No: 200401325/A8-200401327/A8 
Neutral Citation Number: [2004] EWCA Crim 3048
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Thursday, 11th November 2004
 
B E F O R E:

THE VICE PRESIDENT
(LORD JUSTICE ROSE) 

MRS JUSTICE HALLETT DBE 

MRS JUSTICE DOBBS 

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REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 CRIMINAL JUSTICE ACT 1988 

ATTORNEY-GENERAL's REFERENCE NOS 21 & 22 OF 2004    
 
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Computer Aided Transcript of the Stenograph Notes of 
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MR E BROWN appeared on behalf of the ATTORNEY GENERAL 
MR P WALKER appeared on behalf of the OFFENDER ALI 
MR M HUSEYIN appeared on behalf of the OFFENDER JACKSON
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J U D G M E N T
1.	THE VICE PRESIDENT:  The Attorney-General seeks the leave of the Court, under section 36 of the Criminal Justice Act 1988, to refer sentences said to be unduly lenient in relation to two offenders, Kyrron Jackson and Ashraf Ali.  We grant leave.
2.	Jackson was born on 3rd December 1986 and so is now 17.  Ashraf Ali is 19, having been born in October 1985.  On 7th January 2004 both of them pleaded guilty to a number of offences.  In the case of Jackson, there was one offence of robbery of a mobile telephone, committed in November 2002 and three offences of handling SIM cards for mobile telephones, committed in December 2002. Ashraf Ali pleaded guilty to two offences of robbery, one of a mobile telephone and the other of credit cards and three of handling respectively credit cards, a mobile telephone and a SIM card, all of those offences being committed in November or December 2002.
3.	On 5th February 2004 both were sentenced by His Honour Judge Black at Harrow Crown Court.  In the case of Jackson a supervision order for 12 months on each count concurrently was made and an unexpired licence period was ordered to continue.  In the case of Ali, there was a 2 year community rehabilitation order with intensive supervision and a surveillance programme and a 6 month curfew from 9.30 pm to 7.00 am.
4.	There were co-accused.  Tavernier was sentenced to 2 years' detention for two offences of robbery and one of handling stolen goods, and Anyiam was sentenced to a supervision order for 2 years with an intensive supervision and surveillance programme and specified activities, in relation to one count of robbery and one count of handling stolen goods.  Both these co-accused had pleaded guilty in relation to the offences for which they were sentenced.
5.	On 6th January 2004 two other defendants had been sentenced by the same judge, Koranteng, who was 16, to a supervision order for 2 years, with an intensive supervision and surveillance programme and curfew order for 6 months, having pleaded guilty to attempted robbery, robbery and handling stolen goods, and Gbonda, who was 16, having pleaded guilty to two counts of robbery, was sentenced to 3 years' detention.  On 16th July 2004 Her Honour Judge Tapping, in relation to a defendant called Jarrell Edwin, who had pleaded guilty during the course of the trial against him, was sentenced to 12 months' imprisonment.  The Court has been provided with a schedule of a number of others, aged between 13 and 23, who were sentenced, on various occasions by the judges whom we have identified, to terms which ranged from the 3 year detention period passed in relation to Gbonda, to which we have referred, to a community punishment order in relation to a youth called Farrey-Jones, who was 20.  Other periods of detention or imprisonment, ranging between 12 months and two-and-a-half years, were passed on other defendants.  It is pointed out before this Court that the Attorney-General has not sought to refer the sentences passed on Jarrell Edwin and Farrey-Jones but, as it seems to us, no proper inference can be drawn by this Court in relation to that.  There are no details of the bases of pleas of the various defendants who were sentenced or of the degree of participation in the activities which we will shortly describe or of the presence or absence of criminal record of those who were being sentenced.
6.	In summary, and it is not necessary in this case to go further than to summarise the nature of the criminality, these two offenders were part of a group of young men and young women who travelled across London and into the suburbs, often late at night, or early in the morning, intent on robbing those using public transport of their mobile telephones or money.  The offences to which each of these offenders pleaded guilty took place in the time scale to which earlier we have referred, and we have sufficiently identified the nature of their conduct by reference to the offences to which they pleaded guilty.
7.	Jackson was stopped as part of a group who had been involved in a robbery on 26th October 2002 and on 16th November 2002. The offender, Ali, similarly, had been stopped on 22nd September 2002 and 26th October 2002. All the offences with which this Court is concerned, in relation to which both offenders had pleaded guilty, were therefore committed after each of the offenders had been released on bail.
8.	So far as Jackson is concerned, he, on 23rd January 2003, was made the subject of a referral order for theft, for snatching a lady's handbag at a railway station.  On 20th June 2003, following a trial, he was sentenced to a 12 month detention and training order at Croydon Crown Court, for an offence of robbery.  That had been committed on 12th February 2003, while he was on bail for the offences presently the subject of consideration.  He had been acting with five others.  On 19th November 2003 he was released from that custodial term and thereafter remained on licence to the Lewisham Youth Offending Team.  However, despite the progress which, at that stage, he was making, and to which in a moment we shall return, on 27th October 2004 he was sentenced to a 6 month detention and training order for offences of theft and assault occasioning actual bodily harm.  From this sentence he will be released on 26th December, but he will remain on licence until 6th November 2005.
9.	So far as Ali is concerned, in August 2000 he was placed under supervision for 3 months for burglary.  In March 2003 he was conditionally discharged for theft and on 15th August 2003 he was sentenced by the Crown Court to 6 months' detention and training for an offence of robbery similar to those presently under consideration.  That offence had been committed on 26th January 2003 while he was on bail for the present offences.
10.	On behalf of the Attorney-General, Mr Brown draws attention to a number of what he, rightly, submits are aggravating features.  First, both offenders were part of a large group of youths responsible for a number of robberies, and acting together in carrying out the offences.  Secondly, the group was large enough to be intimidating.  Thirdly, the robberies were carried out in public, on the public transport system, either late at night or early in the morning.  Further, the robberies were planned and the victims targeted were vulnerable.  The offences were committed in the way which we have described while on bail for other offences.  So far as Jackson is concerned, he received stolen goods soon after they had been taken from the victims of robberies.  It is to be noted that, in relation to both offenders, it is not suggested that either of them carried a weapon or used significant physical violence.  Both of them were sentenced on that basis.
11.	Mr Brown draws attention to a number of mitigating features in relation to Jackson. Each of these features is also included in the mitigation in relation to Ali.  First, the pleas of guilty. Secondly, the basis of the pleas, namely an absence of use of violence and not being the instigator of any of the offences. Thirdly, the youth of both offenders, to which we have already drawn attention, and fourthly, the periods served in custody by both offenders, after these offences had been committed and before they were sentenced for them in the Crown Court.  As we have already said, Jackson is now serving a further period of custody.
12.	The submission which is made by Mr Brown, on behalf of the Attorney, is that the sentences passed on these offenders did not adequately reflect the seriousness of the offences and the aggravating features to which we have referred, particularly the fact that these offences were committed in the course of gang activity, targeted at innocent travellers on the public transport system.  In our judgment, those who, in gangs, prey on innocent travellers on the Underground can expect to receive deterrent sentences and, save in the most exceptional cases, such exceptions arising, for example, by reason of extreme youth, they can expect to be subjected to a custodial term.  Even young offenders should expect to be sentenced to a significant period by way of detention and training order and, in some cases, to long-term detention, where a detention and training order does not meet the gravity of the offences and their culpability.
13.	As it appears to us, although we accept that the Crown Court judges imposing the sentences to which we have referred, carefully differentiated between the roles and culpability of the different defendants, the general level of sentences passed at the Harrow Crown Court was on the low side.  It would not be appropriate, in the absence of further information, to comment further than that.
14.	So far as these two offenders are concerned at first blush the sentences of a non-custodial nature which were passed upon both of them were clearly lenient and probably unduly lenient.  There were, however, the factors of their youth to be taken into account and, more particularly, the unusual circumstance that, prior to being sentenced at the Crown Court, they had both served periods of custody subsequent to the commission of these offences.  It follows that the sentencing judge was entitled, in alighting on the appropriate sentence, to take those matters into account.  Even so, as we have said, these sentences were clearly lenient and were probably unduly lenient.
15.	The question which then arises, on the assumption that they were unduly lenient, is whether this Court should now interfere with the sentences which were passed?  It is pertinent that all these offences were committed 2 years ago.  Two years is a significant period in the life of offenders now aged 17 and 19.  It is also apparent, so far as Ashraf Ali is concerned, that he has made outstanding progress, charted in the successive reports upon him.  It also appears that he has done all that could have been expected of him in complying with the conditions imposed upon him.  He has a number of certificates which have been placed before the Court by Mr Walker, which are tangible demonstration of the courses which he has been on and of the progress which he has made.  The clear message emanating from the report upon him prepared for this Court on 6th April, and a few days ago, is that he is motivated to secure positive change.
16.	In those circumstances, it is unsurprising that the reports suggest that the imposition of a custodial sentence, at this stage, would be a retrograde step which would not be of benefit either to him or to the public at large.
17.	So far as Kyrron Jackson is concerned, the reports upon him show that he, too, was making significant progress at the end of March 2004.  He had, at that stage, committed no offences since those to which we have already referred, and the omens were propitious.  Since that time, as we have already indicated, he has committed further offence resulting in the period of detention to which we have referred.  The submission which is made on his behalf by Mr Hussain is that, in view of his youth, the different rates at which young people mature, the basis of his pleas, the credit given by the learned sentencing judge for his plea, and the illness of a serious kind in relation to his mother, this Court should not interfere.
18.	So far as Ashraf Ali is concerned, for the reasons which we have adumbrated, in the light of the progress which he has made, we take the view that, in the exercise of our discretion, it would be quite inappropriate, at this stage, to require him to undergo the custodial term which, in the first instance, he was no doubt fortunate to avoid.  Therefore we make no order in relation to him by way of variation of the sentence which was imposed upon him.
19.	So far as Kyrron Jackson is concerned, his case has caused us considerably more anxiety because of his further lapse into criminal activity.  Not without a degree of hesitation, we take the view that our decision in relation to him, bearing in mind his age, should not be different from that in relation to Ashraf Ali.  Accordingly, in the exercise of our discretion, we do not interfere with the sentence which was imposed on him in the court below.