag and fraudulently used her cards. On 4 December 2017 the offenders committed a series of offences including stealing £7,400 in cash and 5,000 Euros from a woman at a railway station.
Mr Hussain was arrested on 9 December 2017 and denied the offences, making no comment in interview. Mr Alexander was arrested in January 2018 and also denied the offences. Both offenders had poor criminal records with 10 and 11 previous convictions respectively, many for drugs offences, although neither had previous convictions for offending of this kind or seriousness. Mr Hussain was on licence at the time having received a substantial sentence in Swansea Crown Court for drug supply in 2016. Pre-sentence reports assessed each offender as presenting a significant risk of reoffending and as dangerous for the purposes of the 2003 Act. The report on Mr Hussain incorrectly suggested his involvement in count 16, the stabbing incident, but this error was identified to and noted by the judge. Victim impact statements described significant ongoing fear and reluctance to go out.
The trial judge carefully summarised the facts and referred to the Definitive Guideline on robbery issued by the Sentencing Council. He applied the guideline relating to street and less sophisticated commercial robberies rather than that for professionally planned commercial robberies. For Category 1A offending under that guideline the starting point is eight years’ custody with a range of seven to 12 years. The judge observed that moped robberies were easy to commit, highly dangerous to the public and terrifying to victims, and emphasised that such offending must and would be deterred by lengthy prison sentences. He imposed concurrent sentences but stated these were higher than would otherwise be the case standing alone in order to reflect the multiple offending and immense criminality. He identified count 7 (the robbery of the 70 year old woman with the fractured shoulder) as the most serious count for Mr Hussain and count 16 (the stabbing incident) as the most serious for Mr Alexander, concluding that extended sentences were appropriate.
On behalf of the Solicitor General, Mr Schofield argued that the judge should have applied the guideline for professionally planned commercial robberies, which for Category 1A has a starting point of 16 years’ custody with a range of 12 to 20 years, emphasising the degree of planning, sophistication and organisation. He submitted the sentences were unduly lenient, particularly failing to reflect the totality of the offending including the multiple robberies, thefts, frauds and the carrying and preparedness to use knives.
The Court of Appeal rejected the submission that the professionally planned commercial robberies guideline should have been applied. Lord Justice Davis held that the judge was justified in adopting the guideline for street and less sophisticated commercial robberies. These were in many ways paradigm street robberies albeit accompanied by the use of stolen mopeds and a degree of planning, and the circumstances were quite different from cases such as Attorney General’s Reference (Kelly) [2016] EWCA Crim 750. The court considered that for count 7 taken alone, allowing for mitigation primarily age, a sentence after trial in the region of eight years might have been expected. For count 16, the most serious offence for Mr Alexander, a sentence of not less than 10 years and quite possibly more would have been appropriate taken on its own.
The court swiftly disposed of Mr Hussain’s application for leave to appeal on grounds of manifest excess, describing it as unarguable. The judge was plainly entitled to make a finding of dangerousness having regard to the circumstances of the repeated offending and the pre-sentence report, which was not vitiated by the error relating to count 16. The judge was entitled to conclude there was a significant risk of serious violence and to impose an extended sentence. The length of the custodial term could not be described as excessive given the totality of the offending.
Turning to the Attorney General’s reference, the court acknowledged that the real thrust of the Solicitor General’s argument was that the judge failed sufficiently to reflect the totality of the offending. The court accepted that the offences were planned but considered it was stretching matters to an unacceptable degree to describe the offending as sophisticated; in many ways it was opportunistic albeit planned. What remained undoubtedly was that the offending was brazen and in all instances terrifying. The court emphasised that moped robberies occurring in streets and involving the use or potential use of significant force are currently a menace in many urban areas, have significant effects on victims usually lone women, cause great concern within the local community and unquestionably call for stern punishment. The numerous offences and contested trials warranted stern punishment.
However, the court identified other matters to be taken into account. Although both offenders had poor records, they had no previous convictions for offending of this kind or seriousness and it would be wrong to say they had shown themselves to be entrenched criminals. The judge was required to take into account totality. Particularly importantly, Mr Hussain was only 19 and Mr Alexander was 20 at the time of the offending. Extended sentences of 15 and 17 years with custodial elements of 12 and 14 years respectively are on any view sentences of considerable length. They will seem particularly severe from the perspective of persons of such an age who still have the capacity to mature, grow out of their criminality and mend their ways, and who face the risk of institutionalisation.
The court considered that a stand back and appraise approach was necessary, which the trial judge who had conducted the trial had commendably adopted. Whilst the sentences imposed might be described as being on the lenient side and might perhaps have been somewhat longer, they could not fairly or properly be described as unduly lenient. In short, the court granted leave on the reference but dismissed it, and refused Mr Hussain’s application for leave to appeal against sentence.