A nervous disposition
The Sentencing Council’s new Definitive Guideline on Robbery comes into force on 1 April 2016. The guideline addresses three distinct types of robbery: street and less sophisticated commercial robbery, professionally planned commercial robbery; and, robbery in a dwelling. The guideline provide welcome clarification, particularly in relation to robberies at the more serious end of the spectrum, but may lead to further confusion in respect of robbery in a dwelling when considered alongside the guideline for aggravated burglary.
Street robbery remains the most prevalent of the robbery offences identified in the guideline. The guideline deals with this type of robbery alongside less sophisticated commercial robberies, which take place on commercial premises or target commercial goods or money. The updated guideline makes clear that harsher sentences will be imposed on those who use or threaten violence with a knife or firearm (real or imitation). Offenders committing offences of this type will be found to have the highest culpability. Offenders using “a weapon other than a bladed article or firearm or imitation firearm” will be found to have a medium level of culpability under the new guideline.
This signals a distinct intention to penalise more harshly those convicted of offences using knives and firearms. (See our recent blog, "Tackling knife crime – A new police initiative and tougher sentencing announced"). This type of offence can vary widely in its seriousness and this is reflected in the sentencing, which ranges from a community order to 12 years imprisonment. Indeed, recent Crime Statistics published by the Office of National Statistics on 11 February, show that the police recorded 7,866 offences in which firearms were involved in the year ending March 2015, a 2% increase compared with the previous year. This was the first increase in offences involving firearms in 10 years. Offences involving knives or sharp instruments also rose by 2% between the year ending March 2014 and the year ending March 2015 (to 26,374). Whilst not all of these will be related to robbery of course, tackling this is an area of priority for the Home Office.
The new definitive guideline reflects the distinction between knives and firearms and other weapons in the two other categories of robbery: professionally planned commercial robbery and robbery in a dwelling. The guidelines suggests a sentencing range between 18 months’ and 20 years’ custody for professionally planned commercial robbery and between 1 year and 16 years’ custody for the offence of robbery in a dwelling. Whilst the creation of a separate guideline for professionally planned commercial robbery provides welcome clarity for sentencing those rare (but often high profile) heists involving organised gangs targeting high value goods, the new guidelines for the offence of robbery in a dwelling has the potential to cause some confusion and inconsistency with the guidelines in place for the similar offence of aggravated burglary.
The Definitive Guideline for Burglary was published in 2011 and for the first time set out a clear matrix for the sentencing of aggravated burglary. Aggravated burglary is committed when a person commits a burglary and has with him or her a firearm, or imitation firearm, offensive weapon or explosive. Before the Burglary Definitive Guideline was published the sentencing guidance suggested referring to the robbery guidelines when sentencing aggravated burglaries given the similarities between the two offences.
Comparing the new guideline for robbery in a dwelling with the guideline for aggravated burglary is therefore an interesting exercise. Whilst the sentencing range for aggravated burglary is 1 to 13 years’ custody, the range for robbery in a dwelling is 1 to 16 years’ custody. The starting points for each of the categories of offence (Category 1 being the most serious and Category 3 the least serious) are summarised in the table below. The differences are marked.
Of course the two offences, whilst overlapping, are distinct. There will be cases in which a robbery in a dwelling could not be charged as an aggravated burglary and vice versa. For example, if a person stole by threatening force whilst in a dwelling but did not have a weapon in his or her possession at the time, he or she could not be charged with an aggravated burglary. Additionally, if a person was to enter premises without permission, intending to steal by use of force using an offensive weapon, but did not encounter any person on the premises, this could not be charged as a robbery, but fits the definition of an aggravated burglary.
In reality, many offences of this type will fit both definitions so it will be necessary for those defending those charged with robbery in a dwelling to consider whether aggravated burglary is a more appropriate charge. Whilst the Robbery Definitive Guideline provides clarity on the whole, further guidance may be required on the distinction between robbery in a dwelling and aggravated burglary, particularly where regional variations in charging practice may result in anomalies and injustice.
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