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
		2 August 2012

LORD JUSTICE GROSS:

INTRODUCTION

1. On 20 February 2012 in the Crown Court at Coventry the appellant Smith (now aged 29) pleaded guilty on re-arraignment to the offence of conspiracy to commit robbery. On 15 March 2012 before His Honour Judge Carr and a jury the appellant Lawlor was convicted of the same offence, conspiracy to commit robbery. On 16 March 2012 Lawlor was sentenced to twelve years' imprisonment (less the days spent in custody on remand) and Smith was sentenced to nine years' imprisonment (less the period spent in custody on remand). The difference between the two sentences reflected Smith's plea of guilty for which he received credit (albeit in a reduced amount). Each appeals against sentence by leave of the single judge.
2. The jury were unable to agree upon a verdict in relation to a co-accused, and a retrial was ordered.
3. Before turning to the facts, we should record one regrettable feature of the appeal hearing. Both the transcript of the judge's sentencing remarks and the Criminal Appeal Office Summary contained an error as to the amount taken in the robbery, namely that £1,008 had been taken rather than the true figure of £108,000 – a figure 100 times greater. Most unfortunately, neither Mr Edie (representing Lawlor) nor Mr Arnold (representing Smith) drew the court's attention to this error until after the conclusion of our judgment, when Mr Edie did so. Each member of this court had been struck by the low figure but had assumed that it was a quirk of fate. At all events, the erroneous figure had served to persuade us that some if limited reduction to the sentence was appropriate. We had indeed indicated as much in our judgment. Once, belatedly, informed of the true figure and after discussion with counsel, the court rose. After fresh consideration of the matter in the light of the true figure involved, we indicated that the appeals would be dismissed. We also and in terms made it plain that the decision to dismiss the appeals (having initially been minded to allow them) did not amount to punishing the appellants for any failure on the part of their counsel – but rather to sentencing the appellants on the true factual basis. Albeit that this involved a change of view to the appellants' detriment, we were satisfied that no injustice to the appellants was involved both (1) because the matter was corrected within minutes and (2) the appellants cannot complain of being dealt with on an accurate factual footing. The judgment which follows refers solely to the factual picture as corrected and the decision to dismiss the appeals. We have nonetheless thought it appropriate to explain the history of the matter here. We confess and record that we were deeply unhappy at the delay on the part of counsel in informing us of the true picture; this was most unfortunate.

THE FACTS AND THE SENTENCE

4. The facts are these. At about 9.45pm on 10 January 2011 a burglary took place at an occupied dwelling-house in Leamington Spa. Keys to a BMW motor car and a Volkswagen Passat motor car were stolen and the vehicles were driven away from outside the property.
5. One week later, on the afternoon of 17 January 2011, the BMW was driven to a car park close to a branch of the HSBC bank in Balsall Common in the West Midlands. Lawlor drove the Passat, which had been fitted with false number plates, to the same location. There were two other men with him. Both were dressed in dark clothing and wore balaclavas. He arrived outside the bank at about 4.45pm -- fifteen minutes after it had closed. At the time the bank manager was replenishing the cash machine from the inside of the bank. This exercise was undertaken after the bank was closed for security reasons.
6. Lawlor manoeuvred the Passat forwards and then reversed into a parking space directly outside the bank. Shortly before 5pm he reversed the car at speed towards the bank and smashed the glass front of the bank. He then drove the car forward slightly and reversed back into the bank for a second time. The two masked men jumped out of the Passat and shouted at the two cashiers and the manager, who had been struck by flying debris when the car rammed into the bank. The two men grabbed cash boxes containing a total of £108,000 and got back into the Passat. By this time the BMW had been manoeuvred into a position where it was ahead of the Passat, and both cars were driven off in convoy at speed. The robbers subsequently abandoned the Passat, but the BMW and the money were never recovered.
7. Lawlor had been identified as the driver of the Passat. Later that evening he was arrested at his home address. He denied the offence in interview.
8. Smith was subsequently arrested. He pleaded guilty on the basis that he was the driver of the Passat, but the basis of plea was not accepted by either the Crown or the judge, hence the reduced credit.
9. In careful sentencing observations the judge remarked that this was an extremely well-planned offence in which a vehicle was used to attack a bank. Two cars had been stolen beforehand. Lawlor knew the branch that was targeted as he was a regular customer there. The judge (who had tried the case) concluded that he also probably knew when the cash machine would be refilled. Lawlor had driven the stolen Passat there and had had two masked accomplices with him. The BMW had been parked close to the bank and had been made available as a getaway vehicle if the Passat could not be driven after the ram-raid. The Passat was driven at speed towards the bank and the two masked men had leapt out and shouted at the staff. It was accepted that no weapons were used, but it must have been a terrifying experience for the people present. Over £108,000 was stolen and the whole operation lasted 29 seconds. Both cars were driven off. The Passat was abandoned and the BMW was never found. The whole operation showed that there had been a considerable amount of planning. That was demonstrated by the absence of fingerprint evidence, their effective radio silence at the time, and the fact that the money had not been recovered. In summary, this was a sophisticated, well-planned, professional operation with a bank as its target. It was a serious crime which had to be punished accordingly.
10. Smith had offered an unrealistic basis of plea which had not been accepted. Lawlor did not have the benefit of a guilty plea. There was no need to distinguish them as they bore equal responsibility for the conspiracy. Smith's record was worse, but for both of them the offence represented a significant increase in the level of their offending. The Crown had drawn the court's attention to R v McCaffery and McCaffery [2009] EWCA Crim 54; [2009] 2 Cr App R(S) 392, because the value of the property stolen was comparable, a car was used and they were lucky that no serious injury had been caused. The judge accepted that no weapons had been used (a point to which we shall return). The appropriate starting point was twelve years. Smith had indicated at a fairly early stage that he proposed to plead guilty, and so he was entitled to a 25% discount.

THE GROUNDS OF APPEAL

11. The grounds of appeal, developed orally by Mr Edie for Lawlor and adopted by Mr Arnold for Smith, can be shortly summarised. On the authorities the sentence of twelve years' imprisonment imposed on Lawlor was manifestly excessive. Mr Edie referred us to a number of decisions, in particular R v Delaney [2010] EWCA Crim 988; [2011] 1 Cr App R(S) 16, in which the starting point for a single ram-raid burglary was said to be in the order of seven years' imprisonment. Mr Edie's submission was that the sentence on Lawlor should have been pitched at that level or thereabouts and that insofar as the judge relied on McCaffery (in which the charge was conspiracy to rob) he had fallen into error. McCaffery was a case on a different scale. Mr Edie suggested that no weapon had been used and he raised (if somewhat tentatively) the question of the true offence with which the appellants should have been charged.
12. Mr Arnold adopted Mr Edie's oral submissions. In his written submissions he contended that the car was used only to gain entry into the premises and that no significant threats had been made to the staff.

DISCUSSION

13. The nature of ram-raiding can differ. Sometimes it involves a raid in the dead of night when no one is around and when, in truth, the attack is an attack upon property with no individuals at the receiving end. On other occasions it can take place in a crowded location with numbers of people present, whether in the premises attacked or outside. Whichever form it takes and whether charged as theft, burglary or robbery, it is not easy to pigeon-hole ram-raiding within any particular guideline.
14. In R v Byrne (1995) 16 Cr App R(S) 140 the court dealt with an offence which was charged (on the particular facts of that case) as theft. In giving the judgment of the court Lord Taylor CJ said (at pages 141-142):

"Counsel on behalf of the appellants have sought to suggest that this was only a case of attempted theft; it failed; it was a one-off offence; and the learned judge treated it all too seriously. In our judgment, that view cannot be sustained. This type of offending, which involves 'ram-raiding', taking vehicles belonging to other people in order to steal from a building, not just be breaking in and taking something, but by breaking down the building itself, has become prevalent and is extremely serious. The gravity can be stated in this way. First, it is almost always a composite offence: it involves the theft of other vehicles before the main theft is attempted. Secondly, it involves targeting a particular prize, and planning the offence with deliberation .... Thirdly, whatever may have been obtained by thieves by this method, or (in this case) whatever may have been attempted to be obtained, there will almost always be serious damage to property ....

A further aggravating feature is that this type of offence is aimed at defeating even the best of security. It is no use the owners of buildings, the proprietors of banks or building societies seeking to apply all manner of security devices if a JCB digger is going to be driven bodily through the front window. It is a kind of military operation against whatever security precautions may be applied to any building.

Finally, there is the element of breach of the peace. In the middle of the night in Herne Bay, there was an operation going on which roused people and put some of them in fear. It is an affront to civilised society; it is an outrageous offence. It transcends the ordinary type of attempted theft."

Those observations remain entirely apposite with the adjustment of a JCB digger to the use of a car in a case such as this, albeit that this case falls into the robbery category, rather than the theft or burglary category.

15. Even as an offence of robbery, ram-raiding does not neatly fall within any particular guidelines, as explained in R v Hibbert [2008] EWCA Crim 1854 where Hughes LJ said this:

"23. The guidelines are important and govern sentencing, but they are just that: guidelines. The category of offences described as less sophisticated commercial robberies is more appropriately targeted at the kind of corner shop robbery, which is significantly less grave than this kind of offence. Equally, this is not what is sometimes described as a Turner kind of offence, involving an armed raid on bullion vans or cash deliveries or the like. It seems to us that it is somewhere between the two.

16. But there were important and grave features of this case .... The object of the exercise was to cause as much fright to the public as was possible in order to enable the offenders to complete the theft swiftly. It is not simply a case of menace or of actual force to the victim of the robbery; it is a case of general fear and threat. In the case of both offences, that was achieved by numbers and by the use of frightening implements. Whether they are better described as tools or weapons is perhaps a moot point. They were in a sense tools. They were certainly not used to injure any person, but they would have contributed very significantly to the fear that must have been caused."

In that case the court was dealing with a ram-raid on a jeweller's shop in the pedestrianised shopping centre of Banbury. There were a large number of shoppers about. One of the vehicles was used to ram the shop window by reversing into it. Three masked men had emerged from the vehicle, two with axes and one with a truncheon. They smashed the shop window and stole watches worth nearly £13,000. The truncheon had been waved menacingly by the man holding it to discourage anyone else from approaching. The precise sentencing conclusion in that case is neither here nor there. What is of significance is the observation of this court (at paragraph 25) that, following a trial, that offence would have justified a sentence of the order of ten years.

17. In McCaffery, to which the judge had been directed, the charge (as already noted) was conspiracy to rob. It was the robbery of a jewellery store. It involved the display of overwhelming force and the destruction of much property in the process. Jewellery to the value of over £100,000 had been taken (and since recovered), but a value of £1.5 million remained outstanding. This court took the view that, following a guilty plea, the appropriate sentence was ten years' imprisonment, which reflected a sentence of fifteen years' imprisonment after a trial.
18. Finally, Delaney (supra) contains a helpful review of a number of early authorities in the theft or burglary line, including Attorney General's Reference Nos 45, 46, 47, 48 and 49 of 2007 (R v Carl Kevin Callaghan and Others) [2007] EWCA Crim 3383; [2008] 1 Cr App R(S) 88. It was in the context of rejecting a submission on behalf of the appellants in Delaney that the total sentence for a number of offences should be in the region of seven or eight years that the court cited Callaghan as suggesting a starting point in the region of, or approaching, seven years following a trial for a single ram-raid offence.
19. In R v Thomas [2011] EWCA Crim 1497; [2012] 1 Cr App R (S) 43, this court, presided over by Lord Judge CJ, considered sentencing levels for serious commercial robberies at top end of the sentencing range. We need not consider Thomas in detail; it suffices to underline that the court there drew attention to the relationship (not a mathematical calculation) between the level of sentences for murder and for all serious cases involving violence, so including robbery. The higher sentences for murder in recent years therefore suggested higher sentences across the entire range of offences of violence.
20. Against that background, we return to the instant case. This was manifestly serious offending. It was entirely properly and sensibly charged as conspiracy to rob. The robbery was timed, as the judge recorded, for the emptying of the cash machine. It necessarily followed that there would be individuals on the premises at the time they were attacked. Hence the robbery charge – this was not burglary in the dead of night with no one present. The offence had a number of features:

(1) There was sophistication and careful planning as to the bank targeted, the timing, and the availability of the cars stolen beforehand and professionally used.

(2) A number of robbers were involved.

(3) Masks or disguises were worn.

(4) The Passat car was used as a weapon to gain entry into the premises. We reject the submission that no weapons were used; the vehicle was the weapon.

(5) As is a hallmark of such offending, the tactic is speed and shock, so numbing individuals on the receiving end or in the vicinity. Moreover, the two appellants have significant criminal records, even if not on the same scale as here.

21. The appellants deserve no sympathy whatever. Serious offending must be met by substantial sentences. The only question is whether the sentences were out of line with the authorities. It would of course be wrong to sentence on a compartmentalised basis and it is always wrong to treat sentencing as a mechanistic arithmetical exercise. Nonetheless, we feel able to discern two broad categories in the decisions to which we were referred. The first, for offences of burglary (or theft), includes cases such as Delaney (supra), which attract a sentencing starting point in the region of seven years following a trial for a single ram-raid offence. The second, for offences of robbery, produces decisions such as Hibbert (supra) and McCaffery (supra), suggesting sentences of the order of 10 – 15 years for a single such offence after a trial. In our judgment, it is the second category which is clearly pertinent here. Moreover, decisions in that second category fall to be considered in the light of the higher sentence levels contemplated in Thomas (supra).
22. In all the circumstances of the case (set out above) and bearing in mind (inter alia) that a sum in excess of £100,000 was involved, the Judge was entitled to sentence at a level between Hibbert and McCaffery. Although it may be right to regard the sentences of twelve years' imprisonment for Lawlor and nine years' imprisonment for Smith as being severe, we are quite unable to see them as manifestly excessive.
23. Accordingly, the appeals against sentence are dismissed.

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