England and Wales Court of Appeal (Criminal Division) Decisions

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Cite as: [2005] EWCA Crim 468

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		Neutral Citation Number: [2005] EWCA Crim 468
		No: 200406314/A4-200406315/A4-200406317/A4

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
Strand
London, WC2
Monday, 21st February 2005

B e f o r e :

THE VICE PRESIDENT
(LORD JUSTICE ROSE)
MR JUSTICE DAVID CLARKE
MR JUSTICE TREACY
____________________

	REFERENCE BY THE ATTORNEY GENERAL UNDER
	S.36 CRIMINAL JUSTICE ACT 1988
	ATTORNEY-GENERAL's REFERENCE NOS 135, 136 & 137 OF 2004
	(KALEMI, SEJDIAL & DERVISHI)

____________________

Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
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(Official Shorthand Writers to the Court)

____________________

MR J LAIDLAW appeared on behalf of the ATTORNEY GENERAL
MISS D COOPER appeared on behalf of the OFFENDER KALEMI
MISS L SWEET appeared on behalf of the OFFENDER SEJDIAL
MISS J KRISH appeared on behalf of the OFFENDER DERVISHI
____________________

HTML VERSION OF JUDGMENT
____________________

THE VICE PRESIDENT: The Attorney-General seeks the leave of the Court, under section 36 of the Criminal Justice Act 1988, in relation to sentences said to be unduly lenient. We grant leave.

The offender, Dervishi, is 20, having been born in November 1984, the offender, Sejdial, is 21, having been born in January 1984. The offender, Kalemi, is 19, having been born in August 1985.

On 14th September 2004, on the day on which their trial was due to begin at Southwark Crown Court, Dervishi and Sejdial pleaded guilty to offences of robbery and possession of a prohibited weapon. Kalemi was tried by the jury who, on 17th September, convicted him of those same two offences. Sentence was adjourned for the preparation of reports.

On 12th October 2004 His Honour Judge Loraine-Smith, before whom the trial had been conducted, sentenced Dervishi and Sejdial to 4 years' detention in a young offender institution for robbery and a concurrent term of 12 months for possession of the prohibited weapon. He sentenced Kalemi to five-and-a-half years' detention for the offence of robbery, and a concurrent term of 12 months for the weapon offence. Kalemi had also pleaded guilty to offences of possession of a controlled drug of Class A and possession of another prohibited weapon, on a second indictment, on 10th June 2004. He was sentenced to concurrent terms of 1 year and 3 months' detention respectively in relation to those matters. The total sentence was therefore of five-and-a-half years on Kalemi and 4 years on Dervishi and Sejdial.

In summary, what happened was that, in the early hours of the morning, the three offenders, at a snooker hall in Deptford, carried out a robbery which had been carefully planned. They were armed between them with a stun gun and a cosh. They had waited several hours until the club was empty. They attacked the only member of the staff then left in the premises. He was subjected gratuitously to a brutal attack, with far more violence than was necessary in order to commit the offence. Approximately £1,600 was stolen. Apart from his physical injuries, the victim has suffered long-term damage to his mental health.

In a little more detail, the offence took place at the Shades Snooker Club. At 1.30 in the morning of 20th March 2004, the offenders arrived at the club. Normally it closes at 2.30 but it can stay open until 6.00 am, if there are still customers playing snooker. By about 3.45 am the only customers were the offenders. There was only one member of staff, a Mr Yaldiz, still there. He told them they could carry on playing until 6.00 am. A little later he went to the lavatory. When he came out he was confronted by the three men who attacked him. The tallest of the three, Sejdial, told him: "We will rob". They pushed him back towards the lavatory. Mr Yaldiz sought to resist and said that there were CCTV cameras in the club. One of the offenders said they were well aware of that, but the attack continued.

Mr Yaldiz noticed that the shortest of the three, the offender Dervishi, had the stun gun. He pressed it into Mr Yaldiz and repeatedly fired it, so that there were numerous discharges of electricity into Mr Yaldiz's body. Sejdial produced a cosh and struck Mr Yaldiz over the head four or five times. Fearing that he was going to be killed, Mr Yaldiz collapsed to the floor and pretended to be dead. Thereupon Dervishi delivered further charges of electricity into Mr Yaldiz as he lay upon the floor. £1,270 was taken from the safe and about £400 from the till. Some of the money was in National Westminster and Giro bank plastic cash bags. Before leaving, the offenders kicked open the door of the manager's office and removed from the CCTV system the videos which had, no doubt, been recording what happened. Outside the club there were two getaway vehicles ready.

Mr Yaldiz was taken to hospital. He had two cuts to his head and multiple lesions in his right flank, typical of those caused by the electrodes of a stun gun. In his impact statement he spoke of the psychological effect on him of the attack as outweighing the severity of the physical attack. He no longer feels safe at night. He is suspicious of others. He has nightmares. He was referred to a psychiatrist, who diagnosed depression and prescribed antidepressants. By reason of all of this, Mr Yaldiz's relationship with his pregnant partner has suffered and he is unable to work. He describes himself as "constantly feeling in a vacuum".

Dervishi and Kalemi were arrested in Highbury on 30th March 2004. They had large sums of cash in their possession. Money bags of the kind which had disappeared from the snooker club were also recovered. Kalemi was bailed and re-arrested on 6th May. Sejdial was arrested in Ilford on 22nd April 2004.

In interview, Dervishi said he had previously visited the snooker club but he denied any part in the robbery. Subsequently he was identified by the victim.

Fingermarks made by him were found on a glass recovered from the snooker table. Sejdial made no comment to the majority of questions asked of him in interview. His prints were found on a glass by the snooker table and on five of the snooker balls. DNA from Kalemi was recovered from another glass near the snooker table. He made no comment in subsequent interviews when he was questioned.

Telephone billing records were analysed and showed calls from Sejdial's mobile telephone to a former employee at the snooker club during the hours immediately preceding the robbery. The cell site evidence was consistent with each of the three offenders having travelled from Highbury to Deptford for the purpose of committing the offence and then returning to North London after the robbery.

Dervishi and Sejdial each produced a written basis of plea. The prosecution accepted neither. The judge indicated that he would not seek to allocate roles between the offenders but would pass sentence upon the basis that, as each had accepted their part in the joint enterprise, they shared responsibility for the acts carried out in furtherance of it. He considered the possibility of holding a Newton hearing but declined to do so in order to determine whether Dervishi was the one with the stun gun.

So far as the second indictment in relation to Kalemi is concerned, he was found on arrest to be in possession of two wraps of cocaine, each weighing just over 0.8 of a gram. He also had a CS gas cannister. He admitted in interview that the items were his.

Dervishi has previous convictions for offences of aggravated vehicle taking in 2001 and for theft and possession of cannabis in 2003. In May 2004, for possession of ammunition without a certificate and for two offences of handling stolen goods, he was sentenced to 12 months' detention. Sejdial appeared before the courts three times, in 2003, in relation to offences of burglary, theft and aggravated vehicle taking but he has not previously been sentenced to a term of custody. Kalemi has previous convictions for taking a motor vehicle without consent, in 1999, possession of cannabis, in 2000 and driving while disqualified in 2003 and 2004. In relation to his last conviction, he was sentenced to 5 months' detention.

The offender, Dervishi, came to the United Kingdom from Kosovo in 1998, when he was 13, having experienced violence and trauma without the benefit of family support. He had been in the care of the local authority until he was 16. The pre-sentence report describes Dervishi as "minimising his actions" and attempting to shift the blame elsewhere. He told the probation officer that he had committed the offence to clear a drug debt. According to the probation officer, there was an apparent escalation in the seriousness of Dervishi's offending and he was assessed as posing a medium risk of committing further offences of a similar nature.

So far as Sejdial is concerned, he too came to this country from Kosovo, in his case in 2000, when he was 16. He has since had no further contact with his parents. Although he accepted that the robbery was a joint enterprise, he sought to minimise his personal responsibility and to apportion blame to the others. He initially said that he had committed the offence to clear a debt but later conceded that he was paid to carry out the robbery. He had, according to the pre-sentence report, some degree of empathy for the victim but he did not appear fully to appreciate the consequences of the offending so far as the victim was concerned. Sejdial is described as naive and very susceptible to the influence of others. The risk of him committing further offences of a similar nature is assessed as high.

In relation to Kalemi, it was apparent at the time of the pre-sentence report that he continued to maintain his innocence. He told the probation officer that he had come from Kosovo in 1998, when he was 13 or 14, without his family, after his home and village had been destroyed in the war. He has some continuing contact with his mother, who is now in Albania. The likelihood of committing further similar offences was assessed as medium.

On behalf of the Attorney, Mr Laidlaw draws attention to what he rightly submits are a number of aggravating features. First, the robbery was carefully planned and well executed, with the benefit of some inside knowledge of the workings of the club. Secondly, the premises were deliberately targeted as having no sophisticated form of protection, that is to say they were particularly vulnerable. Thirdly, those committing the robbery were armed with weapons, both of which were capable of inflicting very serious injury. Fourthly, the offence was committed at night by three men. Fifthly, the victim was subjected gratuitously to excessive violence, including at a time when he was plainly incapable (being collapsed on the floor) of offering any resistance. Finally, the victim has suffered not only physical but also psychological damage.

In relation to Dervishi and Sejdial, Mr Laidlaw draws attention to the mitigation to be found in their pleas of guilty, albeit at the last moment; the fact that they are relatively young; and the fact that they have troubled backgrounds. The second and third of those factors provide mitigation also in relation to Kalemi. Mr Laidlaw submits that the sentences passed failed to reflect the gravity of the offences, and the aggravating features present and the need to deter others. He drew the Court's attention to three authorities: Attorney-General's Reference No 29 of 1995 (R v Mighty) [1996] 2 Cr App R(S) 60; R v Evans [2001] 1 Cr App R(S) 454 and R v Hooley & Ors [2001] 2 Cr App R(S) 105. In the last of those authorities Longmore J (as he then was), giving the judgment of the Court, said this (paragraph 24):

"We have been referred to various further authorities for the proposition that, after a guilty plea in the case of a corner shop or post office, or local village supermarket, the appropriate sentence would be about seven or eight years."

He went on to refer to a number of authorities which he identified.

The submission by Mr Laidlaw, in the light of all these considerations, is that the sentences passed on all three offenders were unduly lenient and are ones with which this Court should interfere.

On behalf of the offender, Dervishi, Miss Krish accepted that the sentence passed on him was clearly lenient. She stresses that it was passed nonetheless by a highly experienced judge. She seeks to draw a distinction, which the Court does not accept, between these premises and premises such as a corner shop. Both categories of premises, as it seems to us, are equally likely to be vulnerable for want of sophisticated defence against offences of this kind. She points out, in relation to the case of Mighty, that the defendant there was considerably older than any of these offenders, he had a substantial record of serious offending, and the victim was a woman at home at night. So far as the authorities of Hooley and Evans are concerned, she submits, rightly, that the physical injuries were extremely serious and certainly more grave than those in the present case. She stresses that, although the plea of guilty came late, it was entered. She stresses the age of this offender and she, of course, draws attention to double jeopardy, that is the fact that the offender is in this Court being sentenced a second time.

On behalf of Sejdial, Miss Sweet accepts that the case has the aggravating features identified on behalf of the Attorney-General. But she stresses that Sejdial is only 20 years of age and pleaded guilty albeit at a late stage. She stresses that he was, in his home country of Kosovo, a victim of ethnic cleaning without moral comfort from his family. She submits, having regard to that feature in particular, that the judge was right to reduce the sentence otherwise appropriate, to the extent which he did. Miss Sweet points out that, while in custody, Sejdial has reacted positively to his surroundings: he is described in a testimonial upon him as being a pleasure to teach. He has also achieved enhanced prisoner status. She too refers to double jeopardy.

On behalf of Kalemi, Miss Cooper adopts the submissions made by Miss Krish with regard to the authorities and adopts the submissions with regard to background made by Miss Sweet. She stresses that Kalemi was only 18 at the time of this offence and was the youngest of the three. She stresses the difficult upbringing which he has had, being, as we said at an earlier stage, in the care of the local authority before he came to this country. She stresses that he has deep-seated emotional difficulties. She submits that his role in the offences was the least of all three. She submits that he was vulnerable to being led by others, partly because of his age and partly because of his difficult background.

We should say that we are unpersuaded that there is any special feature in relation to difficult background arising from the fact that these offenders had an extremely troubled emotional past in Kosovo. Sadly, it is by no means unknown in these courts for defendants to appear before the court who come from violent family or criminal backgrounds. Although such a background may explain what a defendant does, it does not, in our judgment, serve significantly to mitigate the sentence otherwise appropriate for the conduct of which such a person is convicted or to which he or she pleads guilty.

We take into consideration all the circumstances of this case, as we have endeavoured to outline them. The sentences passed were, in our judgment, unduly lenient. Taking into account the ages of these offenders, we would have expected, following a trial, a sentence of at least 10 years in the court below. Had there been prompt pleas of guilty, we would have expected a sentence in the vicinity of 7 years.

Having regard to the very late pleas which were entered in this case, it seems to us that the appropriate sentence in the court below, in relation to Sejdial and Dervishi, would have been 9 years' detention in a young offender institution and following a trial, 10 years' detention in a young offender institution in relation to Kalemi.

We quash the sentences passed below. Taking double jeopardy into account, the sentence which we pass, upon Kalemi, is one of 8 years' detention. In relation to Sejdial and Dervishi, the sentence is one of 7 years' detention.