Sentencing for Robbery

On 28 January 2016 the Sentencing Council published the new Definitive Guidelines for offences of robbery. The last Guidelines for Robbery was published in 2006; the new Guidelines will come into effect on Friday 1st April 2016.

The Chairman of the Sentencing Council, Lord Justice Treacy said: “We want to ensure that judges have comprehensive guidelines that help them sentence the great variety of offenders they have to deal with, which can include anything from a street mugging to a major robbery by an organised gang… Through these guidelines, we want to reflect the public’s concerns about crime involving guns and knives, so we are emphasising that those robbers who use such weapons to commit offences will face the longest sentences”

The Guidelines will apply only to offenders aged 18 and older. Sentencing young offenders will continue to be covered by the guidance within both the Sentencing Guidelines Council’s Robbery Definitive Guidelines (2006), and the Overarching Principles – Sentencing Youths Definitive Guidelines. Those guidelines will continue to be in force until they are replaced by any new and updated guidance, when issued by the Council.

The new Definitive Guidelines replaces the previous five categories (‘levels’) and now identifies three categories within the offence of robbery.

1. Street robbery and less sophisticated commercial robbery (which make up by far the largest proportion of such offences).

2. Professionally planned commercial robbery.

3. Robbery within a dwelling

Numbers two and three above mark a departure from the 2006 Guidelines, whose focus was on street robbery, robberies of small businesses and less sophisticated commercial robberies, leaving existing case law to cover both robberies within the home and professionally planned commercial robberies.

Although the Council has broadly not set out to increase sentences, the new guidelines reflects the increases in sentencing in recent years as the Court of Appeal Criminal Division has sought to make clear that sentencing for offences involving knives (Povey [2008] EWCA Crim 1261, R. v. Monteiro and Others [2014] EWCA Crim 747) or firearms (AG Reference 4-8 of 2014 [2014] 2 Cr App R (S.) 51) ought to focus on deterrence.

The new Guidelines, in line with the recent publications from the Sentencing Council (Fraud, Money Laundering and Bribery – for instance), divides offending behaviour into three categories of culpability (high, medium and lesser) and three levels of harm. In cases where there is group activity the focus is now also on the role played by the defendant; whether a leading or significant role or whether merely a limited function under direction. The Guidelines now – among other changes – requires the Court to consider the psychological effect of a robbery on the victim as well as the impact of having goods with sentimental value stolen.

Street robbery and less sophisticated commercial robberies

Culpability

High Culpability is defined as demonstrated by one or more of the following:

• Use of a weapon to inflict violence.
• Production of a bladed article or (imitation) firearm to threaten violence.
• Use of very significant force in the commission of the offence.
• Offence motivated or demonstrating hostility based on religion, race, disability, sexual orientation or transgender identity.

Medium Culpability is defined as demonstrated by one or more of the following:

• Production of a weapon other than a bladed article or (imitation) firearm.
• Threat of violence by a weapon which is not produced.
• Other cases where characteristics of high or lesser culpability are not present.

Lesser Culpability is defined as demonstrated by one or more of the following:

• Involvement through coercion, intimidation or exploitation.
• Threat or use of minimal force.
• Mental disability or learning disability where linked to the commission of the offence.

Therefore defendants who now either use a weapon to inflict violence or who produce a bladed article or firearm will be assessed as having high culpability, and will receive the longest sentences within the range.

This marks a departure from the 2006 Guidelines where the production of a weapon that was used to threaten would mark the offence only as ‘level 2’. The difference in sentence is a move away from the 2006 range of 2-7 years custody to a range of 4-8 years custody where there is no serious harm to the victim. Where serious harm is caused the starting point (8 years) and the ranges (7-12) remain unchanged.

Harm

The three categories of harm are

1. Serious physical or psychological harm caused to the victim or serious detrimental effect on the business
2. Other cases where 1 or 3 are not present
3. No or minimal physical or psychological harm caused to the victim / minimal detrimental effect on the business.

The 2016 Guidelines also now makes it explicit that the obtaining of items that are of high personal or sentimental value (whatever their economic value) is an aggravating factor. In the 2006 Guidelines the aggravating factor was stated only as ‘targeting of large sums of money or valuable goods’.

The list of aggravating factors has grown in number from 2006, although all of the factors mentioned within the 2016 Guidelines have long been treated as aggravating factors in any event. Factors reducing seriousness are similarly set out much more fully than was previously the case.

Robbery – Dwelling

The sentencing range for robbery in the home involving physical violence was said in the 2006 Guidelines, with reference to O’Driscoll (1986) 8 Cr App R (S) 121, to be 13 – 16 years. The 2016 Guidelines looks at the widest possible ranges of offending of this type – again adopting the culpability / harm assessment criteria. There is plainly overlap with sentencing for aggravated burglary.

High Culpability is assessed by the criteria as for street robbery with the addition of:

• The sophisticated organised nature of the offence.
• There being a leading role where offending is part of a group activity.
• Abuse of position.

Medium Culpability is assessed by the criteria as for street robbery with the addition of:

• A significant role where offending is part of group activity.

Lesser Culpability is assessed by the criteria as for street robbery with the addition of:

• Performing a limited function under direction.
• Very little or no planning.

The highest level of harm will be ascribed to cases where there has been serious physical and/or psychological harm caused to the victim, where soiling, ransacking or vandalism has occurred (as also appear in the Burglary Guidelines as a factor indicating greater harm) or where very high value goods were targeted or obtained. Again the definition of high value includes sentimental or personal value and what was treated as an aggravating factor only in a street robbery becomes in a dwelling robbery a defining feature of the starting point for sentence.

The ranges are

Only the very least serious cases are capable of being the subject of a suspended sentence order.

The presence of a child at home (or one who returns to the home) when the robbery occurred, a prolonged incident or attempts to conceal identity are all within the aggravating factors, as is the targeting of a victim due to a vulnerability (or perceived vulnerability). There is the possibility therefore of an offence falling into a ‘high culpability’ if it is found to be motivated by hostility to a person with a disability and then the sentence being further increased if the offence is found to be aggravated by the targeting of that person due to their disability. Offenders whose victims have been compelled to leave their home will receive higher sentences as will those whose victims have been restrained or otherwise detained or degraded. The timing of an offence is also an aggravating factor – offences committed at night no doubt being treated more seriously.

Professionally Planned Commercial Robberies

The sentences for this offence range from 18 months to 20 years. Previously the Guidelines had pointed to the case of Turner (1975) 61 Cr App R 67 which focussed on serious commercial robberies at the upper end of the sentencing range but just below the top level. The Court of Appeal there said that it had come to the conclusion that the normal sentence for anyone taking part in a bank robbery or hold up should be 15 years if firearms were carried and no serious injury done. In Wilson and others (1964) 48 Cr R 329 the Court of Appeal said – in upholding sentences for 30 years for the ‘Great Train Robbery’ – that 18 years should be about the maximum for crimes which were not ‘wholly abnormal’.

In these cases where commercial robberies have been professionally planned High Culpability will be found where:

• There has been the use of a weapon to inflict violence.
• A bladed article or (imitation) firearm has been produced to threaten violence.
• Significant force has been used.
• A leading role is played where there is group activity.
• An abuse of position.
• The offence is motivated or demonstrating hostility based on religion, race, disability, sexual orientation or transgender identity.

Medium Culpability will be found where:

• The weapon produced is other than a bladed article or firearm.
• A weapon is threatened but not produced.
• A significant role is played or
• Where factors indicating lesser or higher culpability are not present.

Lesser Culpability will be found where:

• The defendant performed a limited function under direction.
• The defendant was involved through coercion, intimidation or exploitation, or
• Mental or learning disability is linked to the commission of the offence.

The most serious cases of harm (Category 1) will see serious physical or psychological harm cause to the victim, serious detrimental effect on the business or very high value goods targeted or obtained. The least serious cases (Category 3) are where low value goods were targeted or obtained, where there has been minimal or no harm to the victim or where there has been minimal or no detrimental effect on the business.

The ranges are:

The additional aggravating factors include the location of the offence, which includes cases where the location of the offence is the victim’s residence – so where a robbery in a dwelling hat also serves as commercial premises is found to be professionally planned the starting point (for the most serious cases) goes up from 13 to 16 years and the range increases from 10-16 to 12 – 20.

In all cases of robbery the Court is required to consider dangerousness and whether it would be appropriate to impose a life sentence or an extended sentence.

In cases where the offence involves a firearm, imitation firearm or offensive weapon the court may consider the criteria in s19 Serious Crime Act 2007 for the imposition of a Serious Crime Prevention Order. Such an order may be imposed if the Court has reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime in England and Wales.

The 2016 Guidelines may be found at

http://www.sentencingcouncil.org.uk/wp-content/uploads/Robbery-offences-definitive-guideline-web.pdf

The 2006 Guidelines may be found at

http://www.sentencingcouncil.org.uk/wp-content/uploads/web_robbery-guidelines.pdf