England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		14 February 2003

Lord Justice Potter:

1. The Attorney General seeks leave under s.36 of the Criminal Justice Act 1988 to refer to this court for review a sentence which he considers unduly lenient. We grant leave.
2. The offender is Thomas Joseph Joyce. He is now 29 years of age.
3. On 5 December 2001 the offender pleaded guilty to 7 Counts of an indictment, each charging him with robbery. On 26 April 2002 he pleaded guilty to 4 Counts of a further indictment each of which also alleged robbery. All 11 robberies were committed in the space of less than 3 months, 6 within the last 10 days of May 2001, the last 2 being committed on the same day, 30 May.
4. On 2 July 2002 the offender was sentenced by His Honour Judge Steiger, sitting in the Manchester Crown Court, to 8 years' imprisonment concurrent on 10 of the counts of robbery and 3 years' imprisonment concurrent for an offence of theft and for the last robbery committed on 30 May. Thus the total sentence in respect of all the offences to which he had pleaded guilty was 8 years.
5. At the time of the commission of those offences, the offender was on licence, having been released from prison on 19 January 2001 after having served two-thirds of a sentence of 7 years' imprisonment imposed upon him on 3 July 1997 in respect of 2 offences of robbery to which he had pleaded guilty. That being so, the judge ordered that his sentence of 8 years for the instant robberies was to be served consecutively to the remaining 600 days of the outstanding licence period from his previous conviction. Other counts were left on the file. The short detail of the relevant offences was as follows.
6. Indictment T20017319. Count 2: at 6pm on 26 March 2001, Mr Kendall, aged 61, was working in a garage alone in North Western Street, Ardwick. The offender arrived on a bicycle. He grabbed hold of Mr Kendall and both fell to the floor in the struggle which ensued, the offender producing a knife. He held it towards Mr Kendall's face and said "Give us your money. If you don't keep still I'll knife you". He stole £90 in cash from Mr Kendall and rode off on his bicycle.
7. Count 3. On 20 April 2001 Mr McGregor was working at a different service station in the Ardwick area. At 7.30pm, the offender walked in and started looking at goods on the shelves. He then walked up to the counter and spoke to Mr McGregor. He said "Its going to be like this, I want the money". He produced a blue Stanley knife with the blade exposed and repeatedly said, "I want the money". He became very aggressive, shouting at Mr McGregor who handed over all the money, namely £210. The offender said to him "If you press the panic button, I'll fucking cut you and I'll kill you and I fucking mean it". He then walked out of the door, repeating his threat. The close-circuit television recording from the service station was seized and the offender was identified from that video. The victim believed that the offender was going to use the knife if he had not co-operated and said that the whole incident had left him very shaken up and nervous.
8. Count 4. On 18 May 2001, Mr Wielden, one of the IT Support Personal at Manchester University was walking home from work at about 4.30pm in the afternoon when he was approached by the offender who asked him for a £1 coin. When Mr Wielden obliged, the offender asked for his wallet saying "We can do this the easy way or the hard way". He pulled out a small kitchen knife and Mr Wielden handed over two £10 notes from his pocket.
9. Count 5. On 21 May 2001 a Mr Grant had come into Manchester to go to a concert at the Apollo Theatre. He went to a nearby park to eat his sandwiches and was approached by the offender who produced a knife with a 4-inch blade and demanded £40 from Mr Grant. He said "Don't try any quick moves, I could cut your face three times before you could get off". He then took £90 from Mr Grant's wallet and told Mr Grant to walk off. Mr Grant too picked out the offender on an identification parade on 6 June. Mr Grant said that he suffered shock as a result of the incident.
10. Count 6. On 23 May 2001, at almost 7pm in the evening, a Mr Smith was at home in his flat in the Ardwick area together with a friend. The offender sounded the buzzer to the flat and, when it was answered, asked Mr Smith if he could use the toilet and have a drink of water. He then became aggressive and demanded money, brandishing a screwdriver in his hand and saying "Don't either of you make a move … I'll stick this in you". As Mr Smith had little money, the offender stole, and departed with, a video cassette recorder, some video tapes and a mobile telephone. He too was picked out by Mr Smith at an identification parade on 6 June. Mr Smith's friend was extremely shaken by the incident.
11. Count 8. On 24 May 2001, only 6 days after first being robbed by the offender (count 4), Mr Wielden was walking along with a work colleague when he was approached again by the offender who said to him "Who's this? Your bodyguard?" The offender then followed Mr Wielden and his colleague to an alleyway, stopped them, pulled out a screwdriver, pointing the sharp end at Mr Wielden, and robbed him, taking £10 from his pocket before running off. Mr Wielden picked out the offender on an identification parade on 6 June 2001.
12. Count 10. This count alleged theft of a Rover car belonging to Mrs Bennett which she left parked in Manchester and which was stolen on 30 May. It was worth about £2000. On 31 May the offender was seen by the police driving it, by which time it was bearing false number plates.
13. Count 11. On 30 May 2001 Miss Shore was working at a jewellery shop in Stockport on her own. The offender walked in at about 4.00pm and asked to look at a gentleman's gold bracelet, valued at £335. When Miss Shore refused to allow him to try it on and kept hold of it as it was put on his wrist, the offender violently snatched the bracelet and ran out of the shop. He was chased by someone else who had been in the shop who saw him get into the green Rover which he had previously stolen.
14. Indictment 20027771. Count 1. On 1 May 2001, Mr Klein was leaving his place of work and reversing from a private car park onto the street. He was driving his convertible BMW 328. The offender pulled up in a car behind him, got out and began being abusive and threatening through his open window. He demanded money from Mr Klein and called, within his earshot, to an accomplice in the other car to go and "Get the knife". When Mr Klein gave the offender £10, the offender opened the door and physically dragged Mr Klein out of his vehicle, driving off in it. It was recovered, abandoned, later.
15. Count 4. On 16 May 2001 Mr Gilman parked his car, a BMW Z3, in a car park. He returned to it, only to be aware of another man present. Mr Gilman got into his car and started it and was approached by the offender asking him for change as he was pulling out of his parking space. The offender opened the driver's door and tried to drag Mr Gilman from the car, producing a knife with a 4 inch blade. The offender told him to "Get out of the fucking car" and dragged Mr Gilman from the car. He got in and drove off at speed. The car was valued at £23,000 and has not been recovered. Mr Gilman stated that the incident had left him 'jumpy' and nervous.
16. Count 6. On 29 May 2001, Mr Southworth was driving his car into a car park in Manchester followed by the offender in a car which parked immediately behind him as he stopped. The offender got out and asked Mr Southworth the name of the street. He then said "I've got a knife, we can do this the easy way or the hard way. I don't want to cut you but I will, and don't try and run away or I'll let you have it". The offender took money from Mr Southworth's wallet, his mobile telephone and a laptop computer valued at £1500. He then made good his escape.
17. Count 7. On 30 May 2001, Mr Caine had left his office in Manchester at about 6.00pm and was walking in the street when the green Rover (stolen earlier that day) pulled up, driven by the offender. An accomplice of the offender opened the rear door of the vehicle and asked him for directions. When Mr Caine became suspicious and walked off, the accomplice got out and tried to take his briefcase but failed to do so. A struggle ensued during which Mr Caine was struck on the back but managed to run back to his office. The offender got out of the green Rover, followed Mr Caine and wrestled his briefcase from him, getting back into the car. He tried, but failed, to knock Mr Caine over. Mr Caine went to the car to try and recover his briefcase, and the accomplice in the rear seat began cutting Mr Caine with a knife in a slashing motion, causing small cuts to his left arm and one to his back. The car sped off. The offender was later identified by Mr Caine at an identification parade.
18. When arrested on 31 May 2001 the offender was interviewed on three occasions, making no reply to the questions put to him at all of them. However, following his identification by a number of the complainants on 6 June, he pleaded guilty as previously indicated.
19. It is agreed between counsel upon this appeal that the following aggravating features related to the robberies described. (1) The robberies appear to have been premeditated rather than 'spur of the moment' and to reveal a certain 'modus operandi' in respect of targeted pedestrians on the one hand and car drivers on the other. (2) In all cases, save one in which no weapon was seen and another in which the knife was in the hands of an accomplice, the offender carried a knife or screwdriver with which to threaten intended victims. (3) In one of the robberies a knife was actually used to injure (albeit by an accomplice) causing cuts to the victims back and hands. (4) Threats of violence, including threats to kill were made towards a number of victims. (5) In at least two robberies the offender had accomplices. (6) Two of the robberies were committed inside the victims' homes. (7) The offender was on licence at the time of commission of the offences for two offences of robbery. In the first of those offences, the offender had obtained entry to the home of a 57 year old man upon some bogus excuse and had then threatened him and his 64-year old next door neighbour (who was with him) with a butcher's knife in order to steal items from them. A few days later he returned to the house of the next door neighbour on the same pretext, uttering further threats in order to steal other goods and informing the victim "If you grass, you are a dead man".
20. The only positive mitigating feature which appears to be present is the fact that the offender recognised his guilt and recorded early pleas in respect of the Counts in the first indictment, although in relation to the second indictment his pleas were recorded at a relatively late stage. What may however be regarded as noteworthy in respect of all the robbery offences is that, while threats accompanied the production of a knife for the purpose of frightening the individuals concerned, neither the knife nor any other weapon was ever actually used by the offender to harm them, the presence of the knife and the uttering of threats being sufficient to achieve the offender's object.
21. It is the submission for the Attorney General that the concurrent sentences of 8 years in respect of each robbery failed adequately to reflect the overall seriousness of those offences or the need for protection of the public, in which respect he asserts that an indeterminate life sentence, or a longer than commensurate determinate sentence would have been appropriate. In this respect we have been referred to the following authorities. Bola 15 Crim App R(S) 78, Cochrane 15 Crim App R(S) 708, Mansell 15 Crim App R(S) 771, Oudkerk 16 Crim App R(S) 172, Samuels Crim App R(S) 856, all in relation to longer than normal sentences under the Criminal Justice Act 1991 s.2(2)(b); Attorney-General's Reference No.32 of 1996 (Steven Allan Whittaker) [1997] 1 Crim App R(S) 261, Jamie Lee Chapman [2000] 1 Crim App R(S) 377, Wilson [2000] 2 Crim App R(S) 323 in relation to the imposition of indeterminate life sentences under the Powers of Criminal Courts (Sentencing) Act 2000 s.82A; and, in respect of the appropriate determinate sentence Attorney-General's Reference (No.9 of 1989) [1990] 12 Crim App R(S) 7 (Stephen Lloyd Lacy), Easterbrook [1990] 12 Crim App R(S) 331, Attorney-General's Reference (No.29 of 1995) (Daniel Ivor Mighty) [1996] 2 Crim App R(S) 60 and Ebanks [1998] 2 Crim App R(S) 339.
22. The Attorney-General submits that the overall sentence of 8 years' imprisonment on the offender was unduly lenient in the light of his record, the pattern of his offences, and the need for the public to be protected from his future activities. He points out that at the age of 29, the offender has been convicted on 15 different occasions involving 66 offences of which 9 are convictions for robbery. Over the last 6 years, the picture is as follows. He was convicted of robbery in September 1994 and sentenced to 3 years imprisonment. Having been released, but before the expiry of that term, he committed two further robberies for which he received the sentence of 7 years to which we have already referred and, following his release, while still under licence he embarked on the 'campaign' of 11 robberies committed between March and May 2001 for which he fell to be sentenced. In those circumstances, it is submitted that the appropriate sentence would have been an indeterminate life sentence pursuant to s.82A of the Powers of Criminal Courts (Sentencing) Act 2000: see Archbold (2003) at 5-201 and 'Notes on Life Imprisonment' with authorities there cited at 5-203 to 5-205. In the alternative, it is submitted that the judge should have imposed a sentence longer than 8 years in total for the robbery offences, pursuant to s.80(2)(b) of the same Act. We therefore turn to list the criteria to be addressed, which are, of course, overlapping in that a discretionary life sentence is deemed to be a sentence that is longer than is commensurate with the seriousness of the individual offence.
23. The circumstances in which a discretionary life sentence may be imposed appear clearly from the judgment of Lord Bingham CJ in A-G's Ref No.32 of 1996 (Whittaker). First, the offender should have been convicted for a 'very serious offence', i.e. one which is sufficiently serious to justify a 'very long' sentence: see also Hodgson (1968) 52 Crim App R 113 and Chapman. Second, there must be good grounds for believing that the offender may remain a serious danger to the public, in respect of serious offences of violence or of a sexual nature, for a period which cannot be reliably estimated at the date of sentence.
24. In that latter connection, the fact that the offender has committed a grave offence does not in itself ordinarily satisfy the criterion of future dangerousness, nor (while it is highly relevant) will it necessarily be sufficient that the offender has persistently committed offences over a long period prior to the offence or offences for which he has been sentenced. Again, (while it is not essential in all cases), evidence as to the offender's mental state is highly relevant and the court will generally derive assistance on the question of future dangerousness from medical evidence and/or a psychiatric report expressing an opinion as to the risk of future offending if the offender is at large. The assessment of an experienced probation officer or social worker acquainted with the offender may also provide assistance.
25. Finally it is to be observed that (1) as made clear in Chapman, there is an interrelationship between the gravity of the offence for which the offender is being sentenced, the likelihood of further offending and the gravity of further offending should it occur; (2) a life sentence should not be passed if the safety of the public can be secured by a shorter determinate sentence whether commensurate or longer than commensurate under s.80(2)(b).
26. There were before the judge in respect of the offender two reports addressed to the question of the likelihood of the offender re-offending and the risk of future harm to the public. A report from the Senior Probation Officer for Greater Manchester was prepared in accordance with the order of the court. Although the writer had personally only one cell interview with the offender, she stated that she had also had access to the relevant witness statements and the offender's antecedents, as well as to Probation Service records, she stating that the offender had been well known to the Probation Service for a number of years and most recently from the period of licence supervision following his early release from his previous 7-year prison sentence. Under the heading 'Offence Analysis' she observed:

"2.2 … It is clear that these offences were premeditated, determined and threatening in their intent. Thomas Joyce acknowledges the likely impact on his victims and expresses remorse.

2.3 In my assessment, whilst Thomas Joyce accepts responsibility for his actions, this is to a limited extent in that he rationalises his behaviour by his need for money to buy illegal drugs.

2.4 I have no doubt that Thomas Joyce now regrets his behaviour and is troubled by the consequences. However, his understanding lacks depth and appears to be related largely to an awareness of the immediate impact upon his own circumstances."

27. The writer noted that dependence on illegal drugs was the motivating factor behind the current offences. She stated that, whilst he had kept appointments under the terms of his licence and shown some positive willingness to engage in work on that issue, he had breached his conditions by the fourth month of release and was arrested for the current offences shortly afterwards. She stated that his adolescence and young adult life had been dominated by substantial terms of imprisonment, his offending beginning when at the age of only 10 he experienced early disruption by being taken into local authority care. She observed that he carried a 'significant legacy' from his past which had a bearing on the nature and persistence of his offending. Under the heading 'Assessment of the Risk of Harm to the Public and Likelihood of Re-offending' the report went on:

"4.1 Thomas Joyce is regarded as posing a high risk of harm to the public and a high risk of re-offending. There is no information from his licence period to suggest any substantial cause to reassess this.

4.2 There is also evidence that Thomas Joyce has experienced considerable discrimination as a member of the travelling community which appears over the years to have become a source of conflict for him, particularly in terms of his dealing with people in authority."

28. She expressed the view that the only means of containing the risk which he presented was a substantial term of imprisonment. At the same time she recommended a comprehensive assessment of the 'broad mental health/forensic psychological issues'.
29. That was provided by the report of a psychiatrist, Dr Michael Cooper. He described the offender's childhood after the age of 8, when his mother died and his father went to prison, as one in which he stopped attending school and spent much of his time committing acts of petty crime with his cousins. This included breaking into cars and stealing stereos, which progressed to more serious crimes such as robbery, crime having been a normal part of his life amongst his peers. He had spent most of his adult life in prison and never held down any kind of employment and consequently, after release from custody, resumed his offending behaviour. From the age of 23 he had been addicted to crack cocaine and heroin, suffering withdrawal symptoms when he was abstinent and committing acts of crime as the only way to fund his habit. He also stated that, while he was not a regular drinker, drinking alcohol made him act in a violent manner. Dr Cooper described the offender as generally pleasant and co-operative with no evidence of mental illness or cognitive impairment. The offender's insight was such that he believed his offending behaviour was all as a direct consequence of drug misuse and that if he were able to receive help for this the chances of further re-offending would significantly decrease. He also felt that, once released from prison, he would be able to provide for himself and his family by obtaining employment with other travellers, rather than reverting to criminal behaviour.
30. In his opinion and recommendations, Dr Cooper emphasised the difficulty presented by the offender's drug dependence but, referring to his insight and desire to receive treatment, said that such treatment would hopefully be available to him via the prison health service and could be continued by the appropriate community drugs team following release. Nonetheless, the final paragraph of his conclusions read as follows:

"With regard to further risk of future offending behaviour, I feel it should be pointed out that although Mr Joyce's drug use and the treatment of such is likely to be an important risk factor in future offending, his criminal career, which includes violence and aggression, significantly predates the onset of this drug taking. He has also continued to be involved in aggressive behaviour whilst in the relative drug-free environment of prison custody. This suggests that pre-dispositional factors are also highly significant in his offending behaviour. As such, given his extensive criminal history, his likelihood of further re-offending remains high, irrespective of the success of any treatment for his drug taking."

31. Faced with that material, the judge was plainly exercised as to whether this was a case for an indeterminate life sentence. Indeed, we have been informed that following a plea of mitigation on the offender's behalf by Mr Meadowcroft, who appears for him today, the judge adjourned the matter so that he could consider it anxiously overnight. It is plain that, next day, he had formed the view that a determinate sentence was in fact appropriate. He dealt with the offender quite shortly, observing in this respect:

"You have 9 previous offences for robbery on your criminal record and one for an offence of assault with intent to rob. I have carefully considered, given your record and disposition to use serious violence, whether a sentence of life imprisonment was appropriate but I have come to the conclusion, assisted in part by Mr Meadowcroft's submissions, that you do not pose such a great risk to the public as would justify that Draconian course."

32. No part of the judge's sentencing remarks revealed his view of the effect of the risk assessments which had been before him. However, it is apparent from the transcript of counsel's mitigation that Mr Meadowcroft urged upon him that, serious as the offences of robbery were, they were not 'very serious' in the sense of justifying a very long sentence. Nor was the second Whittaker requirement satisfied because (a) there was reason to think that the offender would get control of his drug habit before release from prison and would emerge older, wiser and more determined to avoid a return to addiction, (b) in any event the danger posed to the public was one of terror and threats and not a serious danger of serious harm. Mr Meadowcroft submitted that a substantial determinate sentence should suffice and was, in all the circumstances appropriate.
33. We turn first to the question whether, on ordinary principles of sentencing, and leaving aside the question of the necessity for the protection of the public in the future, a determinate sentence of 8 years imprisonment was appropriate. The authorities to which we have been referred cover a wide spread of examples and we have not found direct comparison possible. Whereas a sentence of 8 years was on a guilty plea, greater than that required in respect of a single offence of the kind indulged in by this offender, the seriousness here lay in the large repeated number of offences over a short period, committed within months of emerging from a sentence of 7 years previously imposed for similar offences. Plainly a very substantial sentence was called for. We have only been cited one case with which a direct comparison can be made, namely that of Ebanks (above) which was one of similar flavour involving multiple robberies within a short space of time committed by an appellant on licence at the time from an earlier sentence of 6 years' imprisonment for other robberies. While his modus operandi was similar, namely use of a knife to threaten his victims, there were more serious aspects to his case than in the case before us, namely more robberies, a worse previous record for robbery and the targeting of small shop premises with a single female assistant. In that case the appellant had received a sentence of 15 years imprisonment following a plea of guilty. The court described the sentence as 'severe but not manifestly excessive'. In the course of giving judgment, a number of earlier authorities were referred to, which to our mind did indeed indicate that, on a guilty plea, the sentence of 15 years was very severe. Certainly, it is a far higher sentence than appropriate in this case.
34. Nonetheless, the fact that the instant offences are multiple in character and committed while on licence for similar offences requires reflection in the sentence imposed, the totality for the whole being the relevant consideration. In our view, in the light of the number and seriousness of the offences, the starting point for the judge in relation to a determinate commensurate sentence should have been 12 years, had the offences been contested. A deduction of one third for the plea of guilty would thus yield a sentence of 8 years. Here, in the light of the identification evidence, there was perhaps little alternative to a plea; nonetheless the judge plainly gave full allowance for the appellant's plea. At the same time, he no doubt bore in mind, on the question of totality, that he was returning the offender to prison for the unserved balance of his outstanding term of imprisonment. Accordingly, leaving aside the question of public protection for the future, we do not consider the sentence to be unduly lenient.
35. So far as the aspect of danger to the public from the appellant's re-offending is concerned, the judge considered the question of imposing an indeterminate life sentence as is apparent from his remarks quoted at paragraph 31 above.
36. In elaboration of his submissions below, Mr Meadowcroft has urged the following matters upon us. First that, although the offences were all serious and involved threats with a knife, none involved any injury inflicted by the appellant or bore comparison with cases of robbery where a gun is used and/or injury inflicted. He submitted that they do not satisfy the first requirement of being sufficiently serious to justify a very long sentence. Second, he points out that the appellant has a drugs problem which has never been addressed but in respect of which he now appears to recognise the need for a solution. If available in the form of help in prison it may be effective to turn his life round on release. Finally, he submits that the case does not involve mental illness or instability of the type usually appropriate to an indeterminate sentence and generally does not have the 'feel' of a life sentence case for a man aged only 29 at the time of offending. Mr Meadowcroft relies upon the words of Lord Lane CJ in Wilkinson [1983] 5 Crim App R(S) 105 at 108:

" … Life imprisonment … must only be passed in the most exceptional circumstances. With a few exceptions … it is reserved … for offenders who for one reason or another cannot be dealt with under the provisions of the Mental Health Act … yet who are in a mental state which makes them dangerous to the life or limb of members of the public."

37. In our view, the number and nature of the offences qualify as grave enough to justify a very long sentence. We also consider that, in imposing the sentence that he did, the judge did not appear to give sufficient weight or emphasis to the real danger presented to the public from the appellant's re-offending. The absence of injury inflicted to date has given us some pause in this regard. However, knife wielding and threats of the kind employed by this offender are an inherently likely source, and pose a serious danger, of serious personal injury, whether physical or psychological, to members of the public (c.f. the definition contained in s.161(4) of the Act of 2000).
38. We are also concerned about the period of potential danger. The speed with which the appellant recommitted a series of robberies after release on licence from a substantial term imposed for similar offences gives rise to grave concern. This is a case where, in addition to the drug problem, the psychiatric report states that 'predispositional' factors arising from his 'extensive criminal history' suggest that the likelihood of re-offending remains high, irrespective of the success of treatment for his drug taking. Nonetheless, consideration of the report does not reveal evidence of mental health or instability, as opposed to a marked predisposition to crime, to the extent that, by the age of 30, the offender appears to be an habitual robber. Further, imposition of an indeterminate life sentence is, to use the judge's term, generally recognised to be a 'Draconian' remedy, reserved for the situation where the time for release is better left to the assessment of psychiatrists or experts in the art of rehabilitation, rather than the trial judge.
39. Here, as it seems to us, the judge was concerned with a persistent offender who, in the light of his escalating record, merited a longer than commensurate sentence. In our view, an appropriate longer than commensurate sentence would have been one of 12 years' imprisonment. However, in the light of the aspect of 'double jeopardy' and the necessity for the sentence to run consecutively from the balance of the licence period to be served, we quash the sentence of 8 years' imprisonment imposed upon ten of the eleven counts of robbery and substitute a sentence of 10 years' imprisonment on each, to be served consecutively to the outstanding licence period remaining.