England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM the Crown Court at Teeside
His Honour Judge BOWERS
T20097247 & T20097402

		Royal Courts of Justice Strand, London, WC2A 2LL
		30/04/2010

Mr Justice Foskett :

1. This is the judgment of the court and gives the reasons for the decision announced at the end of the oral hearing on 28 April 2010.
2. On 21 September 2009 at Teesside Crown Court the two appellants were each sentenced by His Honour Judge Bowers to imprisonment for public protection with a minimum period of 6 years before parole could be considered, the relevant periods on remand (87 days for Robinson and 165 days for Jordan) being directed to count towards the sentences.
3. Each appeals with the leave of the single judge, that leave having been restricted, however, to the minimum term.
4. At the hearing before us, Jordan renewed his application for leave to appeal against the sentence of imprisonment for public protection imposed upon him. Initially, Robinson did not do so, but as the hearing proceeded Miss Caroline Goodwin, who represented Robinson below and before us, indicated that she too wished to renew an application on his behalf, relying broadly upon the grounds that she had originally put before the single judge. We gave leave to pursue this issue on behalf of both appellants.
5. The indictment both appellants faced was as follows: Count 1, robbery; Count 2, possession of a firearm when committing a Schedule 1 offence; and Count 3, aggravated vehicle taking. Robinson pleaded guilty to all 3 counts, Jordan to Counts 1 and 2, Count 3 being left on the file on the usual terms. As will emerge, he was not the driver during the high-speed chase.
6. The offences arose out of a robbery of security guards who were delivering cash to a supermarket, the robbery being carried out with the assistance of a firearm, and a subsequent high-speed chase. These events took place on 6 April 2009. The circumstances were these.
7. Shortly before 8am on the day in question, a cash delivery was being made to a supermarket in Thornaby-on-Tees. Two security guards were delivering the money and one of them took two boxes each containing £2,240 in coins out of the van and was walking towards the supermarket accompanied by his colleague when the appellants, who were wearing black balaclavas, ran towards them. One of them pointed a Brocock .22 gas cartridge revolver directly at the security guard carrying the boxes and said words to the effect of "Open the fucking boxes and give us the keys". The gunman grabbed hold of this security guard and pressed the gun against his neck as he put the boxes down. The appellants grabbed a box each and ran to a car park.
8. It should be noted that when the gun was recovered subsequently it was found to have no ammunition in it and when examined it was found that it could not have been fired. That would not, of course, have been known to the security guards who, understandably, were substantially affected by the whole episode. Fortunately, no long-term damage was caused and each was back at work by the time of the sentencing hearing. It is a point upon which the appellants rely in relation to the issue of "dangerousness" to which we will be returning shortly.
9. Returning to the sequence of events, in the car park was a BMW motor car that had been stolen from near Manchester on 24 February and which had been fitted with false number plates. The appellants escaped initially in that car and then changed to a Honda Civic motor car that had also been stolen in January in the Manchester area and which had also been fitted with false number plates. It transpired that both the cars had been seen in the area of the robbery on previous occasions carrying out reconnaissance.
10. The Honda was next seen by traffic police officers in the Wetherby area in Yorkshire at about 8.50am. Robinson was driving and Jordan was in the front passenger seat. Jordan covered his face as the car passed the first police vehicle and the car altered speed to see if the police cars would follow it. The car was followed across a roundabout and back onto the motorway. A helicopter was also deployed to video what, as we have indicated, turned out to be a high-speed chase.
11. After about 20 miles on the motorway, the firearm was thrown out of the passenger side of the car. Shortly afterwards, the police vehicles activated their lights and sirens with a view to stopping the Honda but Robinson increased the speed of the car to about 140mph and a high speed chase ensued through the rush hour traffic. The Honda engaged in numerous changes between lanes and had numerous near misses with other vehicles before it struck a BMW, causing minor damage to both vehicles. Despite that Robinson did not stop, but drove on and entered the orbital motorway round Manchester at about 120mph and again swerved between the lanes on a number of occasions before he eventually arrived at the Trafford centre in Manchester and parked the car in the car park there.
12. Both appellants then discarded items of clothing in bins, relatively clear CCTV images of both the defendants being recorded. Jordan was arrested in the Trafford Centre later that morning and the stolen money was recovered from the boot of the Honda. When interviewed, he gave a prepared statement in which he said he had gone to the Trafford centre to shop and then he declined to comment. Jordan's clothing was seized. His DNA was found to be on the belt buckle of the passenger seat belt on the BMW motorcar and fibres matching his clothing were also found on the front seat of the Honda. There was some limited DNA evidence linking him to the gun and the gearsticks of each car.
13. Robinson was arrested by the immigration authorities at Manchester Airport on 25 June. When interviewed, he essentially declined to comment. However, gloves which had been thrown into a bin at the Trafford Centre were found to contain skin flakes which produced DNA matching his DNA. There was also again some limited DNA material linking him to the BMW, Honda and the gun. As we have indicated, there were good quality images taken from the Trafford Centre of him walking away from the Centre and also being in the centre with Jordan.
14. Both were produced before the Recorder of Middlesbrough on the 23 July 2009, when Jordan entered guilty pleas to Counts 1 and 2 and a not guilty plea to Count 3. No pleas were taken in respect of Robinson who had been arrested later and certain papers had not by then been served on his legal advisers. He appeared before Mr Recorder Freedman on the 7th September and on that occasion pleaded guilty to all three counts. When the matter came before Judge Bowers the prosecution had reviewed Count 3 as against Jordan and decided that in the light of the plea of guilty of Robinson there seemed little point in having a trial and invited the Judge to leave that matter on the file on the usual terms as against Jordan. This is a matter to which we will have to return in the light of Mr Hurlock's submissions before us.
15. The prosecution accepted before the Judge that each had pleaded guilty at the earliest available opportunity.
16. There was a basis of plea for each appellant to which we will refer shortly.
17. Robinson was born on 9 December 1976 and was thus 32 at the date of the offence and subsequent sentencing. Jordan was born on 10 September 1977 and was thus 31 at the date of the offence and just 32 at the date of sentence.
18. Each had previous convictions. Robinson had a number of matters of dishonesty recorded against him which have led to various non-custodial and relatively short custodial sentences. He was convicted of dangerous driving in February 1997 at Manchester Crown Court and sentenced to 21 months in a Young Offenders Institution and later that year in June at Burnley Crown Court he was sentenced to 3 years' imprisonment for an offence of robbery. Apart for some relatively minor matters in 2007 he had kept out of trouble since then. Jordan had some previous convictions, including matters of dishonesty, going back to 1996. The most serious matter was a conviction in 1997 for robbery (not, we understand, committed with Robinson) for which he too received a sentence of 3 years in a Young Offenders Institution. He was imprisoned for 9 months in December 1999 for two offences of burglary which appear to have been committed whilst on licence. For breach of the licence condition he was directed to serve 222 days consecutive to the sentences otherwise imposed. There were one or two matters subsequently including two offences of driving with excess alcohol, the latter occasion being on 26 December 2008 when he also committed an offence of common assault. There was very limited information before the Judge about the circumstances of the earlier convictions for robbery.
19. Robinson's basis of plea was that he was recruited as a driver, was not involved in the specific planning of the robbery (although by his plea accepted his actual involvement) and asserted that was not aware that a firearm was going to be used. Jordan's basis of plea was that immediately prior to the robbery he became aware of the intended use of the firearm and participated in the robbery with this knowledge. He, accepted, therefore joint possession of the firearm during the course of the robbery. He was the front seat passenger in the vehicle. Mr Hurlock has made the point strongly that at no stage did Jordan accept that he had encouraged any aspect of the exceedingly dangerous driving that Robinson engaged in when endeavouring to secure their escape: indeed there was some evidence that at one stage he encouraged him to stop. It is, of course, right to say that no Newton hearing took place, whether at the instance of the prosecution, the defence or the Judge.
20. The prosecution's position was that it had no direct evidence of the respective states of knowledge on the part of each appellant, but its case was that certainly Robinson was the driver and that the evidence seemed to show that Jordan was in possession of the gun. Certainly the gun was thrown from the passenger side of the car as it was going across the M62.
21. It was not, of course, in issue before the Judge that substantial prison sentences would be imposed. The question was the basis and the length.
22. The Judge indicated during the Prosecution opening that he would have to consider the issue of "dangerousness" for the purposes of the Criminal Justice Act 2003. Although Miss Goodwin has suggested that Counsel were not given the opportunity by the Judge to address this issue, we cannot accept that anyone could have been taken by surprise by the emergence of the issue. As the Single Judge said when refusing leave on this point, there is "no basis for [any] complaint that … counsel [were] not aware that the judge was considering the issue of dangerousness."
23. What is more important, however, is the process of reasoning of the Judge that led him to the conclusion that he did on this issue and the material he had upon which to base his decision. Regrettably, the sentencing remarks were very brief for a serious case of this kind and that makes the task of this court more difficult when endeavouring to review an issue such as "dangerousness". Indeed we would add that it makes it difficult for the Parole Board in due course to consider the implications of the sentencing judge's view if reasonably full reasons are not given.
24. What, of course, was before the Judge in relation to that issue were, in the first instance, the circumstances of the offence or offences. Addressing both appellants he said this:

"What I am most concerned about here is that you were under pressure, in difficulty, and you were then prepared to embark upon one of the most dangerous enterprises a criminal can involve himself in, and, not only that, having done so you were prepared to escape at all costs for the life and limbs of anybody else on the motorway, and then you say you are not dangerous.

It seems to me that both of you have previous convictions for robbery, although in different circumstances, and both of you were prepared to embark upon this serious criminal venture without having any clue or regard to the risks to other people. You must qualify as dangerous. The sentence you get therefore is an indefinite sentence."

25. He also had Pre-Sentence Reports dated 18 September 2009 for each which gave some support for this finding in respect of each although, in our judgment, the support for the conclusion in relation to Jordan was slender. For Robinson the report stated the view that he posed a "significant risk of serious harm to the public" which was evidenced "by his involvement in this offence". For Jordan the report was more equivocal although it alluded to the "emotional harm and potential risk to others that he posed". It noted that the reason behind the offence was his drug debt which remained outstanding and there was, therefore, a high risk of him re-offending. It made no specific reference to any (or any significant) risk of serious harm to the public.
26. There was, as we have said, not a great deal of evidence about the previous robbery convictions of each appellant (committed some years previously), though since each merited custodial sentences of 3 years for what would then have been young men, we can infer that they were relatively serious matters.
27. We see nothing wrong in principle in the Judge taking into account the quite appallingly reckless driving of Robinson in evaluating the issue of "dangerousness". The facts speak for themselves in that regard. Taken against the background of a serious planned robbery, albeit using a firearm that could not inflict direct injury, a previous conviction for robbery and the assessment of the writer of the Pre-Sentence Report to which we have referred, we consider that the Judge was justified in finding that Robinson was "dangerous" within the meaning of the 2003 Act. We will return to whether a sentence of imprisonment for public protection was appropriate when we have dealt with Jordan's appeal on this ground.
28. Mr Hurlock has submitted that the appalling piece of driving should not have been taken into account, or at least in any significant way, by the Judge in relation to this issue in respect of Jordan. He was not driving, he submits, and there is no evidence that he was positively encouraging this extremely dangerous activity. He should not have been treated, he submits, as if he had merely because he was in the car when it was being driven as it was. He tells us that Jordan always maintained that it was not his wish (notwithstanding a desire to escape) that the car should be driven in this fashion and that he has not been convicted of any offence in this regard.
29. Our initial reaction to this submission was that since this was plainly a joint enterprise in which each played a full, active and, we would add, a pre-planned part, each should inevitably to be regarded as responsible for what the other did in pursuance of it. There is ordinarily little room for nice distinctions about who did what in this kind of case and indeed we adhere to that general philosophy. However, in the light of the plea of not guilty to the aggravated vehicle taking, a plea accepted by the prosecution, it would not be right to treat his presence in the car whilst it was driven dangerously as something that went to the issue of "dangerousness" in his case. Certainly, in our view, it should not have been used to tip him into that category if the rest of the evidence did not add up to such a finding. Whilst the offence of robbery was itself very serious and, despite the use of an ineffective weapon, could represent the beginnings of a case of "dangerousness", we do not think that such a conclusion was justified in Jordan's case.
30. As already indicated, we were of the view that a finding of "dangerousness" was not justified in his case and, accordingly, the issue is simply the length of the determinate term. We will return to that shortly.
31. So far as Robinson is concerned, having determined that a finding of "dangerousness" was justified the question is whether it led inexorably to the imposition of a sentence of imprisonment for public protection. Unfortunately, the Judge did not, as he should have done in this case, consider expressly, having reached that conclusion, whether an extended sentence would have been the appropriate disposal rather than imprisonment for public protection. That would, of course, have involved making an assessment of when in the future the risks to the public may cease. Since he made no reference to this matter, we do not have the benefit of his views and, accordingly, we have to approach the matter afresh.
32. Despite the very serious nature both of the robbery and of the driving there are some positive features in Robinson's case. He is married and has a young daughter, his wife remaining supportive. There has been in the past a significant period when he has remained out of trouble. Any sentence has to be substantial and he will have plenty of time to think about the way to go about life on his release. Against that background, in our judgment, this is an appropriate case in which an extended sentence could (and should) be imposed and, as we indicated at the close of the oral argument, that is what we propose to substitute in his case.
33. What is the appropriate length of sentence? In his very brief sentencing remarks the Judge said that "quite obviously [the robbery] had been planned weeks in advance, cars had been obtained and were set up for the getaway." Both were masked, he said, and both took part in the robbery where a firearm was brandished. That indeed sums up in a nutshell what happened.
34. The Judge gave no reasons when passing sentence for arriving at the sentence of 12 years that he must have arrived at for the purpose of deciding on the minimum term.
35. At a subsequent hearing on 21 September sought by Counsel then acting for Jordan the Judge confirmed that he had taken 15 years as the starting-point and discounted it by 3 years (or 20%) for the pleas of guilty. He indicated that the pleas would not attract the full one-third discount because the forensic evidence was so strong that they could not have failed to be convicted. The resultant 12 year sentence was halved, in accordance with standard practice, to arrive at the minimum term. Whilst we accept that this did indeed represent the Judge's thinking at the time he passed sentence, we do, with respect, think that this should have been spelled out there and then and not emerge in this somewhat informal and unusual way, and when only one Counsel was present. We think the Judge was surprised that only one Counsel was present, but on any view the procedure was unusual.
36. In her helpful Skeleton Argument Miss Goodwin has referred us to a number of cases in support of her contention that 15 years was too high a starting-point at that it should have been between 12-14 years. Mr Hurlock supported this to a degree, but did not argue strongly that 15 years was too high a starting point. In our judgment, the starting point of 15 years was entirely appropriate.
37. On that basis the only issue that arises is the discount for the pleas of guilty, each Counsel arguing that the full credit of one-third should have been given. We would have had some reservations about whether each truly pleaded guilty (or indeed intimated an intention to plead guilty) at the earliest practical opportunity, but that issue is in any event somewhat overtaken by the approach the Judge took to the strength of the case each had to meet. We have referred to his observations in paragraph 35 above.
38. The Sentencing Guidelines Council 'Definitive Guideline' entitled REDUCTION IN SENTENCE FOR A GUILTY PLEA states in relation to the situation where the prosecution case is overwhelming the following:

Where the prosecution case is overwhelming, it may not be appropriate to give the full reduction that would otherwise be given. Whilst there is a presumption in favour of the full reduction being given where a plea has been indicated at the first reasonable opportunity, the fact that the prosecution case is overwhelming without relying on admissions from the defendant may be a reason justifying departure from the guideline.

39. Where a court is satisfied that a lower reduction should be given for this reason, a recommended reduction of 20% is likely to be appropriate where the guilty plea was indicated at the first reasonable opportunity.
40. It appears that this is what the Judge had in mind. As we have said, it would, we respectfully think, have been another matter better spelled out at the original sentencing hearing rather than in the way that it occurred and in a way that gave Counsel the opportunity to make submissions on the issue. That having been said, we think that it is unlikely that anything Counsel might have said would have made any difference because the points about the strength of the case are clear. Neither Counsel was able to advance convincing submissions before us that, in our judgment, would have made any difference to the outcome.
41. Whilst, as we have already indicated, the Judge would have been better advised to structure his initial sentencing remarks in a fuller and clearer fashion, thus avoiding the need for the rather informal and unusual process by which his reasoning has emerged, his approach, as it has emerged, to the question of how long any determinate sentence should have been cannot, in our judgment, be criticized.
42. For those reasons, we allowed the appeals in each case and substituted for the sentence of imprisonment for public protection in each case a sentence of 12 years imprisonment in the case of Jordan and an extended sentence imprisonment of 16 years in Robinson's case comprising a custodial term of 12 years and an extended licence period of 4 years, the relevant periods on remand (87 days for Robinson and 165 days for Jordan) to count towards the sentences thus substituted.
43. To that extent and on that basis the appeals were allowed.