No: 201501315/A8 
Neutral Citation Number: [2015] EWCA Crim 1544
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Friday, 14th August 2015
 
B e f o r e: 

LADY JUSTICE RAFFERTY DBE 
MR JUSTICE FOSKETT
MR JUSTICE NICOL 
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R E G I N A 

v 

ERICO SOARES GAMA VIEIRA
 
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Mr C Myrie appeared on behalf of the Applicant
Mr J Foy appeared on behalf of the Crown

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J U D G M E N T
1.	MR JUSTICE NICOL:  At Snaresbrook Crown Court in January 2015 the applicant pleaded guilty to one count of robbery.  On 19th February 2015 he was sentenced by Mr Recorder Carey‑Hughes to an extended sentence of 4 years and 10 months, comprising a custodial term of 3 years and 4 months and an extended licence period of 18 months.  His application for leave to appeal against sentence has been referred to the Full Court by the Registrar.
2.	The victim of this robbery, Mr Hossain, had just got off a bus at about 4.15 am on 6th September 2014, when he was grabbed from behind by the applicant. The applicant put one arm around Mr Hossain's throat and pressed something small and hard into the small of Mr Hossain's back.  The applicant demanded his mobile.  There was a struggle.  The applicant said: "Give me your mobile or I'll kill you".  The mobile phone worth about £500 was handed over.  Mr Hossain tried to get away but fell to the ground where he was repeatedly kicked and punched by the applicant to the face and stomach whilst on the ground.  Mr Hossain did manage to grab at the applicant's wrist and he pulled off his watch.  DNA on the watch led to the identification of the applicant who was also picked out by Mr Hossain on an identity parade.
3.	The applicant is now 25.  He is from Portugal and notably had been convicted of three offences of robbery in Portugal.  He received suspended sentences each time.  He had received non‑custodial sentences in England in 2014 for handling and theft.
4.	A pre‑sentence report considered the risk of re‑offending was medium to high.  His spate of robberies showed that he was somewhat dangerous.  A supplementary pre‑sentence report was requested specifically to address the question of dangerousness.  The applicant told the probation officer, on this occasion, that two of the Portuguese robberies involved snatching necklaces from the necks of victims and he could not remember the third.
5.	Because of the index offence the use of alcohol and his association with like‑minded individuals, the probation officer considered the risk of harm to the public was high and that there was a significant risk of serious harm.
6.	The Recorder agreed with the report that the applicant posed a significant risk of serious harm by the commission of further specified offences.  He then said that in consequence it was his duty to pass an extended sentence.  He imposed the sentence to which we have referred.
7.	On his behalf Mr Myrie does not take issue with the custodial element of the Recorder's sentence.  But in his written advice on appeal he argued that the judge was not entitled to pass an extended sentence.
8.	We agree, but not for the reasons which Mr Myrie gave in his advice.  In our view, the Recorder was plainly entitled to consider that the applicant was "a dangerous" offender within the meaning of the Criminal Justice Act 2003.  Even without knowing more about the Portuguese offences the convictions themselves show the pattern of robberies by mugging.  The present offence was the more serious.  As the Recorder commented, kicking and punching Mr Hossain while he was on the ground was vindictive, over and above what was necessary and kicks to the face were particularly dangerous.  Whether or not serious harm was caused to Mr Hossain the facts of this offence, when taken with the previous convictions, did show a significant risk that the applicant might cause serious harm in the future.
9.	However, even if the statutory test of dangerousness is satisfied the Recorder was incorrect to say that he was obliged to pass an extended sentence.  He could only do so if further conditions were satisfied.  He could do so if the custodial term was to be 4 years or more ‑ see Criminal Justice Act 2003, section 226A(3).  In this case, that condition was not satisfied because the Recorder had a custodial term of 3 years and 4 months in mind.  He could also have passed an extended sentence if the applicant had previously been convicted of an offence listed in Schedule 15B of the 2003 Act ‑ see section 226A(2).  Schedule 15B allows a court to take into account offences committed in a Member State of the European Union but only if such an offence, had it been committed in England and Wales, would have been an offence within Part I of the Schedule ‑ see paragraph 49.  It will be recalled that the appellant had not just one but three convictions for robbery in Portugal.  Robbery is an offence mentioned in Part I of Schedule 15B, but only if the offender had in his possession a firearm or imitation firearm.  There was no evidence that the applicant had either at the time of any of his Portuguese robberies.
10.	Since the case came within neither of the alternatives where the Recorder could pass an extended sentence, it follows that it was not lawful for him to pass that sentence on the applicant.  The objection to the sentence was identified by the Registrar, to whom we are very grateful. The Crown accept the Registrar's reasoning is correct.  Accordingly, we will grant the applicant leave to appeal against sentence.  We will allow the appeal.  We will quash the sentence passed by the order and we will substitute a determinate sentence of 3 years and 4 months.  To that extent this appeal is allowed.