England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Friday, 24th March 2006

LADY JUSTICE SMITH:

1. On 18th February 2002 at the Crown Court at Kingston upon Thames, this appellant pleaded guilty to robbery (count 1) and possession of an imitation firearm at the time of committing an indictable offence (count 2). On 8th March he was sentenced to a mandatory term of life imprisonment concurrent on each count, these being a second serious offence pursuant to section 109 of the Powers of Criminal Courts (Sentencing) Act 2000. The judge stated that the commensurate determinate sentence for these offences would be 12 years and therefore recommended that the appellant serve a minimum term of five years and nine months' imprisonment before being eligible for release by order of the Parole Board.

2. On 24th June 2002 the single judge refused an application for leave to appeal against sentence and the applicant did not at that time renew his application. However, he applied to the Criminal Cases Review Commission and this hearing is a Reference by the Commission under section 9 of the Criminal Appeal Act 1995. The Commission has taken the view that there is a real possibility that the sentence will not be upheld because it considers that there is a new legal argument available to the appellant which arises from the way in which the sentencing judge applied the provisions of section 109. We say at once that we have considerable doubts about the validity of that particular argument. However, on reading the papers we came to the conclusion that there were real reasons why this sentence should be reconsidered by this court. We considered whether it was necessary for us to grant leave to appeal out of time against the sentence. However, on referring to the provisions of section 9 of the Criminal Appeal Act we are satisfied that it is within our power, once the Reference has been made, for this court to consider all matters pertaining to the sentence passed in March 2002.

3. As we have said, this sentence was passed under section 109 of the Act of 2000. Section 109, so far as relevant to this appeal, provides as follows:

   "(1) This section applies where-

   (a) a person is convicted of a serious offence committed after 30th September 1997; and

   (b) at the time when that offence was committed, he was 18 or over and had been convicted in any part of the United Kingdom of another serious offence.

   (2) The court shall impose a life sentence, that is to say-

   (a) where the offender is 21 or over when convicted of the offence mentioned in subsection (1)(a) above, a sentence of imprisonment for life

   (b) [is not relevant to this case]

   unless the court is of the opinion that there are exceptional circumstances relating to either the offences or to the offender which justify its not doing so.

   (3) Where the court does not impose a life sentence, it shall state in open court that it is of that opinion and what the exceptional circumstances are.

   ...

   (5) An offence committed in England and Wales is a serious offence for the purposes of this section if it is any of the following, namely-

   ...

   (g) an offence under section 16 (possession of a firearm with intent to injure), section 17 (use of a firearm to resist arrest) or section 18 (carrying a firearm with criminal intent) of the Firearms Act 1968; and

   (h) robbery where, at some time during the commission of the offence, the offender had in his possession a firearm or imitation firearm within the meaning of that Act."

4. The appellant was convicted of an offence of robbery in 1982 when he was 16 years old. At that time he lived with his mother and stepfather, who was described as a career criminal. The stepfather and the appellant together committed a robbery during which the appellant acted as getaway driver. At some stage the stepfather discharged a firearm. The appellant was arrested immediately after the offence. In due course both were convicted of robbery and possession of a firearm at the time of committing an indictable offence. The appellant was sentenced to five years' youth custody and his stepfather to 10 years' imprisonment. On account of those 1982 convictions, when the appellant was convicted in 2002 of the offence of robbery while carrying an imitation firearm, the judge was bound to sentence him to life imprisonment under section 109 unless he was of the opinion that there were exceptional circumstances relating either to the offences or to the offender which justified him in not doing so. We have already set out as much information as was available to the court in respect of the qualifying offence, that is the 1982 robbery. It seems reasonable to assume in the appellant's favour that he was not the prime mover in that offence and that he acted under the influence of a much older man, a hardened criminal and a man who was in the position of loco parentis to him.

5. The second and so-called trigger offence was committed when the appellant was aged 36. It was a serious offence. On 21st December 2001 at about 5 o'clock in the afternoon, two women, who were the staff at a pawnbroking business in Lower Marsh, London, were leaving the premises at the close of business when the appellant confronted them. He was wearing a scarf over his face and sunglasses. He pushed the manageress in the chest and told the women to go back into the shop. Once inside, he produced an imitation handgun and told them that he would not hurt them if they did what he asked. He told the manageress to open the safes at the back of the premises and the second member of staff to remove the jewellery from the display cases and put it in a bag. Unbeknown to him, the manageress activated a silent alarm and uniformed police officers arrived very quickly. They requested assistance from armed police. The appellant and the female staff were unaware that the police were in attendance. The manageress had some difficulty in opening the safes and the appellant told them that they would be sorry if the police came as there would be a hostage situation. Eventually the first safe was opened and the appellant put the contents into a bin liner. As the manageress opened the second safe, an audible alarm was activated. The appellant went to the front door where armed police challenged him. He ran to the back of the premises and asked the women how he could get out. When he realised that he could not escape, he began to pace up and down. He then put his imitation gun into one of the safes. Finally the women began to scream and the police forced entry into the premises and arrested the appellant. It was 5.20pm. The whole episode had lasted about 20 minutes.

6. Initially the appellant denied having a firearm and said that he had just pointed two fingers at the women. However the firearm was found in the safe. It was a plastic toy held together with Sellotape. The proceeds of the robbery, which would have had a value of about £28,000, were of course recovered. Both women were extremely shocked and upset as a result of their ordeal. They later received counselling and, in March 2002, at the time of the sentencing hearing, they gave victim impact statements. They said that they were recovering from their experience but were still apprehensive and were by no means fully recovered.

7. The video recordings from inside the premises showed that the appellant had not used any violence to the women and the tapes showed that he had made it clear to them that they would not be hurt if they did as they were told.

8. In interview the following day, the appellant admitted the offences and expressed remorse. He explained that his main motivation was that his sister had become embroiled with a drug dealer who alleged that she owed him a large sum of money, said to be £5,000. These drug dealers had threatened his mother and his sister with violence if this debt was not paid by Christmas. The appellant had voluntarily taken over responsibility for that debt and this was his way of raising the money. He also said that he wanted money to buy Christmas presents for his family.

9. The appellant has a bad criminal record. Following his release from youth custody, which would have been in about 1983 or 1984, he committed a variety of offences on a regular basis. These included driving offences and taking vehicles without consent. There were offences of theft, handling and also burglaries of commercial properties and dwelling-houses. In 1996 he was sentenced to two-and-a-half years' imprisonment for dwelling-house burglaries. On his release from that sentence his level of offending appears to have reduced. He was convicted of shoplifting and possession of drugs. Most of his offending was of acquisitive crime and was said to have been prompted by the need to obtain drugs to satisfy an addiction. It is worth noting that he has never been convicted of supplying drugs.

10. Between 1982 and 2001, there was no offence of violence. There was a conviction for possession of a CS gas canister, but for that offence he was fined £50 and it does not appear that the magistrates regarded it as a serious offence. Thus the offence of robbery committed in 2001 was out of line with the appellant's course of offending since his release from youth custody in about 1984.

11. There was a pre-sentence report before the judge which included, as is now required, an assessment of the risk of harm. At paragraph 11 of that report the author said this:

    "There is no doubt that Mr Collins' robbery caused the victims extreme fear and although I have no information about their circumstances since that event, it is possible that they may still be experiencing psychological distress which would affect their working or personal lives. According to the prosecution evidence Mr Collins expressed immediate remorse and in our interview he continued to do so, recognising that whatever his own intentions were he had caused the victims harm. Reviewing his similar conviction nineteen years ago, the circumstances were different. At that time he was an immature and impressionable adolescent, acting under the influence of an older, more sophisticated 'career criminal' who had assumed the role of a father-figure. On the present occasion his decision and actions appear to have been dictated by desperation and fear for himself and his family. In examining his offending in the intervening years, as recorded in reports and on file as well as from his own account, despite the serious nature of his convictions he has none for actual violence. He also appears to have maintained the capacity to empathise with his victims although this has not prevented him from offending to resolve his own problems. Taking account of all these elements I do not consider that Mr Collins poses a risk of serious physical harm to others, but the risk remains that he will reoffend should he feel 'cornered' by his circumstances into seeking an immediate solution to his difficulties. His life-experience seems to have left him poorly resourced to find alternative means, but I believe that specialist counselling and support could yet make good this deficit."

    In paragraph 12 she continued:

    "Mr Collins expects a substantial prison sentence today, although he has found it difficult to face the fact that this may be a life sentence. His distress is focused upon his mother, whose life expectancy is limited by her illness, and upon his nephew who is likely to be received into care if his mother is no longer able to provide support... I have discussed with Mr Collins whether there may be any risk of self-harm in the event of a life sentence."

    The conclusion was that there was not. She continued:

    "In my view a determinate sentence would be more likely than a life sentence to provide Mr Collins with the incentive to develop mature and legitimate problem-solving skills through courses addressing substance misuse, offending behaviour, employment training and life skills. He recognises that as he approaches his middle years his prospects will become increasingly limited and he appears genuinely motivated at present to effect the necessary change to reduce the risk of his reoffending. With a specific release date to work towards his motivation may be capitalised upon."

    It was submitted to the judge that there were exceptional reasons which would justify the judge in not imposing a life sentence. These related both to the offences and the offender. The mitigation which we have read was powerfully put and it made all the points which had been made in the pre-sentence report. It was stressed that the motivation for the recent offence had been an attempt to resolve a family problem rather than the funding of his own drug addiction.

12. In the course of that mitigation, counsel referred the judge to the case of R v Richards [2001] EWCA Crim 2712 which was at that time the most recent decision of this court on the correct approach to the application of section 109. We are told that he was also referred to the case of Offen and others [2001] 1 CrAppR 372, BAILII: [2000] EWCA Crim 96

13. In passing sentence the judge said that he had listened with care to everything counsel had said. He continued:

    "There are two matters which have been referred to which, I am afraid, I put a different interpretation upon. In relation to what you were saying to those terrified women, to the effect that you did not want to hurt them, that, in my judgment, was really reinforcing the fact that you had got a weapon pointing at them and you wanted them to comply with what you demanded. It was not to reassure them. Nothing you said could have reassured them - they were looking down the barrel of a gun. It was, quite clearly, a realistic looking weapon because you got rid of it the moment you knew that there were armed police there. You got rid of it for the very simple reason that you did not want to get shot.

    I consider the time since the robbery that you were first sentenced to a substantial period of custody - that was some considerable time ago - but you have committed serious offences in between.

    I have come to the conclusion that the presumption that arises under section 109 has not been displaced, and therefore I pass a sentence of life imprisonment upon you. The determinate sentence, or tariff sentence, for this matter would have been 12 years. Therefore, I specify that the minimum term to be served is one of five years and nine months. That takes into account the time you have been in custody."

14. In this appeal it is submitted that the judge misdirected himself in his approach to section 109. In particular it is said that when assessing whether there were any exceptional circumstances which justified him in not imposing a life sentence, the judge had adopted the wrong approach to the question of whether the appellant presented a risk of harm from which the public required protection. Section 109 and its predecessor, section 2 of the Crime (Sentences) Act 1997, have been considered in this court on a number of occasions. The leading authority is R v Offen (to which we have just referred). The court there gave authoritative guidance on how sentencers should approach the question of whether there were exceptional circumstances justifying a departure from what Parliament has said should be the normal consequence of the offender committing two serious offences. Giving the judgment of the court, Lord Woolf, LCJ, said that it was important the court should bear in mind Parliament's intention in establishing an automatic life sentence following the commission of two serious offences. The policy and intention was to protect the public against people who presented a significant risk of causing harm. Lord Woolf said that it could be assumed that Parliament did not intend that the section should apply to someone who did not pose a future risk. At paragraphs 109 and 110, he said this:

    "Section 2 [of the 1997 Act] establishes a norm. The norm is that those who commit two serious offences are a danger or risk to the public. If in fact, taking into account all the circumstances relating to a particular offender, he does not create an unacceptable risk to the public, he is an exception to this norm. If the offences are of a different kind, or if there is a long period which elapses between the offences during which the offender has not committed other offences, that may be a very relevant indicator as to the degree of risk to the public that he constitutes."

    Later in paragraph 110 he said:

    "Under section 2 it will be part of the responsibility of judges to assess the risk to the public that offenders constitute. In many cases the degree of risk that an offender constitutes will be established by his record, with or without the assistance of assessments made in reports which are available to the court."

    Later he said:

    "... if the judge decides not to impose a life sentence under section 2, he will have to give reasons as required by section 2(3). Furthermore, the issue of dangerousness will have to be addressed in every case and a decision made as to whether or not to impose a life sentence."

15. Since the decision in Offen, this court has had to deal with many appeals against life sentences imposed under section 2 of the 1997 Act and section 109 of the Act of 2000. We have been referred to three such cases. They are R v Smith and Fletcher [2001] EWCA Crim. 1700, July 2001; R v Richards [2001] EWCA Crim 2712, reported in November 2001; and Tonks [2004] EWCA Crim. 1392, reported in June 2004. We do not intend to cite at length from these decisions. They are not guideline or leading authorities. We shall do so only to the extent necessary to explain the submission made in this case.

16. In R v Smith and Fletcher, the court said at paragraph 22:

    "In a case which falls within the statute, the court must impose the automatic life sentence unless the sentencing judge does positively assess, and is of the opinion that in all the circumstances the offender does not pose a significant or unacceptable risk of serious and continuing danger to the public. The danger in point is that of violence or sexual offending. Unless the judge is of that opinion, an automatic life sentence must be imposed."

    In Richards the court expressed itself slightly differently. After referring to Lord Woolf's judgment in Offen, the court said:

    "The word 'significant' relates to the degree of the risk, not the gravity of the offences to which the risk relates. We think that the risk to the public which the court in Offen had in mind was the risk of the offender committing offences of some gravity in the future. These offences need not, of course, be offences of the kind identified in section 2(5) [this was a case under the 1997 Act] as serious for the purpose of section 2, nor even offences of violence. That is because section 2(5) merely identified what offences are serious for the purpose of determining whether section 2(1) applies so as to trigger the application of section 2, and it has no part to play in the determination of whether there are exceptional circumstances which justify the non-imposition of a sentence of life imprisonment within the meaning of section 2(2). Thus, to take a couple of examples, we do not think that a person whose offences of violence triggered the application of section 2 could be regarded as presenting a serious risk to the public if the risk was, not that he would commit crimes of violence, but that he would, say, be a persistent shoplifter. By the same token, a person whose offences of violence triggered the application of section 2 would present a significant risk to the public if the risk was that he would take part, say, in a conspiracy to import hard drugs into the U.K."

    Now it is said that there is a difference of significance between these two statements of the law and that what was said in Smith and Fletcher was an accurate statement of the law and what was said in Richards was not. We should mention that in Tonks the court expressed a preference for the way in which matters had been put in Smith and Fletcher. It was submitted that the judge had erred in his approach because he had been referred to Richards but not to Smith and Fletcher

17. For our part we do not think there is a difference of any real significance in the context of this case. Both courts were saying that the sentencer must make an assessment of risk. Lord Woolf in Offen had used the expression that there must be an assessment of dangerousness. In Smith and Fletcher the court said that what Parliament had in mind was the need to protect the public from violence or sexual offending. The court did not say that, in making that assessment, the court could not take into account a history of committing offences which do not of themselves involve an act of violence or an act of sexual indecency. In Richards the court said that the sentencer should be looking at whether there was a risk of the offender committing offences of some gravity in the future. By offences of gravity it is apparent that the court included grave offences which do not of themselves involve violence, such as importing hard drugs. It may be that in that respect the court was casting the area of risk somewhat wider than the court had indicated in Offen and/or that Parliament had intended. However we do not think that the fact that the judge in this case was referred to Richards and not to Smith and Fletcher necessarily means that he fell into error.

18. Our regret about this case is that the judge did not explain in rather more detail why he had concluded that the circumstances were not exceptional so as to justify his departure from the normal consequence of the commission of a second serious offence. It is true that the section only requires him to give his reasons if he departs from the norm and does not impose the life sentence, but good sentencing practice requires an explanation for all decisions and that is even more so where an indeterminate sentence is being imposed. Here the judge's reasons were brief in the extreme. He did not at any stage expressly address the issue of risk or dangerousness. He did not refer to the pre-sentence report. Thus it is not possible to see, without re-analysis, whether the judge's decision was justified.

19. Accordingly we propose to re-analyse the issues of risk, directing ourselves in accordance with the dicta of this court in Offen. We must consider the circumstances of the qualifying and trigger offences. We must consider all the material put before us including the antecedents and the pre-sentence report. We will consider, but put into a separate category, the information which we now have but which was not before the judge. We will then attempt to assess this man's dangerousness and the risk that he poses to the public. We will then consider whether that risk is of a sufficiently low level to justify the departure from the normal consequence required by section 109.

20. As we have already said, the robbery of 1982 was committed when the appellant was very young. He was under the influence of an older man, a hardened criminal, and one who must have had considered considerable influence over him. He himself did not use violence. We consider that that offence does not of itself demonstrate a propensity for violence.

21. The appellant's conduct over the ensuing years demonstrates that he has lived his adult life on the wrong side of the law. He commits offences regularly. He has been described in one report as a career criminal. That does not of course indicate that he is a violent man, but it is relevant to the risk that he poses. This history shows, that unless he can make a major reform of his lifestyle, he will present a continuing risk of reoffending. Major reform would entail making a break with criminal friends and associates, even some members of his own family. It would also entail making a break with his former drug addiction. We think that it is important to recognise that, during the long intervening period, this man did not commit a single offence of actual or threatened violence - we think we can safely ignore the possession of a CS gas canister. But that is not to say there have not been offences which, if repeated, do give rise to some risk of violence and harm. We have in mind the offences of domestic burglary. Burglary is a risky offence. It may give rise to unforeseen and unintended violence. The burglar never knows who might be in the house and how that person might react. Also domestic burglary can cause real psychological harm. It can even cause physical harm even where no violence is used. It is not unheard of for elderly people to suffer heart attack as a result of the shock of being burgled. So we consider that the risk of future offences of domestic burglary is relevant to the assessment of dangerousness.

22. The circumstances of the trigger offence were very serious. It is clear that the appellant did not intend to cause actual physical harm. He could easily have taken with him a real weapon, either a gun or a knife, had he been prepared to cause actual harm. As it was he caused quite serious psychological harm to the two members of staff. In his favour he pleaded guilty and expressed remorse at the earliest moment. He wanted to convey his apologies. This to our mind demonstrates that he does not think about the consequences of his actions to other people before he acts. From the material we have seen, we are inclined to accept that the main motivation for this offence was to obtain money to buy off the drug dealers who were threatening his sister and mother. But the fact that he was in that situation demonstrates an element of risk. He and his family, with whom he was still associating, were involved the criminal world and unless and until he can break those associations he will remain at risk of committing offences. It seems reasonable to us to conclude that, unless he can reform, there will remain some risk that he will commit this type of serious offence again and by that we mean the offence of robbery. It may be not be a very high risk, as is evidenced by the fact that he had not committed a serious offence of this kind for 19 years, but in our view the risk is inherent while he continues to live his life on the wrong side of the law in contact with drug dealers and the like.

23. We have already cited the relevant passages from the pre-sentence report. The author considered that, although there was a risk that the appellant would re-offend if he were cornered by circumstances, he does not, in her opinion, pose a risk of serious harm to others. She was of the view that a determinate sentence would give him greater encouragement to reform and shed his criminal associates and form a way of life. We think that that opinion is an important feature in this case and one to which, it may be said, that the judge did not give sufficient weight.

24. We think that that was the sum total of the information available to the judge, apart from a brief character reference from a man who had trusted the appellant to work unsupervised in his home.

25. We think that the judge had a difficult decision. This was not an obvious case for saying that the exceptional circumstances had been made out, justifying the non-imposition of a life sentence. There was an undoubted risk of reoffending on release. Crime was a lifetime's habit for this man but we think that the level of risk that he would cause serious harm was relatively low. He had caused such harm only once, so far as we know. We do not know what if any harm was caused in the 1982 offence.

26. Having taken all those considerations into account, we think that the judge was justified in imposing a life sentence. We do not think that it could be said that he had the necessary degree of confidence that the circumstances of the case taken in the round were such that an exceptional course should be taken.

27. We now have a good deal more material than was available to the judge. We have reports from the prisons where the appellant has been incarcerated, speaking of his participation in various courses and we are told of his apparent commitment to them and of the making of some progress. All that is very promising. On the negative side there have been occasions, and one occasion in particular, where he has been in receipt of a package of drugs from outside the prison and he has been disciplined for it. There have been other occasions when it has appeared that he has not been successful in ridding himself of his drug habit or addiction. In short, those reports present a mixed picture.

28. We have also seen a medical report which indicates that this appellant has very recently been diagnosed as suffering from lung cancer. That is plainly a matter of very great seriousness and great concern to him. It was at one stage of this appeal suggested that that was a matter that this court should bring into account when considering the judge's decision in 2002. It appears to us that we cannot do so. However, it is a matter that we are entitled to bring into account now. It is a matter which gives rise to great compassion but we do not consider that it can significantly affect our assessment of risk. We do not know what the prognosis of his illness is - it may be serious, it may not be. We think in those circumstances it is impossible for us to say that that factor should weigh significantly in our conclusion on risk of future harm.

29. Because the information that we now have is mixed in its import and because the information available to the judge was mixed, it follows that the whole picture is one with positive and negative aspects. That being so, we do not think it can even now be said that there are exceptional circumstances justifying the court in departing from what is the expectation in cases of this kind, namely the imposition of a life sentence. Accordingly, the life sentence must remain in place.

30. However, we have made it plain in the course of submissions this morning that we regard the judge's view on the appropriate tariff for this sentence as far too high. Assessing a tariff of 12 years for this offence after an early plea of guilty must have meant that the judge had in mind a sentence of 18 years following conviction after a trial. That in our judgment is far in excess of the appropriate tariff. We consider that bearing in mind (1) this man's previous record, including one offence of burglary, and his poor record in other respects, and (2) that the firearm was not a real one, that the tariff after a trial would have been of the order of 12 to 14 years. We think that bearing in mind the mitigation available to this man, in particular his early plea and expressions of remorse, an appropriate sentence would have been eight years. That being so, the direction that we make is that the minimum term that must be served by this man is one of four years, minus the three months that he had already served, which brings us to a minimum term to be served before consideration for release of three years and nine months. To that extent this appeal will be allowed. We are very grateful to counsel for their assistance.

31. Mr Metzer, you did ask for an extension of the representation order.

32. MR METZER: Yes, can I say this? The appellant was informed -- he made the application to the CCRC in person. He was informed by the CCRC that they would be referring the matter back. In the interim he instructed Hickman and Rose who took on the case pro bono to assist him because of the difficulty with liaising with the CCRC in the interim and they have taken an active involvement since. They have seen the appellant and perhaps more importantly collated all the material that was put before the court.

33. LADY JUSTICE SMITH: We had most of it. That little bundle today?

34. MR METZER: Yes.

35. LADY JUSTICE SMITH: Is that what they have done?

36. MR METZER: They have done a lot more but I shall not trouble the court too much. They have seen the appellant and they have dealt with a lot of correspondence and they have worked, if I may say so, hard on his behalf.

37. LADY JUSTICE SMITH: Very well. We accept that there is some additional material and we accept that it is difficult for the appellant to communicate with the CCRC from prison, so yes you may have your representation order extended to include the work that the solicitor has done. Thank you very much.