Callum-Smith, R. v

Factual and Procedural Background

The Attorney General sought leave to refer a sentence passed on the Defendant in the Crown Court at Luton on 5 February 2020 under section 36 of the Criminal Justice Act 1988 as being unduly lenient. The Defendant, aged 32, pleaded guilty on 20 January 2020 to two offences of robbery contrary to section 8(1) of the Theft Act 1968 and invited the court to take into consideration two further robberies and one attempted robbery. The Defendant was sentenced to an overall term of five years and three months' imprisonment on the first count, with a concurrent term of three years and four months on the second count, alongside a victim surcharge.

The offences involved a series of robberies committed between 5 and 7 December 2019 at various convenience stores in Hemel Hempstead and Longlands. The Defendant and an accomplice, armed with weapons including a knife and hammer, threatened and intimidated store employees to obtain cash, alcohol, and tobacco products. Victims reported lasting fear and distress from these incidents.

The Defendant had a significant criminal history with 27 previous convictions for 60 offences, many related to dishonesty and including prior sentences for conspiracy to commit non-dwelling burglary. At the time of the offences, he was on licence from a previous custodial sentence. Mitigating factors included the Defendant's mental health issues, remorse, family circumstances, and drug addiction, which reportedly worsened after the suicide of a close friend.

Legal Issues Presented

1. Whether the sentence imposed on the Defendant for the robbery offences was unduly lenient within the meaning of section 36 of the Criminal Justice Act 1988.
2. Whether the sentencing judge properly applied the Definitive Guidelines for Robbery, including correct categorisation and appropriate consideration of aggravating and mitigating factors.
3. Whether the upward adjustment of the sentence from the starting point adequately reflected the aggravating circumstances, and whether the credit for guilty plea was appropriately applied.

Arguments of the Parties

Attorney General's Arguments

• The sentencing judge correctly categorised the offence as Category 2A but failed to sufficiently account for additional aggravating factors such as planning, group activity with the Defendant in a leading role, attempts to conceal identity, multiple previous convictions involving substance abuse, offending while on licence, and the inclusion of further offences taken into consideration.
• The upward adjustment of the sentence from five to seven years before applying a 25% reduction for the guilty plea did not adequately reflect these aggravating factors.
• The final sentence of five years and three months was therefore unduly lenient and should have been above the upper range of eight years for the category.

Defendant's Arguments

• The sentencing judge's approach was appropriate, including the categorisation and the balance of aggravating and mitigating factors.
• Mitigation included genuine remorse, acceptance of responsibility, longstanding mental health issues, drug addiction linked to personal tragedy, family responsibilities, and efforts to reform while in custody.
• The judge took into account the absence of forensic evidence linking the Defendant to the further offences taken into consideration and the prosecution's indication not to pursue those further.
• The sentence reflected a proper balance and was within the appropriate range given the totality principle and the Defendant’s circumstances.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court acknowledged the agreed categorisation of the principal offence as Category 2A under the Definitive Guidelines for Robbery, which sets a starting point of five years and a range of four to eight years' custody. It accepted the presence of numerous aggravating factors, including the Defendant's previous convictions, offending as part of a group, attempts to conceal identity, use of weapons, and commission of offences while on licence. The court noted that these factors justified an uplift from the starting point to seven years before credit for the guilty plea.

However, the court emphasized the mitigating factors, including the Defendant's remorse, mental health issues, drug addiction, family responsibilities, and efforts to reform. The sentencing judge had clearly balanced these factors and applied a 25% reduction for the guilty plea, resulting in the final sentence.

The court highlighted the limited scope of its power under section 36, which is to address sentences that are unduly lenient to a substantial degree, not to conduct a general review or substitute its own judgment. The court found that the sentence was at the lower end of the appropriate range but was not plainly outside the range of reasonable sentences given the circumstances and the judge’s reasoning.

Holding and Implications

The court REFUSED LEAVE TO REFER the sentence as unduly lenient.

The direct effect is that the Defendant’s sentence of five years and three months' imprisonment stands as imposed. The court did not set any new precedent or alter sentencing principles but reaffirmed the limited nature of the appellate power under section 36 and the importance of deference to the sentencing court’s exercise of discretion when it is within the appropriate range.