England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		11 February 2010

THE LORD CHIEF JUSTICE: I shall ask Mr Justice Penry-Davey to give the judgment of the court.

MR JUSTICE PENRY-DAVEY:

1. On 29 June 2007, in the Crown Court at Snaresbrook, the appellant pleaded guilty to three counts of robbery, two counts of possession of a firearm and of an imitation at the time of committing a Schedule 1 offence, one count of attempted robbery and one count of possessing a prohibited weapon. On 25 October 2007, before the same court, he asked for four offences to be taken into consideration, namely three armed robberies, at a bank, a McDonalds restaurant and a Shell garage, in which sums of £25,000, £26,000 and £40,000 were stolen, and one offence of conspiracy to rob a Securicor guard outside a newsagent. He was sentenced on the three counts of robbery and one of attempted robbery to imprisonment for life with a minimum term of seven years (less 334 days spent in custody on remand) specified under section 269(2) of the Criminal Justice Act 2003. Concurrent determinate sentences of five years' imprisonment were imposed on two firearms counts, and two years' imprisonment also concurrent was imposed on the imitation firearm count. The total sentence was thus one of life imprisonment with a minimum term of seven years (less the days spent on remand). Two further counts were ordered to remain on the file on the usual terms. The appellant appeals against sentence with the leave of the single judge.
2. There was considerable confusion about the sentence that the judge had imposed, but after a long period of time it was finally resolved. The position is now clear, as we have set out.
3. There were three co-accused. Penny White (aged 27) was sentenced to ten years' imprisonment for robbery, and to two years' imprisonment concurrent for possession of an imitation firearm. She was also before the court for other unconnected matters. She successfully appealed against her sentence which was reduced to eight years' imprisonment. Robert Hutson (aged 27) pleaded guilty to attempted robbery and was convicted of possession of a firearm at the time of committing an offence and possessing a prohibited weapon. He was sentenced to ten years' imprisonment, with five years' imprisonment concurrent on the other two counts. His appeal against sentence was dismissed by the full court on 17 July 2008. Adam Lawrence (aged 37) pleaded guilty to attempted robbery, for which he was sentenced to twelve years' imprisonment, and to two firearms offences, for which he was sentenced to concurrent terms of five years' imprisonment, making a total of twelve years' imprisonment. He was also returned to custody to serve the remaining period of an earlier sentence.
4. These were a series of professionally planned commercial armed robberies. On the afternoon of 10 March 2006, a Securicor security guard making a cash delivery to Barclays Bank in South Woodford was attacked from behind by two men wearing hoods and boiler suits. He was struck on the helmet with a hammer. His helmet fell off. He fell to the ground, where he was struck on the head and on the hand. He lost his grip on the cash box that he was holding. The robbers got into a stolen Ford car bearing false registration plates and made off. Two men were seen a short time later near a stolen Vauxhall car, again bearing false plates, in a slip road just off the A406 past Ilford. Red smoke was billowing from the open cash box in the Vauxhall. One of the men, Macey, was captured. He subsequently pleaded guilty to the robbery on a separate indictment and was sentenced to eight years' imprisonment. The appellant's DNA was found on a bottle and a cigarette butt in the Vauxhall. In a victim impact statement the security guard said that he sustained swelling, bruising and back pain. He attended counselling and found returning to work difficult.
5. The second robbery was committed on the evening of 22 March 2006. Men wearing boiler suits and balaclavas entered a Dagenham branch of ASDA. They were carrying a sawn-off shotgun, a handgun and iron bars. They were able to enter the premises at the precise moment that the takings were being transferred from the tills to the cash office because the co-accused Penny White had entered the store some minutes earlier and used her mobile phone to inform them about the progress of the trolley collecting cash from the tills. Guns were pointed at staff. They were threatened. Over £60,000 was stolen. The robbers made off in a stolen Peugeot van, whilst Penny White followed in her own Mercedes. The Peugeot was found abandoned nearby. Again the appellant's DNA was found on the gear stick. The members of the staff affected said the incident had a long-lasting negative effect and an impact on their personal relationships.
6. The third robbery occurred on the afternoon of 23 June 2006 when a Royal Mail cash-in-transit security guard arrived at Woolworths in Chigwell. He collected pouches of cash from the store and put them into a secure cash box. As he returned to his van with the cash box, he felt the box being pulled from behind. He turned to see a man wearing a balaclava who said to him, "Give me the fucking box", and struck the guard on the wrist with a metal pipe. He raised the pipe as if to strike him again. In consequence the guard released the cash box. The robber got into the passenger seat of a stolen Rover, again with false registration plates, and made off with the box which contained £12,600. The vehicle was later recovered. A pair of gloves in the vehicle contained traces of the appellant's DNA.
7. The final matter was an attempted robbery. It also involved allegations of possession of firearms and a prohibited weapon. In November 2006 the police conducted a covert surveillance operation. The appellant and Hutson were seen observing cash-in-transit deliveries in London, Essex and Kent. They were wearing boiler suits and sunglasses and using stolen motor vehicles with false registration plates. On 16 November 2006 they were seen in Greenhithe with two stolen vehicles, preparing to rob a cash-in-transit delivery van which was making a delivery to a McDonalds restaurant. However, no opportunity presented itself to carry out the robbery. Later the same day they were seen in Chingford observing a cash-in-transit delivery at the Co-op. They followed the van. They were seen in Rainham later still the same day in the vicinity of further cash-in-transit deliveries. There was similar activity on 17 November. A text message between the appellant and Penny White on 18 November concerned a cash-in-transit delivery to a hotel. Cell site analysis showed that the appellant was in the vicinity of the hotel at the time. The delivery was expected at midday but did not take place. On 20 and 21 November 2006 the appellant was seen in the company of the co-defendant Lawrence.
8. Shortly before 4pm on 23 November 2006 Hutson parked a stolen Skoda car in the slip road opposite the National Westminster Bank in Colliers Row. Lawrence was in the front passenger seat and the appellant was in the back. They wore boiler suits. They watched a Securicor guard making collections and deliveries. As the guard made his sixth trip into the bank, the appellant and Lawrence entered the bank. They wore balaclavas. Lawrence held the door. The appellant had a handgun. He shouted at the guard to open the box. The cash box was in fact empty. The appellant shouted at the female cashiers to pass out money. He said that if they did not comply within ten seconds he would shoot the guard. He slid back the top of the gun to engage it ready for firing. The guard understandably believed that he was about to be shot. The cashier froze in terror and was unable to comply, whereupon both the appellant and Lawrence left the bank. The whole incident lasted about ten seconds. Armed police officers moved in when the two returned to the Skoda. The appellant was detained and arrested after a short chase, though he tried to escape. Lawrence and Hutson were arrested by the Skoda. A converted blank-firing pistol was recovered from the rear footwell of the vehicle. There was a round of live ammunition in the chamber and live ammunition in the magazine. The gun was capable of firing that ammunition. A can of petrol, which could have been used to torch the Skoda in the event the robbery had been successful was also recovered from the vehicle. The security guard said that he feared for his life and was left feeling extremely vulnerable.
9. The appellant was interviewed after his arrest. He made no comment.
10. He is 35 years old. He had appeared before courts on 26 previous occasions for 61 offences between 1991 and 2007. There were previous appearances for theft, various dishonesty and motor vehicle offences, largely dealt with by way of fines and a range of short custodial sentences. In 1996 he was sentenced to three years' imprisonment for robbery (a handbag snatch), and three years' imprisonment concurrent for wounding with intent, having stabbed the complainant in the chest following a confrontation in a fast-food restaurant. In 1999 he received consecutive sentences of three months' imprisonment for two offences of common assault and in 2005 concurrent sentences of two months' imprisonment for battery and assaulting a constable on two occasions.
11. The pre-sentence report identified the appellant's principal source of income over the years as from criminal activity. He had a history of drug misuse and heavy alcohol consumption, but now abstained from drugs and was a moderate social drinker. He posed a high risk of serious harm to the public.
12. Recent reports of his progress in custody are positive. He has achieved enhanced status. There are indications that he is taking the opportunity to improve himself, although the risk to the public is still assessed as high. The picture is not completely favourable as he has four adjudications against him in the course of his time in custody.
13. Mr Keene on behalf of the appellant takes issue both with the appropriateness of the sentence of imprisonment for life and the length of the minimum term imposed. Although he takes issue with the approach adopted by the judge to the issue of dangerousness within section 229 of the Criminal Justice Act 2003, he acknowledges on behalf of the appellant that had the judge referred to the provisions and approached the matter in the right way, he would inevitably have reached the same conclusion. He submits, however, that in imposing a sentence of imprisonment for life the judge was wrong in that this case does not come within the exceptional category where the culpability of the offender is particularly high or the offence itself particularly grave.
14. This court has considered the sort of circumstances which make the imposition of a sentence of life imprisonment, as distinct from imprisonment for public protection, appropriate. Mr Keene's submission is that this case, whilst justifying a sentence of imprisonment for public protection, did not justify a sentence of imprisonment for life.
15. In R v Kehoe [2009] 1 Cr App R(S) 9, this court indicated that life imprisonment, pursuant to section 225, should be reserved for those cases where the culpability of the offender is particularly high or the offence particularly grave. The reason for that is that the public will be properly protected against dangerousness by the indeterminate sentence of imprisonment for public protection: (see also R v Kiely [2009] EWCA Crim 756 and R v Wilkinson and Others [2009] EWCA Crim 1925.
16. Although the judge set out at length the basis on which he sentenced the appellant and his co-defendants, he did not specifically explain why he was imposing life imprisonment rather than imprisonment for public protection. We have considered the circumstances of these offences and have come to the conclusion that, serious though the offences were, this was not one of those exceptional cases where a sentence of imprisonment for life was justified, rather than one of imprisonment for public protection.
17. Accordingly, we are minded to substitute concurrent sentences of imprisonment for public protection for the sentences of imprisonment for life on each of counts 1, 2, 4 and 6 .
18. Mr Keene also takes issue with the length of the minimum term. He submits that the appropriate determinate sentence the judge had in mind as the basis for the minimum term to be served was 21 years which, after deducting one-third for the early pleas of guilty, was thus fourteen years and, halving that, the minimum period was set at seven years. That, he submits, was too long.
19. These were professionally planned commercial armed robberies. In R v Turner (1975) 61 Cr App R 67, this court suggested that the normal sentence for bank or post office armed robberies was 15 years' imprisonment if firearms were carried and no serious injury caused, increasing to 18 years if there was more than one such offence. More recently it has been suggested that the 18 year maximum no longer applies. In R v Jenkins [2008] EWCA Crim 1372 it was suggested that a maximum sentence of 25 years' imprisonment was appropriate for a series of armed robberies involving violence. We have been referred to R v Atkinson [2004] EWCA Crim 3223 which involved post office employees and their families being tied up overnight and held captive whilst time-delayed safes became accessible. The court imposed a sentence of 25 years' imprisonment following a trial. On appeal that was said to be the top of the range, and reduced to 22 years. It is submitted that the violence was less in this case than that in Atkinson, and that overall there was a smaller number of offences involved.. Thus it is submitted that the minimum period here should be based on a figure lower than that imposed in Atkinson..
20. The appellant in this case was involved in seven professionally planned armed robberies and one attempted robbery which only failed because of intervention by the police. They were all committed for high monetary gain. In our judgment the minimum period specified was entirely appropriate and not in any way excessive.
21. In the result the appeal is allowed. We substitute for the sentence of imprisonment for life imposed on the three robbery counts and the single attempted robbery count, concurrent sentences of imprisonment for public protection with a minimum term of seven years (less the 334 days spent in custody on remand awaiting trial). The sentences imposed on other counts remain unchanged. Accordingly, the appeal is allowed to the extent indicated.

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