|Neutral Citation No:  NICC 29||Ref:|
|Judgment approved by the court for handing down||Delivered:||09/09/12|
|(subject to editorial corrections)*|
Bill number 11/054607 includes 9 offences all of which were committed on 2 July 2010.
The first offence is that of aggravated burglary when you and a youth, armed with knives, broke into a student house in the Stranmillis area at 1.30 a.m. The student and her partner were asleep, you demanded a car. You took the female student upstairs to get the car keys from the owner while the youth held the large hunting-type knife over her partner saying he was from the UDA.
Having taken the car, you drove it dangerously along Kennedy Way, went the wrong way round the roundabout, drove on the wrong side of the road and failed to stop for police. You were an uninsured driver, you refused to provide a specimen to facilitate analysis of the level of alcohol in your body and you resisted police when eventually you stopped the vehicle. On arrest you were found to be in possession of 8 bags of herbal cannabis.
On 28 January 2010 you robbed Tucker's Vivo store in the early evening where a young woman was working alone. You claimed to be from Oglaigh na hEireann and stole £200 and 2000 cigarettes.
On 20 March 2010 you robbed Nook newsagents in the evening where again the staff were female.
On 30 March 2010 you robbed the Wine Company premises at Ormeau Road taking banknotes.
On 5 April 2010 you and another person robbed the Spar Cliftonville Road armed with a screwdriver.
On 25 April 2010 you and another person entered Winemark premises on the Ormeau Road and you pointed a handgun at staff.
On 5 May 2010 you entered Winemark premises at Upper Malone with a knife and joined another person saying "this is a robbery".
On the same day you and another man entered Wineflair on the Antrim Rd in the early evening; two female staff were on duty.
On the same day you and two others entered Wineflair on the Upper Lisburn Road and you had a gun.
On 22 May 2010 at 7.55 am you entered Guys Shop on the Antrim Road armed with a 10 inch kitchen knife. You claimed to be from the IRA and left. You were using a jeep belonging to a Mrs Quinn who together with her husband had been the victim of your criminal behaviour earlier that morning.
At 5.30 a.m. you entered their home; they were asleep and you woke them up and told them that you were from Continuity IRA and hiding from police. You kidnapped Mrs Quinn whose husband was terminally ill and required her to drive you around west Belfast for almost an hour. You committed an assault on her by punching her on the face.
4. In summary, Mr Tate, according to the second bill of indictment during the period from the end of January until the beginning of July 2010:
• you robbed 9 premises and in each robbery you possessed an offensive weapon; your victims were in the main female staff and many of the robberies were committed during the hours of darkness;
• you entered as a trespasser two family homes during the night when the occupants were asleep. The victims in the first house were a lady and her terminally ill husband and you kidnapped the lady requiring her to drive you around west Belfast in the early hours of the morning and assaulting her and breaking her glasses at the end of that cruel episode. The victims in the second house were students and you took from that home a car which you drove dangerously around west Belfast before crashing the car and resisting police.
6. There is a Report on only one of your victims – Mrs Quinn who is still reliving regularly the horrible experience to which you subjected her. She wakens to the slightest sound and in order not to be reminded of the trauma she absents herself from her home returning there to sleep.
7. The first question which I have had to address, in the light of the fact that some of your offences attract the so-called "dangerousness" provisions of the Criminal Justice (Northern Ireland) Order 2008, is whether you present a significant risk of serious harm to the public occasioned by the commission by you of further specified offences. In carrying out that assessment the court, by the provisions of Article 15(2):
a) Shall take into account all such information as available to it about the nature and circumstances of the offences;
b) May take into account any information which is before it that any pattern of behaviour of which the offence forms part; and
c) May take into account any information about the offender which is before it.
In making that assessment I have the benefit of:
- A report from the Probation Service;
- A report from Dr East from whom I heard oral evidence on 4 May;
- A supplementary report from Dr East at my request.
The views of the Probation Service
- Your capacity for physical violence when confronted or challenged as highlighted by the fact that you have a conviction for AOABH and a previous conviction for wounding;
- Your capacity and potential for causing serious psychological harm and trauma through your offending behaviour;
- Your willingness to possess a weapon in the course of your offending to threaten, intimidate and to cause fear. You have admitted to being under the influence of alcohol and drugs when you possessed these items. The view of the Probation Service is that your behaviour posed a clear risk of harm to others had you been physically confronted or challenged;
- Your limited capacity to recognise the harm and injury you have caused by your offending;
- The offences to which you have pleaded guilty represent a continuation and escalation in your offending behaviour;
- You reoffended within 6 days of release from custody; you have failed to comply with post custody supervision;
- There is an absence of any identifiable protective, stabilising factors in your life;
- You have displayed an inability to recognise and self-manage the risks you pose to the community.
- Your previous offences; and
- The present offences.
He also referred to:
- Your home environment;
- Your failure to comply with supervision;
- The absence of any self-management or self-control;
- Your involvement with other offenders;
- Your commission of crimes while under the influence of alcohol or other substances
as other relevant factors in the assessment.
The views of Dr East on serious psychological harm
• You present a likelihood "that is more than mere possibility" of committing specified offences in the future; but
• You cannot be described as presenting a significant risk of serious harm to others.
"The aftermath of psychological trauma, long since studied in the context of war ("soldier's heart", "shell shock", etc.) can also occur as a result of trauma in civilian life. Bus drivers in large urban area are frequently aggressed. Over a period of 5 months, bus drivers who had been aggressed, employees of the largest French urban transport company (RATP), participated in a study designed to evaluate the effects of cognitive behavior treatment provided shortly after such aggression. A total of 132 bus drivers were included in the study divided into 2 randomized groups: a control group (67 subjects) received the usual medical-social care offered by the company, and a treatment group (65 subjects) who, in addition, benefited from 1 to 6 sessions of cognitive behavior intervention, including: evocation of the aggression, relaxation, role plays, cognitive restructuring. Subjects were evaluated by self-questionnaires a few days post-aggression and re-evaluated 6 months later. At follow-up, results showed a statistically significant decrease in anxiety levels (measured by the HAD scale) and intrusion of the traumatic memory (as evaluated by the Horowitz scale) in the treatment group. Hence, early and structured intervention appears to lessen the impact of the traumatic event on bus drivers attacked at work".
An almost identical abstract appears on the website of the American Psychological Association.
The clear inference from Dr East's supplementary report, based on the data to which he refers, is that post-traumatic stress disorder which lasts less than nine months could not be described as a condition from which recovery was difficult or impossible.
"The following may be used to specify onset and duration of the symptoms of Posttraumatic Stress Disorder:
Acute. This specifier should be used when the duration of the symptoms is less than 3 months.
Chronic. This specifier should be used when the symptoms last three months or longer"
The views of Dr East on the defendant
He drew attention to a number of matters:
• You have an extensive history of criminality;
• The index offences took place while you were subject to licence conditions and you have not complied with conditions imposed by the courts;
• Your offending behaviour is associated with intoxication on alcohol;
• There is no evidence that you have "distorted thoughts relating to violence";
• There is no evidence on your part of a "demonstrated capacity for the more serious violent offences";
• You had a disruptive early life having lost your father at an early age and having been hit by your mother who has been described as an alcoholic.
Assessment of significant risk
- the risk identified must be significant; this is a higher threshold than mere possibility of occurrence and can be taken to mean "noteworthy, of considerable amount or importance";
- the sentencer should take account of the nature and circumstances of the current offence, the offender's history of offending including not just the kind of offence but its circumstances and the sentence passed, whether the offending demonstrates any pattern, social and economic factors in relation to the offender including accommodation, employability, education, associates, relationships and drug or alcohol abuse, the offender's thinking, attitude towards offending and supervision and emotional state;
- sentencers should guard against assuming that there is a significant risk of serious harm merely because the foreseen specified offence is serious;
- if the foreseen specified offence is not serious there will be comparatively few cases in which a risk of serious harm will properly be regarded as significant.
" Article 3 of the 2008 Order defines serious harm as meaning death or serious personal injury, whether physical or psychological. In R –v- Terrell  EWCA 3079 Crim Ouseley J stated:
"The seriousness of the harm required by the Criminal Justice Act is emphasised by the words" death or serious personal injury". The latter phrase is deliberately coloured by the associated word "death", and stands in contrast with the language of the Sexual Offences Act and it is on the serious harm occasioned by that offender's re-offending which the Criminal Justice Act requires attention to be focused".
- you have committed a multiplicity of serious offences within a period of six months;
- the first of the offences, your robbery of the convenience store on 28 January 2010, occurred just 6 days after your release from prison having served a sentence of 7 years for robbery;
- that you were carrying a weapon is an indication of a degree of planning of the offences;
- at the time of the offences you were on Probation; you had refused to cooperate with Probation and were therefore subject to an arrest warrant issued by Belfast Magistrates' Court on 3 February 2010;
- in committing some of the robbery offences you threatened your victims with a weapon which on occasions you pointed directly at staff;
- during the course of an aggravated burglary by you and an accomplice of a dwelling on 2 July 2010 in the early hours of the morning a knife was placed on the chest of an adult male and a knife was waved aggressively at a female;
on 22 May 2010 having unlawfully entered a dwelling at 5.30 a.m. you claimed to be from the Continuity IRA and caused the female occupant to drive you in order to spare her terminally ill husband further stress and possible harm. When she resisted your attempt to steal the car you broke her glasses and punched her on the face.
"… Where the facts of the instant offence… are examined, it may emerge that no harm actually occurred. That may be advantageous to the offender… On the other hand the absence of harm may be entirely fortuitous. A victim cowering away from an armed assailant may avoid direct physical injury or serious psychological harm. Faced with such a case, the sentencer considering dangerousness may wish to reflect, for example, on the likely response of the offender if his victim, instead of surrendering, resolutely defended himself. It does not automatically follow from the absence of actual harm caused by the offender to date, that the risk that he will cause serious harm in the future is negligible.
Nothing in the decision in R v Shaffi (2006) EWCA 418, which was relied on before us, suggests the contrary. Giving the judgment of the court, at paragraph 11, Sir Richard Curtis summarised the various submissions made on behalf of the appellant. One of them was that the appellant's previous convictions demonstrated that although the appellant was carrying a knife and a screwdriver in two of the cases, no harm was actually occasioned. … Shaffi is not authority for the proposition that as a matter of law offences which did not result in harm to the victim should be treated as irrelevant. Indeed if that is what Shaffi, decided, it would, in effect, have re-written the statute."
"the commonly advanced submission that because the defendant has not yet caused serious harm, it necessarily follows that there cannot be a significant risk that he will do so in future… is wrong."
- your extensive criminal record;
- the number of offences for which I am sentencing you;
- the fact that you had just been released from prison at the time you committed these offences;
- your failure to comply with supervision;
- the fact that you have not caused serious physical harm in the past;
- the degree of stability in your life achieved by the birth of your daughter and reflected in recent positive developments in prison;
- the fact that you have been prepared in the past to use violence, albeit not serious, when your victims have failed to comply;
- the fact that you have carried weapons on a number of occasions.
Extended custodial sentence or indeterminate sentence
"… is concerned with the future risks of public protection. Although punitive in its effect, with far reaching consequences for the defendant on whom it is imposed, strictly speaking it does not represent punishment for past offending … when the information before the court is evaluated, for the purposes of this sentence, the decision is directed not to the past, to the future and the future protection of the public."
- a report of 8 June 2011 from Dr Harbinson consultant psychiatrist;
- two reports from Professor Davidson;
- your letter to the court which I read out yesterday.
You have a very unstable personal history, not having known your father, having experienced violence from your mother who suffered from alcoholism and having lived with your grandparents who according to your own account to the probation officer could not control you during your teenage years. Your offending began in your early teens and you have spent most of the last decade in prison. You committed the first of the offences which are before the court within 6 days of being released from custody after having completed a 7 year custodial sentence. Within two weeks of your release you were failing to cooperate with the risk management plan and not keeping probation appointments.
"guardedly optimistic that there is a possibility, maybe even a probability, of some control over your alcohol consumption mirroring the control which you have already exerted over your cocaine use."
Professor Davidson, whose supplementary report is based on a discussion with you in late January of this year, refers to some inconsistences in your accounts of your drug history which have caused him to temper his predictions of future long-term control.
• your empathetic expression of sympathy for Mrs Quinn;
• the fact that while your robberies were not inconsiderable in number and were frightening they were committed within a contained time frame and did not involve any actual violence;
• your age, background and personal circumstances;
• the objective evidence of an attitudinal change in you in the achievement of enhanced prisoner status and your nearly completed adept programme;
• your relationship with Charlene and your child and the evidence from your letter of the positive influence of Charlene on you
in support of his contention that your offences are at the low end of seriousness; that your dangerousness is at the low end and that therefore the scheme of an extended sentence is particularly appropriate to you.
• The involvement of more than one defendant;
• The defendant as ringleader;
• Offence committed during the hours of darkness;
• Victims were vulnerable;
• Possession of a weapon.
Mrs McKay suggests that an additional aggravating factor in the local context is the use of threats by reference to paramilitary organisations.
i) the use or threat of force against the victim;
ii) trauma to Mrs Quinn beyond that normally associated with this type of offence;
iii) the presence of the occupier at the time of the offence;
iv) two or more burglaries;
v) your previous convictions.
• in your cooperation on remand with the prison authorities in contrast to your previous behaviour in custody;
• in your participation in the adept programme;
• in your relationship with your partner;
• in your expressions of regret.
• your long history of offending;,
• the number and nature of the present offences including the aggravating factors;
• your involvement with unsuitable people;
• the fact that you committed the first of these offences within days of being released from prison after serving a long sentence;
• your failure to cooperate with probation in the period between that release and your arrest;,
• the minimisation of your behaviour which is referred to in the PSR.
It is therefore entirely understandable that the Probation Service see you as highly likely to reoffend and state that the difficulties in managing the risk you pose when in the community should not be underestimated.
53. Having considered all the material before the court, I have come to the conclusion that an extended custodial sentence would not be adequate to protect the public and that I should impose an indeterminate custodial sentence.
55. In the submission of Mrs McKay, the applicable guideline from the 2003 Sentence Advisory Panel on the robbery of small businesses, which suggests a range of 7 to 9 years on a guilty plea, would in the context of the number of your offences and the aggravating factors and the fact that you were a principal in many of the offences yield a sentence well into double figures. Mrs McKay refers to R-v- Dunbar  NIJB 73 in which a sentence of 15 years imposed after conviction was not interfered with by the Court of Appeal. She cites Attorney-General's Reference (No. 6 of 2006) as support for the imposition of consecutive sentences. Mr McCrudden does not dissent from this categorisation of your robberies as "of small businesses" but he emphasises the importance of the totality principle in determining the overall sentence you should serve for all your offences. He referred to the case of R v Coates in which the defendant had been sentenced to 8 years for 6 robberies and 3 attempted robberies; that sentence was reduced on appeal to 4 years.
56. Having considered the authorities to which I have been helpfully referred and the aggravating factors and the mitigating factor of your plea of guilty, a sentence of 9 years for each of the 9 robberies, each sentence to be concurrent, would be appropriate.
Sentences of 2 years imprisonment would be appropriate for each offence of possession of an offensive weapon and those sentences would be concurrent with each other and concurrent with the robbery sentences.
The offence of burglary of a dwelling house is and must be treated as a very serious offence involving as it does the intrusion into the sanctuary in which citizens should be entitled to feel safe and secure by day and especially by night.
- a sentence of 3 years for the burglary at the Quinn home and 5 years for the kidnapping of Mrs Quinn.
- A sentence for the burglary at the student house of 2 years with those 3 sentences being concurrent with each other.
"when offenders are to be sentenced for several offences only some of which are specified, the court which imposes an indeterminate sentence or an extended sentence for the principal offences should generally impose a shorter concurrent sentences for the other offences."
each of your other offences would attract lesser sentences which would be concurrent.
63. Taking account of this fact and the totality principle I am fixing the minimum term at 6 years. I therefore impose an indeterminate custodial sentence and order you to serve a minimum term of six years' imprisonment before you can be considered for release by the Parole Commissioners. The minimum term will include the period spent in custody on remand.