England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM ON APPEAL FROM THE CROWN COURT AT MANCHESTER
HIS HONOUR JUDGE GOLDSTONE QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/08/2011

Lord Justice Stanley Burnton :

1. On 5 March 2010 in the Crown Court at Manchester, William Moore pleaded guilty to 2 counts of handling stolen goods. On 5 July 2010 he pleaded guilty to conspiracy to commit robbery. On 19 July 2010 he was convicted of having a firearm with intent to commit robbery.
2. On 2^nd September 2010 in the Crown Court at Manchester, before His Honour Judge Goldstone QC, Moore was sentenced to imprisonment for public protection, with a minimum term of 7 years 9 months, on the counts of conspiracy to commit robbery and having a firearm with intent to commit robbery, those sentence to be concurrent, and to 18 months imprisonment on each count of handling stolen goods, to run concurrently with each other and with the sentences of IPP.
3. There were co-defendants. For conspiracy to rob, to which he had pleaded guilty, Richard Walsh received a sentence of imprisonment for public protection with a minimum term of 10 years 6 months; for possession of a firearm with intent, of which he had been convicted, the same sentence, concurrent; for two offences of handling stolen goods, to 18 months' imprisonment concurrent; and for an offence of being concerned in supply of Class A drugs, to which he had pleaded guilty, to 2 years imprisonment concurrent.
4. Jonathan Walsh pleaded guilty to conspiracy to rob and having a firearm with intent and was sentenced to an extended sentence of 19 years, comprising a custodial term of 14 years and an extension period of 5 years. For offences of handling stolen goods and dangerous driving he was sentenced to 18 months imprisonment on each count concurrent.
5. Gavin Noakes was sentenced for the robbery of which he was convicted to imprisonment for public protection with a minimum term of 8 years 6 months less time served, for a further conspiracy to rob to which he pleaded guilty to imprisonment for public protection with the same minimum term; for possession of a firearm of which he was convicted, to imprisonment for public protection with the same minimum term, and for dangerous driving to 18 months concurrent and he was disqualified for 2 years. All his sentences were to run concurrently.
6. On 28 July 2011 we heard Moore's renewed application for leave to appeal against his sentence. We granted leave, but dismissed the appeal. We said that we would give our reasons subsequently, and we now do so.
7. The facts of the conspiracy of which Moore was guilty were as follows. In the weeks leading up to 25 September 2009 a plan was hatched to rob a Group 4 security van which was due to deliver cash to an Abbey National ATM machine in Haslingden. The plan was the idea of Walsh who recruited Noakes and Moore as getaway drivers. Two days before the robbery was due to take place, Walsh recruited his brother, Jonathan, to organise the theft of two vehicles which would be needed to take part in the convoy and in the initial getaway. False number plates were to be fitted and petrol was purchased in order to set fire to the vehicles afterwards. Balaclavas and waterproof clothing were to be worn by the robbers during the attack. Weapons were also to be used, including a loaded firearm with a sound moderator. The plan was thwarted by the police, who had had the offenders under observation. Moore was the driver of the getaway car. Walsh and Moore disputed the firearms offences on the basis that the gun belonged to Noakes, and they were ignorant of it. Noakes gave evidence to that effect.
8. The robbery involved a high degree of planning with the potential for the theft of a large amount of cash. The counts of handling stolen goods related to the two stolen getaway cars, one to be used at the scene of the robbery, and the other to be parked some distance away to enable the offenders to abandon the first car and to escape in a car other than that seen at the scene of the robbery.
9. Moore had previous convictions for robbery, including robbery with a firearm. It is convenient to set out what the probation officer said in his pre-sentence report:

3.1 Unfortunately, Mr Moore is no stranger to the Courts. He committed his first offence at the age of 12 years. The majority of Mr Moore's previous convictions are theft-related offences or driving related. It would appear that Mr Moore committed these offences whilst spending non-constructive time with his peer group. In March 1999, Mr Moore received a six-year custodial sentence for Robbery with an Imitation Firearm. The robbery involved the use of an unloaded shotgun, machete and various other weapons. Victims were the staff and customers in the shop. Such a sentence did not deter him from re-offending upon release. In 2001, he committed an Attempted Robbery and a Robbery. Probation records at that time stress that Mr Moore had recently been made unemployed and had found out his partner was pregnant. He says he was approached by an old school friend to be involved in a robbery. On the day in question, Mr Moore describes being a passenger in a car with his three co-defendants. He says they were driving around looking for commercial premises to target. They chose to target a bank. Mr Moore tells me he stood on guard in the doorway of the bank to ensure the security shutters did not shut. Two of his co-defendants used a monkey wrench and a sledgehammer to smash the security screen. The attempt was unsuccessful. Two days after the initial attempted robbery, Mr Moore tells me he received a further call to commit a robbery. This time the
offenders targeted a post office. He tells me they spotted a cash delivery van outside the post office. Mr Moore and two of his co-defendants entered the premises wearing masks and carrying a wrench. Previous probation records indicate Mr Moore and others robbed the security guard whilst threatening him with violence. My understanding from these records is that £20,000
of cash was taken and split four ways. The gang had been under surveillance by the police for some months and were arrested days after the offence. Mr Moore's progress in custody during this sentence had been marred by his escape from open prison in August 2005. Mr Moore walked out of HMP Kirkham after his request for temporary release had been withdrawn. He
says he was annoyed about this as he felt he had been making good progress and that due to this a college course was in jeopardy. During the time he was at large, he committed further offences. Records state that he spent three weeks in a relative's caravan where mobile phone conversations took place with two other escapee acquaintances. Mr Moore picked up the other
young males at North Lakes hotel using his girlfriend's car. Two passengers were dropped off in a car park and a car was entered using keys stolen from changing rooms of the hotel gym (Taking Conveyance with Authority 12.08.2005). Mr Moore then drove his co-defendant around the area to a number of shops where a stolen bankcard was used to make various purchases (Obtaining Property by Deception x 6 12.08.2005). Mr Moore received a consecutive nine months for these offences.

3.2 Such a pattern of offending makes grim reading. It states that Mr Moore will readily offend when the opportunity arises, seemingly unfettered by the disposals imposed upon him. In addition, the current offences appear to have occurred in the absence of any triggers observed by his Probation Officer at the time. I have spoken with Ms Simi Badachha who stated that his life prior to this offence was stable, including accommodation, a good relationship with his partner and stable employment.

10. The judge summarised the appellant's antecedents as follows:

… in 1999 when you were only 17, you were involved in the robbery which involved the storming of a jewellers shop by a man armed with a sawn off shotgun. Other weaponry involved either a machete or a butcher's knife and a hammer. You were the youngest of five to be involved in that offence. You have graduated, and you were the driver of the vehicle on that occasion. Contrary to what was at one stage maintained on your behalf, you were sentenced on that occasion on the basis that you knew about the firearm, albeit that you were the getaway driver. I have already indicated that I do not propose in any way to add to your sentence, for the fact that you sought to deny that fact in the defence statement, and thus ensure that such evidence was not relied upon by the Crown at your trial, but in 2003 you again targeted banks and the Post Office, in order to commit one armed robbery and to attempt to commit another whilst you were masked. The total sentence imposed upon you on that occasion was one of eight years and four months, and these offences were committed whilst you were on licence.

11. Under the heading in the pre-sentence report, "Assessment of the Risk of Serious Harm", the probation officer said this:

The seriousness of Mr Moore's offending has increased dramatically since 1999. He committed a robbery with a shotgun, although I concede that it was unloaded, the victims would not have known this and I have no hesitation to infer that they would have suffered trauma in the long-
term. Likewise, his Robbery offence in 2003, involving the use of masks and a hammer would again result in trauma on behalf of the victims.

The current matter needs to be understood in terms of facts. Intent and planning are central factors. Technically, no 'serious' harm occurred regarding the current matter by Mr Moore. This is only because of the effective intervention of the Police. The concern is the potential for harm, especially by the inclusion of a gun, with a silencer and cartridges, the probability of serious harm would be likely if the gang were allowed to commit this offence. Mr Moore, an active conspirator would have been involved and hence is fully culpable.

Mr Moore's case is of course exacerbated by his tendency to commit very serious offences when under supervision. The [inherent] concern with Mr Moore's risk of further serious offending is that if he were to encounter yet another unexpected life dilemma. The current offence, it is claimed, was triggered by a £800 debt; the previous Robbery and Attempted Robbery was triggered by his redundancy. Such events are common yet hard to predict. He has dealt with these circumstances in a criminal, established way, hence committing robberies for money. The main, long-term triggers to his offending will always be association with other criminal peers, coupled with unforeseen financial problems. Underlying this behaviour however is internal triggers, including his problem solving, especially his ability to consequentially and alternatively think in a manner that does not involve serious crime. When Mr Moore re-offends, he does regardless of being on licence. Triggers to such were not observed while on Licence as noted by his Officer. Therefore, he could re-offend again, in the absence of observable triggers. When he re-offends, he commits robberies and based on this, if he were to re-offend again, the likelihood would be that he would commit another robbery, this could include weapons.

As noted before, his previous robberies have led to serious harm through trauma and therefore there is a realistic and plausible inference to make that Mr Moore poses a risk of serious harm to the general public through his continued re-offending. I have to apply the aforementioned definition of Dangerousness, and therefore based on these considerations, he is assessed as Dangerous under the current provisions.

12. The report's conclusions included the following

Mr Moore problem solves through crime. His recent offending have been all pre-planned and well organised, especially with the use of masks, weapons etc. His general offending seems to be underpinned by deficits in his problem solving and reasoning. He typically acts without considering the impact of his offences on the victims and the consequences of his behaviour. He seems unable to devise and implement goals in his life that will serve as a barrier to further offences. Furthermore, this indicates a deficit in his ability to solve problems, failing to identify problems, the ability to generate alternative course of action and consideration of the consequences to such actions especially for his victims, but also his girlfriend, two young children and his family. His ability to consider the needs of others needs development. In interview for this report, he could consider the perspectives of others and generate alternative behaviours to the problems he faces. However, this is in the controlled environment of prison, a place he has become accustomed to, especially with the regime which means he does not have to make his own decisions, to this extent, he could be considered institutionalised. When in the community, when faced with "problems most people can address and respond appropriately with, he will utilise crime as a means to problem solve.

Mr Moore stands before the Court today awaiting sentence for a series of interlinked and very serious matters. Unfortunately, these matters represent a mere continuation of his offending behaviour, which are organised plots to commit a robbery. The inherited difficulties with managing this case are Mr Moore's repeated abuse of the trust placed upon him. In addition to absconding from a Category D prison, he went on to commit further offences at this time. The current offence was committed while on licence in the absence of any triggers. Documents from 2005 indicate that Mr Moore's conduct in prison was impeccable. While on Licence for his current offence, his Probation Officer stated that his response had been good. Therefore, I imagine that Mr Moore will respond well in prison, and eventually be released. During his next period on Licence, again he will probably initially respond well. My concern will be when his life throws up some challenges. Will his experience from prison and the rehabilitative goals of such prevent him from re-offending? The case history of Mr Moore says no. Unfortunately, it is impossible to predict this, however I base my assessments on previous behaviour, especially when there is a clear trend, which in his case is evident.

13. The principal submission made by Mr Rhind on behalf of the appellant was that the judge could not reasonably have made his finding of dangerousness. He pointed out that the appellant had not himself used violence in the offences, albeit serious offences, which he had committed. In the instant case, his role had been that of getaway driver, and he would not have used, and would not have had to use, violence himself. Mr Rhind pointed to cases in which parties to armed robberies, who had committed repeated such offences, had been sentenced to determinate sentences of imprisonment: Atkinson [2004] EWCA Crim 3223 [2005] 2 Cr App R (S) 34 and Jenkins [2008] EWCA Crim 1372 [2009] 1 Cr App R (S) 20. He submitted that a finding of dangerousness requires a finding that the offender poses a substantial risk of inflicting serious injury himself; the appellant had never personally inflicted violence and there was no basis of a finding that there was a risk of his doing so.
14. We do not accept this submission. The relevant statutory condition is that "the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by [the offender] of further specified offences". An offender who is prepared to join in the commission of a violent offence, as a party to a joint venture, commits that offence, and if the court is of the opinion that there is a substantial risk of serious harm to members of the public from his commission of such offences in the future, the statutory condition is satisfied. Violent bank and ATM robbers need getaway drivers, and by acting as a getaway driver for a violent robbery an offender commits the offence of robbery and is party to the risk of serious harm being occasioned to the public from his commission of that offence.
15. A finding of dangerousness is fact-sensitive, and involves the application of judgment as to the incidence and size of the risk. The appellant referred us to the judgment of this Court in Brooks [2009] EWCA Crim 367. The appellant had pleaded guilty to robbery. The offence involved an attack by four or five men on a public house manager. One of the men used a knife to threaten the manager in order to obtain the security code for the till. The manager suffered a superficial cut to the cheek. The Court quashed a sentence of imprisonment for public protection on the ground that there had been no justification for the finding of dangerousness. However, both the facts of the offence and the antecedents of the appellant were very different from those of the present case. The robbery was unsophisticated. The Court accepted that the appellant had not known about the knife, which had been picked up within the public house; and the appellant was relatively lightly convicted. The difference between that case and the present is amply demonstrated by the fact that the determinate term substituted was 6 years' imprisonment.
16. Moore had shown himself willing to be party to robberies that did occasion the risk of serious harm to members of the public. It is of little relevance that no serious harm was in fact caused: it is to be assumed that harm was avoided because the victims of the robberies succumbed to the threat of violence. If they had not done so, the threat might have become actuality.
17. In sentencing Moore and his co-defendants, the judge said:

You, William Moore, likewise present as a dangerous offender. As the author of the pre-sentence report observed, you problem solve through crime.

…

The long and short of it is that all of you are prepared to use serious crime to resolve your problems, irrespective of the consequences to others, and are totally entrenched in that lifestyle. The pattern of your offending, and the increase in its escalation, leaves me in no doubt that the dangerousness provisions apply to each of you. The question for this court's consideration is how it should be reflected in the sentence upon you.

18. The finding of dangerousness was amply justified.
19. The appellant's second submission is that, if the finding of dangerousness was justified, the judge failed to consider the imposition of an extended sentence, which would have been sufficient protection to the public. We accept that a sentence of imprisonment for public protection is appropriate only if the lesser sentences of imprisonment simpliciter and an extended sentence of imprisonment are inadequate: Attorney General's reference (No. 55 of 2008) [2009] 1 WLR 2158 [2009] EWCA Crim 655.
20. On this issue, the judge said:

In your case, William Moore, the pre-sentence report seemed to suggest that because you were absent from the scene of the robbery, a proposal for an extended sentence of imprisonment of a determinate nature, rather than imprisonment for public protection, was appropriate, and one which would enable the risk in your case to be managed effectively. Just because you were not an actual robber, it does not seem to me to amount to an argument that you are any less of a danger than those who were. At the risk of repeating myself, for which I make no apology, those who drive getaway cars for armed robbers are just as much part of the plan and share the same aims and intention as those who are armed, namely to commit armed robbery with a loaded shotgun, which will be used if necessary to achieve the aims of the gang.

In reaching my concluded view as to the dangerousness which you present and the way in which that dangerousness should be addressed, I have considered carefully the submissions made by Mr Myers on behalf of you, Richard Walsh, and which apply equally to you, Mr Moore and Mr Noakes, that the longer the sentence and period of licence thereafter, the easier it is to reduce the risk to an acceptable level. Though I have reached such a view in the case of Jonathon Walsh, I do not share his confidence in relation to any of the remaining three of you. I do not accept that any of you is able or willing at this stage or for the foreseeable future to change his way of life. Each of you is a professional robber.

21. The first part of this extract expands on the judge's reasons for his finding of dangerousness. We entirely agree with them. The second part demonstrates that he considered whether an extended sentence, and a fortiori a non-extended determinate sentence, might be sufficient. He presided over the trial of the firearms offence, and was in a better position than this Court to determine the appropriate sentence. He was not bound to accept the assessment of the pre-sentence report, and gave reasons for not doing so. We saw no reason to interfere with his conclusion.
22. Lastly, it was submitted that judge's starting point of 17 years was too high, and the discount for Moore's plea to the offence of conspiracy to commit robbery too low. He was a close associate of Richard Walsh. He played an important part in the offence, the seriousness of which is obvious. The offences were committed while he was on licence. We saw no basis for differing from the judge. The discount of one twelfth cannot be faulted, given the lateness of the plea to conspiracy and the plea of not guilty to the firearms offence, which the appellant knew would if proved substantially increase his sentence. The judge considered that the appellant and Walsh had persuaded or pressurised Noakes to accept sole responsibility for the firearm, giving an account described by the judge as preposterous.
23. The judge's sentencing remarks show that he carefully and seriously considered the sentences he was to impose. We saw no reason to fault his reasons or his conclusions. Accordingly, the appeal was dismissed.