Nicholas Robinson; Burglary; 6 months: An appropriate sentence?

As the first cases make their way through to sentencing, one case has attracted much comment: 23 year old Nicholas Robinson, an Electrical Engineering student, who was sentenced to six months in prison for stealing bottles of water worth £3.50 from a branch of Lidl in Brixton.

I’ve already made clear my views on prison sentences of this length for non-violent offenders involved in the riots, so I want to look instead at whether the sentence was appropriate under the current sentencing framework.

Sentencers follow a defined process in determining the appropriate sentence (there’s even a handy “pullout card” at the back of the Magistrates Court Sentencing Guidelines):

1. 1. Offence seriousness (culpability and harm):
   • A. Identify the appropriate starting point
   • B. Consider the effect of aggravating and mitigating factors
2. Form a preliminary view of the appropriate sentence, then consider offender mitigation
3. Consider a reduction for a guilty plea
4. Consider ancillary orders, including compensation
5. Decide sentence and give reasons

So let’s follow that through.

Robinson is reported to have been charged with “burglary in a building other than a dwelling”. This is page 37 of the current Magistrates Court Sentencing Guidelines (PDF) (the MCSG), and page 18 of the standalone “Theft and Burglary in a Building other than a Dwelling” Guideline (PDF).

The offence is split into three for the purposes of starting points and sentencing ranges: Burglary involving goods valued at less than £2,000; Burglary involving goods valued at £2,000 or more but less than £20,000; and Burglary involving goods valued at £20,000 or more. At £3.50, the goods stolen by Robinson place him in the lowest tier.

The starting point for burglary involving goods valued at less than £2,000 is a medium level community order, with a sentencing range of a Band B fine to 26 week in prison.

(We can immediately see that Robinson received the maximum sentence for the lowest tier of the offence.)

A typical medium level community order is defined on page 161 of the MCSG:

• 80 – 150 hours of unpaid work
• Curfew requirement within the middle range (e.g. up to 12 hours for 2 – 3 months)
• Exclusion requirement (a ban from being in certain places, either at all, or at certain times)lasting in the region of 6 months
• Prohibited activity requirement (a ban from undertaking certain activities)

Durham and Tees Valley Probation Trust have a range of leaflets for offendors which are good guides to community order requirements, including exclusion requirements (PDF) and prohibited activity requirements (PDF).

Having established the starting point, the sentencer moves to consider whether there were any aggravating or mitigating factors. There is a standalone guideline dealing with seriousness, and this includes (pages 6 and 7) a long list of potential aggravating factors.

Two factors which are directly relevant to Robinson’s case are:

• Offenders operating in groups or gangs
• An attempt to conceal or dispose of evidence

The former clearly applies – he entered a store which was being looted, and was one of a number of individuals engaged in that activity – and the latter also seems to apply – “…when the police came in…he discarded the bottles and attempted to flee the scene”.

Could other factors be aggravating? The prosecution said:

“This defendant has contributed through his action to criminal activities to the atmosphere of chaos and sheer lawlessness.”

Importantly, the lists set out in the Guideline “…are not intended to be comprehensive and the aggravating factors are not listed in any particular order of priority” (page 6). It is therefore open to the sentencer to treat other relevant factors as aggravating. The fact that the defendant was taking part in large scale public disorder could potentially be treated as an additional aggravating factor in its own right. This is in fact what happened, with District Judge Alan Baldwin stating:

“The aggravating features are the background of serious public disorder and your part in that.”
London riots: Lidl water thief jailed for six months

Mitigating factors are also be considered. Of those specified in the standalone seriousness guideline, the only one which might apply is “The fact that the offender played only a minor role in the offence” (page 7).

At this stage, the sentencer should form an initial view of the appropriate sentence. In doing this, they must have regard to the starting point, and to the the threshold tests. As the starting point for this offence is a medium level community order, we are primarily concerned with the custody threshold:

Section 152(2) Criminal Justice Act 2003 provides:

“The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence.”
Overarching Principles: Seriousness (Page 8 )

In my view, it’s not at all clear that this threshold is passed. The sentencer had the option to impose a high level community order – additional unpaid work and curfew – and I cannot see why this could not be justified. In this case, District Judge Baldwin clearly thought otherwise, possibly in light of that background of serious public disorder.

At this stage, having formed an initial view as to sentence, the sentencer moves on to consider personal mitigation. In these circumstances, that means the defendant’s remorse, and Robinson’s defence counsel made the usual statement to the court in mitigation:

“Mr Robinson is incredibly ashamed. It was opportunistic. He was walking past. He saw the store was unsecure and got caught got up in the moment.”
London riots: Lidl water thief jailed for six months

Given the circumstances of the offence, it’s doubtful that this carried much weight.

The final step in defining the substantive sentence is to consider a reduction for a guilty plea. Robinson pleaded guilty, and could therefore reasonably expect a reduction of up to one third in his sentence. It appears that the District Judge formed a view that a sentence in excess of 26 weeks was appropriate, but that this could be reduce:

The judge said: “The burglary of commercial premises in circumstances such as this where substantial and wholesale public disorder has taken place is in effect what is commonly called looting.”
He said Robinson’s previous good character and early plea of guilty to a non-dwelling burglary, as well as the low value of goods stolen, the fact he was in education, and his remorse, were in his favour.
These meant he would not be sending the looter to the Crown Court where he would face a possible higher sentence.
London riots: Lidl water thief jailed for six months

Had he felt that a sentence in excess of 26 weeks (the maximum sentence he could impose) was appropriate and could not be reduced, he would have had to send the matter to the Crown Court.

The sentencer then moves on to consider ancilliary orders (such as compensation, anti-social behaviour orders, or various bans or disqualifications), before delivering the sentence.

So was Robinson’s sentence appropriate?

Even ignoring my in-principle objection to short custodial sentences for non-violent offendors, I don’t think it was. In particular, I do not see how the custody threshold was passed in this case. Tellingly, the MCGS says the following when describing a high level community order:

Offences only just fall below the custody threshold, or the custody threshold is crossed by a community order is more appropriate in the circumstances.
Magistrates’ Courts Sentencing Guidelines (Page 161)

In the District Judge’s place, I’d have opted for a high level community order, as follows:

• 300 hours unpaid work (the maximum)
• A 12 hour a day curfew for 6 months
• A 6 month exclusion order from the immediate area of the shop involved

This order involves a significant deprivation of liberty – via the curfew – and approximately 38 days of unpaid work by way of reparation to the community. It avoids interrupting Nicholas Robinson’s studies, or indeed the potential loss of his university place due to his imprisonment.

By contrast, the six month sentence imposed runs that risk, and is extremely costly: the government has previously stated that the cost of a six month prison sentence is around £25,000.

Far from being harsh, but fair, the sentence imposed on Nicholas Robinson simply looks expensive and unnecessary.

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