England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Friday, 29th January 2010

1. LORD JUSTICE PITCHFORD: This is an appeal against sentence with the leave of the single judge.
2. On 29th April 2009 at the Preston Crown Court the appellant was convicted of robbery (count 1), wounding with intent to resist arrest (count 3) and possessing a firearm at the time of committing an offence (count 4). He was sentenced by the trial judge, the Recorder of Preston (His Honour Judge Russell QC) on 15th May 2009, on each count to imprisonment for life for public protection. The minimum term specified under section 82A of the Powers of Criminal Courts (Sentencing) 2000 was 10 years and 232 days.
3. Relevant to the issues which arise in this appeal is the fact that the jury acquitted the appellant upon count 2 which alleged attempted murder. Others were involved in the robbery. Rudolf Mancini was convicted after a trial and sentenced to 8 years' imprisonment. Peter Plaskowski was also convicted after his trial and was sentenced to 3 years' imprisonment. David Tyrrell pleaded guilty to robbery and possessing a firearm when committing an offence. He was convicted after his trial of wounding with intent. He was sentenced to imprisonment for public protection with a minimum term specified of 6 years and 49 days.
4. The facts of the offences of which the appellant was convicted were these. At about 8 'o clock on the morning of New Year's Eve 2007 the appellant and Tyrrell, who were masked, entered the Hospital Inn public house at Bamber Bridge, near Preston. They were in possession of a sawn-off shotgun, at least one barrel of which was loaded, and a loaded handgun. The appellant was in possession of the shotgun and Tyrrell of the handgun. On entry they came across two female cleaners at the public house. They issued threats to those women in attempting to gain access to the private quarters within the building. This appellant forced entry into the private quarters.
5. Inside was the manager of the business, George Gornall, and his partner. Following the issue of threats Mr Gornall was struck over the head by the appellant with the shotgun, wounding his head. He was forced at gun point to open the safe. In all the robbers recovered from the safe and other places within the accommodation some £12,500 in cash. Before leaving they used cable ties, which they had brought to the scene of the robbery, to tie up all four victims. Before he left the appellant kicked Mr Gornall a number of times causing him facial injuries and bruising and grazing to the body.
6. There were during the course of this incident a number of threats to kill those against whom the robbery was committed. The evidence was that the appellant had said: "I do this for a fucking living." It was apparent from the evidence that Tyrrell played a subsidiary role.
7. The robbers were unaware that while forced entry was being made to the private quarters, Mr Gornall had been able to phone the police. Accordingly when the appellant emerged into the car park of the public house he was confronted by PC Katie Johnson, a dog handler, together with her dog. She was standing some 10 to 15 yards away from the appellant who told her to get down on the ground. With astonishing bravery she declined and told him to drop his weapon. The appellant fired a single round from the shotgun, of which some 2 per cent of the pellets struck her left thigh. She was treated with antibiotics but did not require surgery. She retired to a place of safety in the car park, and the robbers ran down a nearby railway line into a small industrial estate.
8. The appellant, when he was arrested, shortly afterwards, was said to have observed: "I've just shot one of your women". Tyrrell was arrested some time later and eventually in interview admitted the robbery and joint possession of the firearms.
9. The investigation which followed this offence revealed that it had involved a significant amount of planning, the source of which had been a disaffected chef employed at the Inn, Mr Plaskowski. It was he who had involved Mancini, who knew both the appellant and Tyrrell.
10. In passing sentence the Recorder made the following amongst other observations. He said that this was a violent crime, committed by the appellant with gratuitous violence over and above that which was necessary to complete the intended theft, the consequence of which, amply confirmed by the victim impact statements we have seen, were terrifying for the victims. The applicant had shot in the direction of the officer, knowing that she would be unarmed. She had been in uniform and the appellant could have been in no doubt that she was a police officer. He had been acquitted of attempted murder but, in the view of the learned judge, it would not have bothered the appellant greatly if she had been disabled. There was no doubt that the applicant was the principal offender in the commission of the offence. It was clear to the judge that his actions were those of a dangerous criminal and constituted offences of exceptional seriousness. His preparedness to discharge a firearm in the circumstances we have described demonstrated to the Recorder a significant risk that the appellant posed a danger of serious harm to the public in the future. The Recorder went on that the fact that the principal victim was a police officer placed the offence in a special category, certainly in the minds of the public. He took the view that while there was little to distinguish the consequences of life imprisonment from imprisonment for public protection, there was a public revulsion for offences such as these, which would entitle the court to take the view that life imprisonment was appropriate. The Recorder referred to the well-known case of R v Turner 61 Cr App R 67, from which he came to the following conclusions about the likely sentences were he to consider determinate sentence. Had the offences been committed separately, there would have been sentences, he thought, of 16 years for the robbery, 5 years for the firearm and 16 years for the wounding. He recognised however, that it was not appropriate, when calculating the minimum term, simply to aggregate the sentences as though they were to be passed consecutively. The Recorder took the view that the overall determinative sentence would have been in the order of 24 years. He halved that sentence in the conventional way and reduced it by the days spent on remand in custody of 498 days. Thus he arrived at his total of 10 years and 232 days.
11. Mr Denney QC has addressed to us three grounds of appeal for the focus of which we are grateful. First, this was not an offence which was so grave that only a sentence of life imprisonment was appropriate. Second, and in any event this was not a case in which an indeterminate sentence should have been passed. Third, the minimum term was too long, since it indicates that the learned judge should have, but did not discount it for the fact that an indeterminate sentence was itself designed to cater for the dangerousness of the accused. We shall first deal with the ground which challenges the appropriateness of an indeterminate sentence. We are informed that the Recorder did not have reports before him. We are also informed that there was no request made on behalf of this appellant to obtain them. The Recorder was, in our view, entitled to proceed upon the information with which he was provided and which he had heard during the course of the trial.
12. That information included the appellant's previous convictions. He was born in 1961 and between the ages of 15 and 30, he appeared in Juvenile Courts, Magistrates' Court and the Crown Court, for several offences of burglary and theft, and in particular, on 11th May 1990 for two offences involving a firearm, a sawn-off shotgun. He was convicted of possessing that weapon as a prohibited weapon and of being a prohibited person possessing a firearm. He was also convicted as a prohibited person of possessing ammunition. The sentence imposed at the Manchester City Crown Court was one of 4 years' imprisonment, indicating to us the seriousness with which that court viewed the offending. The appellant gave evidence which we are informed is likely to have been accepted at trial that that was an offence of minding a weapon.
13. There were, in our judgment, three particular factors which justified the conclusion of the Recorder that an indeterminate sentence must be passed. First, the gravity of the facts of the case and more particularly in the case of this appellant, his use of gratuitous violence towards one of the victims and the discharge of a loaded firearm in the general direction of another. Second, the appellant had demonstrated in the past a willingness to possess and therefore to have an involvement with prohibited firearms. He had in the past been a burglar. Thirdly and worryingly, at the age of 47 he had resorted to offending of a type which he had committed as a younger man. This time, however, there was a very significant escalation in that offending, in that it revealed a preparedness to use a shotgun to cause injury if confronted in the course of an offence such as burglary or robbery. In our judgment those facts demonstrated plainly that this man posed a significant risk of serious harm to the public, the duration of which it was not possible to estimate.
14. We turn to the second question, which is whether or not a sentence of life imprisonment was appropriate in the circumstances. Since these grounds and counsel's advice were prepared, Lord Judge CJ has given assistance to judges considering sentence for exceptionally serious offences, in particular sentences of life imprisonment under section 225 of the Criminal Justice Act 2003. In the appeal of R v Wilkinson & Ors [2009] EWCA Crim 1925, at paragraphs 17 to 19, of the judgment of the court the Lord Chief Justice said this:

"Once passed, at least two express differences between the sentences are identified in the legislation. First, in relation to a discretionary life sentence, but not an IPP, the court has jurisdiction to make a whole life order directing that the early release provisions shall not apply to the offender, and, second, although the offender will not be released from a discretionary life sentence or IPP unless the Parole Board considers it safe for him to be released, in the case of an IPP, but not a discretionary life sentence, the Parole Board may give a further direction that supervision under licence shall come to an end 10 years after release. That said, the Parole Board would not dispense with the post release licence conditions unless satisfied that they were no longer necessary. Neither of these differences is trivial, but by their very nature they tend to suggest that assuming that both are available, the crucial difference between a discretionary sentence of life imprisonment and IPP arising at the time of sentence should reflect the seriousness of the instant offence as assessed in the overall statutory context. This is consistent with the regime which applied to a discretionary life sentence before the implementation of the 2003 Act and is confirmed by the legislative provisions which provide two, not one, indeterminate sentences."

At paragraph 18 the Lord Chief Justice considered some of the authorities. At paragraph 19 he continued:

"These decisions, like virtually every sentencing decision, were fact specific. Nevertheless they give an indication of the approach of the court to legislative provisions which provide two forms of indeterminate sentence to deal with the dangerous offender. In our judgment it is clear that as a matter of principle the discretionary life sentence under section 225 should continue to be reserved for offences of the utmost gravity. Without being prescriptive, we suggest that the sentence should come into contemplation when the judgment of the court is that the seriousness is such that the life sentence would have what Lord Bingham observed in Lichniak [2003] 1 AC 903, would be a "denunciatory" value, reflective of public abhorrence of the offence, and where, because of its seriousness, the notional determinate sentence would be very long, measured in very many years."

15. Each member of the court has given close consideration to the question whether the facts of the present offence were so grave as to fall into that category of cases in which a sentence of life imprisonment was appropriate. Notwithstanding the justified words of the Recorder, to the effect that the public abhorred offences such as this, of importance to the consideration which we have had to make, is the fact that the jury found the appellant not guilty of attempted murder. While the offences of which he stood convicted remained exceptionally serious, they did not, in our view, fall into the top bracket requiring a life sentence. We shall therefore quash the sentence of life imprisonment and, as we have found, there being no satisfactory argument that the finding of dangerousness should not have been made, we shall substitute a sentence of imprisonment for public protection.
16. We then turn to the third and last of counsel's submissions which is that the Recorder fell into error in assessing the minimum term. We agree with counsel that reaching the minimum term is not a purely mathematical or scientific operation. The judge has to make an assessment of the determinate term which would have been appropriate in the circumstances, and we agree with the Recorder that the starting point would have been in the order of 24 to 25 years. Taking into account the fact that an indeterminate sentence will deal with the issue of whether the appellant is in future safe for release, we entertain no doubt that the minimum term reached by the Recorder was an appropriate one and it will remain undisturbed.