Select Committee on Home Affairs Second Report

3  The draft guideline

10. Robbery is divided into categories to reflect the different levels of offending that the broad definition incorporates. The five generally accepted categories of robbery are: street robbery or "mugging"; robberies of small businesses; violent personal robberies in the home; less sophisticated commercial robberies; and professionally planned commercial robberies.

11. The first part of the guideline deals with three of these:

(1) Street robbery or 'mugging';

(2) Robberies of small businesses, and

(4) Less sophisticated commercial robberies.

The second part covers:

(3) Violent personal robberies in the home, and

(5) Professionally planned commercial robberies.

The Council has decided that there is currently no need to issue a guideline for these two categories, as the existing Court of Appeal guidance is thought to be sufficient.

Seriousness

12. The Council refers to the principles developed to assess seriousness, noting that "exceptional circumstances may justify a non-custodial penalty for adults and, more frequently, for a young offender".[10] It lists the relevant factors as: the degree of violence and injury to victims, the amount of force and fear caused, the use of force and the level of the threat of force, and the actual or threatened use of a weapon.

13. It details three levels of seriousness applying to all categories of the offence:

Level 1 the threat and/or use of minimal force;

Level 2 use of a weapon to threaten and/or use of force to cause injury, and

Level 3 use of a weapon and significant force, resulting in serious injury.

The relative seriousness of each level is determined by the individual details of culpability and harm caused, and the aggravating and mitigating factors that may apply. [11]

Sentencing ranges for young offenders

14. The draft guideline proposes the following sentencing ranges for young offenders (below the age of 18):

1. Threat and/or use of minimal force: starting point is a community order and the range is up to 12 months' detention and training order

2. Use of a weapon to threaten and/or use of force to cause injury: starting point is three years' detention, and the range is from 1-6 years' detention

3. Use of a weapon and significant force, resulting in serious injury: starting point is seven years' detention, and the range is from 6-10 years' detention.

15. These starting points are based upon a first-time offender of 17 who has pleaded not guilty. Sentencers are required to consider whether lower starting points should apply to younger offenders. The draft guideline specifies that immaturity, as well as age, should be taken into account.

Sentencing ranges for adults

16. The draft guideline proposes the following sentencing ranges for adults: [12]

1. Threat and/or use of minimal force: starting point is 12 months' custody and the range up to 3 years

2. Use of a weapon to threaten and/or use of force to cause injury: starting point is 4 years' custody, and the range 2-7 years

3. Use of a weapon and significant force, resulting in serious injury: starting point is 8 years' custody, and the range 7-12 years.

17. The sentencing ranges and presumptive starting points apply to all three categories of robbery listed above, and are based on a first-time offender pleading not guilty. Mitigating factors and/or personal mitigation can take a sentence below the starting point, and thus non-custodial penalties are possible for adults committing minor robberies. Equally, if the aggravating factors are very serious, the case may move to a higher level of seriousness, and therefore a longer sentence.

Aggravating and mitigating factors for adults and young offenders

18. Having established the category of robbery and the level of seriousness, the next step for the sentencer is to look at aggravating and mitigating factors. There is a list of generally applicable factors already in existence, set out in the Overarching Principles: Seriousness guideline which we reported on in 2004.[13] In the context of robbery, the Council has singled out as aggravating factors:

• the degree of force and level of the threat;
• the use of weapons;
• the vulnerability of victims;
• the number and roles of offenders;
• the value of property taken;
• the time of the offence (victims are likely to be both more vulnerable and more frightened at night), and
• the wearing of a disguise (balaclava or mask, for example, as this may indicate a degree of planning).

19. Mitigating factors are:

• lack of planning;
• peripheral participation;
• the voluntary return of property taken;
• evidence of remorse, and
• co-operation with the police.

Both types of factor could be present in the same offence, and must be balanced out. Personal mitigation has then to be taken into account, and the circumstances of each offender considered. The draft guideline requires that courts should also take into consideration whether this is a first offence of violence, and response to any previous sentence. Guilty pleas will attract some reduction, in varying degrees, depending on when they were entered.

Dangerousness

20. The Criminal Justice Act 2003 contains new provisions aimed at protecting the public from offenders posing a significant risk.[14] Put very briefly, where serious (punishable by 10 years' or more imprisonment) or specified offences (there are 153 listed categories of violent or sexual offences)[15] are committed, indeterminate sentences will result if there is also finding of significant risk of serious harm (death or serious physical/psychological injury) from further similar offending.

21. Previous convictions for specified offences entitle courts to assume (a 'rebuttable assumption') that the significant risk threshold has been passed. However, the Court of Appeal, in an important test case, has noted that these provisions are subject to reasonable interpretation, bearing in mind that the intention cannot have been for people convicted of relatively minor offences to serve indeterminate sentences.[16] It is likely that a significant number of those convicted of robbery will be sentenced under these provisions, but the nature of their impact is not yet known. The robbery guideline will provide guidance for the length of minimum terms to be served before the Parole Board can consider release in these cases.

22. Under 18-year-olds will receive extended or indeterminate sentences in similar circumstances, and minimum terms will be set in the same way as for adults. However, the courts are not entitled to assume the risk threshold has been passed where there are previous convictions. A very recent Court of Appeal judgement indicates that courts must be rigorous before concluding that there is significant risk: and that wherever possible trial should be in youth courts, which are best designed for the specific needs of under 18-year-olds.[17]

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10   Draft guideline page 4 para D Back

11   Listed on pages 4-9 of the draft guideline Back

12   See tables on page 12 of the draft guideline Back

13   See Home Affairs Committee, Fifth Report of Session 2003-04, Draft Sentencing Guidelines 1 and 2 (HC 1207) Back

14   Sections 224-30 Back

15   In schedule 15 CJA 2003 Back

16   In R v Lang and others (2005) EWCA Crim 2864 Back

17   R (on the application of the DPP) v South East Surrey Youth CourtAC 8 December 2005 Back

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Prepared 7 March 2006