Byrne [2018] EWCA Crim 2729
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In R v Byrne [2018] EWCA Crim 2729, the Court of Appeal (Lord Justice Flaux, Mr Justice Popplewell and HHJ Picton sitting as a Judge of the Court of Appeal Criminal Division) allowed the appeal to a limited extent, restructuring the sentence but maintaining the overall term of seven years’ detention.
Mr Byrne pleaded guilty on 8 May 2018 in the Crown Court at Luton to two offences of robbery, one offence of attempted robbery and two offences of possessing an article with a blade or point contrary to section 139(1) of the Criminal Justice Act 1988. On 4 June 2018, when he was aged 19, he was sentenced to a total of seven years’ imprisonment, which should have been expressed as detention in a young offender institution. The sentences imposed were two years on each robbery (counts 1 and 5), two years on the attempted robbery (count 3), and six months consecutive on each bladed article offence (counts 4 and 6). Full credit for guilty pleas was given.
The facts concerned three offences at the same petrol station on Elstow Road, Bedford. On 21 February 2018 at 9.15 pm, Mr Byrne ordered Mr Ali Hidar to stand aside at a cash machine, stated that he had a knife, and took £80 as it was dispensed. The victim felt annoyed, upset and scared. On 25 March 2018 at around 6.30 pm, Mr Byrne followed Miss Maria Holowienku from a cash machine, pushed her whilst attempting to steal her handbag, and when unsuccessful produced a large kitchen knife approximately 20 cm in length which he held approximately 1 cm from her face. She screamed and he ran off. In her Victim Personal Statement, Miss Holowienku described the profound effect of the incident; she felt intimidated, anxious whenever she left the house, no longer felt safe, and constantly felt shock and stress. On 5 April 2018 at around 11.30 am, Mr Byrne approached Mr Alex Breeze from behind after seeing him withdraw £250, demanded his wallet, produced a knife, pulled Mr Breeze towards an alleyway and lunged at him with the knife, causing Mr Breeze to hand over his wallet. Mr Breeze described becoming very anxious, struggling to leave his home for a few days, constantly looking over his shoulder, and becoming apprehensive when seeing other young men. The money stolen had been saved for driving lessons and its loss caused him real hardship. When arrested, Mr Byrne made no comment in interview. A knife matching one of the descriptions was found at his mother’s address.
Mr Byrne was 18 at the time of sentence and had four previous convictions for five offences between April and August 2014, including three offences against the person and one theft. The pre-sentence report suggested that he minimised his offending and sought to blame others, though he showed adequate remorse after having time to reflect whilst incarcerated. He acknowledged that the victims would have felt fear and suffered lasting psychological impact. He had been diagnosed with Attention Deficit Hyperactivity Disorder and Obsessive Compulsive Disorder. He was assessed as medium risk of reoffending.
The sentencing judge remarked that the offences were both frightening and nasty and had had a terrible impact on the victims, ruining their quality of life. The judge expressed some doubt about Mr Byrne’s claim that he had been pressured by drug dealers to offend in order to pay debts, but did not resolve that factually as it was a matter of mitigation. The prosecution had served evidence of the prevalence of knife-point robberies in the area and the judge stated she would bear that in mind. She indicated that full credit would be given for the guilty pleas. The judge concluded that Mr Byrne was not dangerous and that, in any event, the lengthy custodial sentence necessary would be sufficient to fulfil the relevant sentencing needs. The judge stated that she had taken account of totality.
The grounds of appeal, upon which leave was granted, asserted that the total sentence implied a starting point after trial of some ten years and four months, which was too high. It was submitted that the starting point failed to acknowledge Mr Byrne’s age and that these were his first adult convictions, notwithstanding the prevalence of knife crime. Further complaint was made that the judge had imposed consecutive sentences for the bladed article offences when those features had already placed the robberies in the highest category. The single judge granted leave, querying the level of sentence on count 1 given that no knife was produced or severe psychological harm reported by that victim, and noting difficulty in understanding how the judge had structured the sentences, particularly the imposition of consecutive terms for the bladed article offences. The single judge warned, however, that in the context of persistent offending the full court might well conclude that the overall sentence was nonetheless correct.
The Court of Appeal accepted that it was unfortunate that the learned judge had not explained how she was structuring the sentences or how she categorised the offences, particularly given that she had imposed the same sentence for counts 1, 3 and 5 despite obvious factual differences. The judge had also not spelled out the degree to which she took account of evidence concerning local prevalence of knife-point robberies, as required by R v Bondzie [2016] EWCA Crim 552. The court found it easier to start afresh rather than seek to analyse the sentencing remarks, which were somewhat opaque.
The court assessed count 1 as a category 3B robbery with a guideline starting point of two years’ custody and a category range of one to four years. Balancing aggravating and mitigating factors would produce a sentence after trial of eighteen months, reduced to twelve months with credit for the guilty plea. Counts 3 and 5 were assessed as category 1A offences. The production of a bladed article pointed to culpability A and the serious psychological harm sustained by the victims indicated category 1 for harm. Even if counts 3 and 5 might be said to be category 2 for harm, there was an overlap between the category ranges and the result would be the same. For count 3, the guideline provided a starting point of eight years’ custody with a range of seven to twelve. The necessary reduction for it being an attempt was minimal, given Mr Byrne’s persistence in seeking to steal the handbag, the fact that he held the knife just 1 cm from the victim’s throat, and that he only desisted after she screamed. Balancing aggravation and mitigation produced a sentence after trial of seven years’ custody, reduced to four years and eight months with credit for the guilty plea. The correct way of dealing with count 4 was to impose no separate penalty, as the use of the bladed article placed the offence within culpability A. Count 5 was again a category 1A robbery (or possibly at the top end of category 2A) which, although not perhaps as serious as the attempt in count 3 in certain features, was balanced by being a completed offence. The result was the same: seven years after trial, four years and eight months with credit for the guilty plea. As with count 4, the correct disposal of count 6 was no separate penalty.
With the sentences ordered to run consecutively and leaving aside consideration of totality, the result would be ten years and four months’ custody. That would obviously be much too long a sentence for an offender who was now just 19 years of age with relatively little by way of prior convictions. Discounting the total sentence to one of seven years produced a just and proportionate result. As it was necessary to correct the error arising from the learned judge’s misdescription of the sentence as imprisonment rather than detention, the court concluded that restructuring the sentence represented the more principled approach. Although certain elements required increase, that was balanced by reductions in others. The sentence would remain seven years in length, so the restructuring did not offend against section 11(3) of the Criminal Appeal Act 1968. This was in accordance with guidance given by the President of the Queen’s Bench Division in R v Thompson [2018] EWCA Crim 639 at paragraph 23. Given that the total sentence was appropriate in the context of the facts and the relevant guideline, it did not appear that the learned judge had given undue weight to local prevalence such as might engage the principles in Bondzie.
The court restructured the sentence as follows: on count 1, twelve months’ detention; on count 3, three years’ detention consecutive; on count 4, no separate penalty; on count 5, three years’ detention consecutive; and on count 6, no separate penalty, making a total of seven years’ detention in a young offender institution. In short, the appeal was allowed only to the extent of correcting the form of sentence and restructuring its component parts, whilst maintaining the overall term of seven years’ detention.