England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Tuesday, 23 September 2008

1. MR JUSTICE BURNETT: On 3rd July 2007 the appellant was sentenced by His Honour Judge Niblett at Lewes Crown Court to a term of life imprisonment with a minimum term to be served of 10 years less time spent on remand. There were two counts before the court. First, conspiracy to burgle for which a sentence of five years concurrent was imposed, and second, conspiracy to commit aggravated burglary in respect of which the life term was imposed. The offences related to events which had occurred on 23rd and 25th June 2006. The appellant had pleaded guilty to these offences on 1st November 2007, having been arrested at the beginning of July.
2. The appellant was one of seven people sentenced for these conspiracies. The others received determinative sentences. One of those was a man called Carl Elliott who had no previous convictions. He was the organiser of the conspiracy. He received a sentence of 10 years on guilty pleas. He was present in the course of the first burglary but not in the course of the second.
3. Mr Sands who appeared for the appellant does not suggest that the life sentence was wrong in principle. Indeed he accepts that it was inevitable. However, he submits that the minimum period of 10 years is manifestly excessive, especially having regard to previous decisions of this court. He has drawn our attention to two cases in particular: O'Driscoll (1986) 8 Cr.App.R (S) 121 and Funnell and others (1986) 8 Cr.App.R (S) 143, both of which concerned aggravated burglary.
4. The statutory formula which the judge applied to reach the 10 year minimum dictated that his starting point, had there been a determinative sentence, would have been 20 years. The judge both recognised and stated that fact. But the appellant pleaded guilty at an early opportunity to these offences which means that if he had been convicted after a trial the judge's determinative sentence would have been in the region of 30 years. That, submits Mr Sands, is simply too much, despite the very serious nature of the offences and the appellant's very bad record.
5. The facts of these offences are appalling. The background involved a custody dispute over a seven-year-old boy who was the son of Carl Elliott's partner, Tracey Welsh. The boy stayed with his mother at weekends but lived with his father, Simon Angus, during the week. Mr Angus had a limousine hire business and lived with his partner, Joanne Mooney, and her seven-year-old daughter. They lived in a detached and relatively secluded house in Bexhill.
6. The custody dispute had become heated in the weeks before the offences were committed and included a row between Simon Angus and Carl Elliott outside the little boy's school. Mr Elliott organised the burglaries to get back at Mr Angus, to frighten him and to destroy his business.
7. The circumstances of the first offence were that on Friday 23rd June 2006 the house was broken into by a group including the appellant. A Range Rover was stolen from the drive and the house was ransacked. Jewellery, electrical goods and documents relating to the boy were taken. Cannabis and the paraphernalia of drug dealing were planted in the house, undoubtedly in an attempt to frame Mr Angus. No one was at home at the time.
8. The second burglary occurred two days later at about 5.00 in the afternoon on Sunday 25th June. Miss Mooney and her daughter were on the premises. Mr Angus was away taking clients to a concert in Milton Keynes. So it was that Miss Mooney was going to pick up the little boy later that afternoon. Having locked the house she was checking one of the cars when she heard her daughter scream out. Miss Mooney was then grabbed by the appellant who was wearing a Balaclava and holding a gun. The gun was real and, as the judge found, loaded. There were four or five other people present. All were concealing their identities in one way or another and some of them were carrying other weapons, namely a machete and a mallet.
9. The appellant told Miss Mooney that he was a professional hit man and would kill if necessary. He said that they had come to execute Mr Angus for having raped two young girls, which was a complete fabrication. Miss Mooney and her daughter were taken back into the house. The little girl was so terrified that she wet herself. Shortly afterwards one of Mr Angus' drivers, Jason Howard, arrived at the house to collect one of the cars. He was grabbed by one of the appellant's co-defendants and bundled into the house. He was told to lie face down on the floor and warned that he would be killed if he looked at the defendants. Then a woman joined the gang pretending to be the mother of one of the fictitious rape victims.
10. The victims of this appalling aggravated burglary, including the child, were tied up with black cable ties. The gang left the house when they realised that Mr Angus would not be coming back. They made off with money and credit cards, having extracted the PIN numbers from Miss Mooney. After about 15 minutes Miss Mooney was able to break free of her restraints and the police were called.
11. It is unsurprising, as it seems to us, that the adverse effects on the victims to these offences has been profound. The long-term impact on the little girl is unknown, but clearly the terror she experienced was dreadful. Both Miss Mooney and Mr Howard believed that they were going to be killed. Miss Mooney could not return to live in the house and so lived a nomadic existence for some time, relying on the generosity of friends. In due course the house was sold. The traumatic impact of these events on Mr Howard led him to a significant drop in income. He was simply too frightened to do long journeys or night driving. He was too nervous to allow his wife to continue working as a cab driver to the extent that she had done so before. Their whole family life was turned upside down. The significant drop in income led to them losing their home. At the time that the appellant was sentenced, Mr and Mrs Howard and their two children were living in a caravan.
12. The appellant was born on 5th March 1980, so he was 26 when these offences were committed. He had an extremely bad record. His first conviction was as a 13-year-old when he was convicted of having a blade in a public place. He then progressed to property crime, to grievous bodily harm and violent disorder as a 16-year-old. More property crime followed until in 1999 he was convicted of possessing an offensive weapon in a public place and then, in 2000, of aggravated burglary for which he received a sentence of 18 months. In 2002 he was convicted of two counts of robbery and two counts of having a firearm with intent to commit offences. On that occasion he received a sentence of four years. There was an additional offence of criminal damage in 2002. Not long after his release from prison the appellant was convicted of having a machete in a public place.
13. As we have said, the appellant was sentenced in respect of the offences before this court on 3rd July 2007, but on 26th January 2007 he had been sentenced at Winchester Crown Court for a series of serious firearms offences committed in 2005. There were two offences of possessing a handgun and two of possessing ammunition. He was sentenced to a total of six-and-a-half years' imprisonment.
14. There is no definitive guidance from the Sentencing Guidelines Council concerning aggravated burglary. However, the over-arching principles of seriousness suggest that the circumstances of the aggravated burglary, coupled with the absence of any mitigation of any weight, save the guilty pleas and remorse, places it at a very high level of seriousness indeed. The aggravating features appear to us to include:

(1) The use of a gun which was both real and loaded.

(2) The use of verbal threats of violence.

(3) The presence of many gang members and others armed with other weapons.

(4) The wearing of disguises.

(5) That the appellant was the leader of the gang.

(6) That there were multiple victims, one of whom was a seven-year-old child.

(7) That the actions were fully premeditated.

(8) The victims were tied up.

(9) The appellant's previous convictions, especially for firearms offences and violence.

15. We consider that the facts of the offence of aggravated burglary in this appeal, coupled with the appellant's previous convictions, make it more serious than either of the cases to which we were referred by Mr Sands. Those cases are also 20 years old and the sentencing range for offences of this nature have increased in the intervening period. The record of the appellant, the presence of a loaded gun, the gang nature of the attack and the multiple victims are of particular significance.
16. We return then to the sentence passed. A feature that must not be overlooked is that at the time he was sentenced the appellant was not long into a six-and-a-half year sentence for firearms offences. Had a determinative sentence been passed it would undoubtedly have been consecutive to that earlier sentence. When dealing with a life sentence it is appropriate to make an adjustment in the minimum term in such circumstances. At the time at which the appellant was sentenced at Lewes Crown Court he had between two and three years left to serve of his previous six-and-a-half year sentence. Therefore it seems to us that the minimum term imposed by Judge Niblett was the broad equivalent of somewhere between seven and eight years minimum, leaving out of account the sentence the appellant was already serving. That being so, the equivalent determinative sentence would have been between 14 and 16 years, leading to a starting point of somewhere between 21 and 24 years for a determinative sentence after a not guilty plea.
17. Whilst we would have regarded a 10 year minimum term as manifestly excessive in the absence of the recently imposed determinative sentence, taking that into account it cannot in our judgment be so described. The sentence was an appropriate one having regard to all the dreadful circumstances of this case. This appeal is dismissed.