England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ATTORNEY GENERAL REFERENCE NUMBERS: 41, 42 & 43/2012
UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/11/2012

Lady Justice Rafferty :

1. This is an application by Her Majesty's Attorney General in reliance upon the provisions of S36 Criminal Justice Act 1988. We give leave.
2. Matthew Anthony Wood born on 16^th May 1993 is 19. Christopher Weaver born on 1^st January 1994 is 18, Daniel Jones born on 5^th July 1991 is 21.
3. On 31^st July 2012 in the Crown Court sitting at Shrewsbury, they were sentenced thus:

(i) Wood 6 years 9 months detention in a YOI for robbery (count 10), 18 months consecutive for a range of other offences (counts 1-9), the total 8 years and 3 months. 400 days spent on remand were to count towards sentence He was disqualified from driving for 3 years and ordered to take an extended driving test.

(ii) Weaver 6 years 4 months detention in a YOI for robbery (count 10) and a 18 months consecutive for a range of other offences (counts 1, 7, 8 and 9), a total of 7 years 10 months. 232 days were to count towards sentence. He was disqualified from driving for 18 months and ordered to take an extended driving test.

(iii) Jones 6 years 9 months imprisonment for robbery (count 10), 254 days to count.

4. They were arraigned on 30^th September 2011 for robbery of John Savage. The trial date was 13^th February 2012 and on 14^th February 2012 they were arraigned on an 11 count indictment. Some guilty pleas were entered on 14^th and more on 17^th May 2012.
5. Wood lived in a one bedroom flat in Wem, Shropshire where too at the material time lived Weaver. Wood and Jones had met in 2011 whilst undertaking community orders.
6. Count 1 (conspiracy to steal) pleaded against Wood and Weaver was a general count.
7. Counts 2 (burglary) & 3 (aggravated vehicle taking) were pleaded against Wood. At about 11.30pm on 10^th June 2011 John Jenkins, owner of Jenkins Spares secured his premises in Wem. During the night the rear door was forced open with a crow bar. Money, a large number of tool kits and torches and other items were stolen, some recovered from Wood's flat. John Jenkins' Renault Kangoo van, MJ05 YGF, parked at the Jenkins Spares' yard was stolen after the burglary. It was found burnt out just before 5am on 11^th June 2011 on a rural road Drakey Lane near Wem.
8. Counts 4 (burglary) & 5 (aggravated vehicle taking) was pleaded against Wood. At about 07.45am on 12^th June 2011 during the burglary of Veolia Environmental Services were taken keys for vehicles including two Mercedes Sprinter vans, DK57 UGA and DA59 UNW. DK57 UGA was found burnt out on Drakey Lane. Keys taken for an 18 tonne recycle collection vehicle were subsequently found at Wood's flat.
9. Count 7 (aggravated vehicle taking) was pleaded against Wood and Weaver. Either late on 18^th June 2011 or in the early hours of 19^th DA59 UNW, was taken from Veolia's premises. At about 03.20am on 19^th driven by Wood it went into a rural hedgerow. Wood and Weaver decamped.
10. Counts 8 (burglary) and 9 (theft) was pleaded against Wood and Weaver. John Savage, 76, had lived alone for many years at Factory Farm Loppington. Wood's parents were neighbours when Wood was a child and he had played on the Farm. In the early hours of 19^th June 2011 W and W from one of the barns stole two generators which they placed in DA59 UNW. When Police recovered it they found the generators, damaged in the crash.
11. At about 8pm on 19^th June 2011 John Savage parked his Mercedes 4 x 4 HY52 FJP, on the yard at Factory Farm. It was not locked and the keys were left in it as the yard was secured and covered by CCTV cameras. At 00.37am on 20^th June 2011 Wood and Weaver were captured on CCTV footage. They stole the Mercedes found undamaged and locked at 09.55am on 20^th June 2011 in a field near Dobson's Bridge.
12. In the early afternoon of that day Wood, his cousin Daniel Thomas, Weaver and James Ellis at Wood's flat discussed the crashing of the van in the early hours of 19^th June 2011. Ellis would tell Police that Wood and Weaver said they were thinking of returning to Factory Farm 'breaking in to the house, tying up the old man that lives there and beating him up so that he would tell them where his shotguns were'. Wood said he intended to sell the shotguns. Ellis' account is not accepted by Wood and Weaver as said during interview about his own involvement in the robbery and after he was aware of what had taken place. Daniel Thomas' account of this conversation did not include those details. Thomas said Wood spoke of returning to steal two quad bikes.
13. On 21^st June 2011 Wood sent James Appleyard, the text "Kk mate u should have said Sunday night mate I had an 02 plate Mercedes m1270 black its gone now the pigs have it".
14. Count 10 (robbery) was pleaded against all three.
15. The trio was driven by James Apple to Factory Farm arriving at about 11pm on 21^st June 2011. They had plastic shoe covers, gloves, torches and hairnets. The Crown's case (not accepted) was that they also had a cosh. They were seen by Darren Wood, who said Wood and Weaver wore hoodies with "strange bulges in the front of the hoodies, as if they had something hidden down the front". They crossed the Farm avoiding CCTV cameras and by an insecure window entered John Savage's house.
16. John Savage in bed asleep was woken by a man shining a torch in his face. As told he got out of bed. The man said "where are your guns, where are your guns?" and John Savage said he had none. The man asked for his wallet and John Savage gave the same answer. As told he went downstairs. The man had a cosh "like an old fashioned policeman's truncheon but it wasn't". Told to lie down as he did he saw the man had bright blue covers over his shoes. The man put a foot on John Savage's back and said "Where's your money?" John Savage said all his money was in his trousers. "frightened to death" he became aware of a second man who tied his hands behind his back. A blow to the head with either a torch or the cosh left him unconscious. He was struck again. The three left John Savage tied up and unconscious. They had taken £20 from the pockets of his trousers which were in his bedroom. They took the keys to his Ford Ranger PY08 LZX, which they drove away and later left at James Appleyard's home.
17. John Savage shortly regained consciousness and walked to a neighbour. He had suffered bruising to his forehead, his left eye lids, the top of his head and the left side of his face. Cuts to his left lower eyelid and tear duct were surgically repaired. A fracture of the left orbital floor did not require surgery.
18. Police found at Wood's flat an ordinance survey map with Factory Farm and Veolia marked. On a separate document a list of 5 names/properties included John Savage's name and next to it "guns". Also listed were other properties including those of Wood's relatives and his former employer, further evidence of the conspiracy to steal (count 1).
19. On 22^nd June 2011 at Wood's flat a rucksack holding blue shoe covers was seized. More were in a kitchen cupboard.
20. Interviewed Wood agreed he had lived next door to Factory Farm and knew John Savage. He denied entering it on 21^st June 2011, assaulting John Savage and stealing his Ford Ranger. He accepted he had blue shoe covers in his flat and claimed they dated from his work at Griffiths Chicken Farm. In subsequent interviews he answered some questions.
21. Weaver provided a detailed explanation of his movements on 21^st June 2011. He denied the robbery and asserted that no science would link him to the scene. His knew Wood and Jones were to commit a robbery involving a beating so as to steal both guns and pickup.
22. Jones denied robbery and entering Factory Farm.
23. Wood's aunt, Belinda Thomas, revealed that on her 16^th June 2011 visited to his flat she noticed bolt croppers, plastic gloves, hairnets and blue plastic overshoes. She asked what they were for and Wood said "to get rid of my DNA".
24. At the PCMH on 30^th September 2011 all three pleaded not guilty to robbery at Factory Farm. On 9^th February 2012 legally represented at an appointment at Wem PS Weaver accepted his involvement in and planning of the robbery.
25. On 14^th February 2012 Wood pleaded guilty to counts 1, 2, 3, 4, 5, 7, 8 and 9. He pleaded not guilty to count 10 (robbery) but guilty to the alternative burglary (count 11). On 17^th May 2012 he pleaded guilty to robbery.
26. On 14^th February 2012 Weaver pleaded guilty to counts 1, 7, 8, 9 and 10. A basis of plea was not accepted by the Crown. A trial on count 10 for Wood and Jones was fixed for 21^st May 2012. On 12^th May 2012 when the officer in the case spoke to Jones in connection with an unrelated matter Jones said "I'm going to go guilty on the first day. I was there so I can't deny it. The old man has suffered enough and it is not fair to put him through it". On 17^th May 2012 Wood and Jones pleaded guilty to count 10. Bases of pleas were not accepted by the Crown.
27. John Savage said:

"Through no fault of my own, I have had my life turned upside down and am considerably out of pocket. I have been left angry by what has happened to me and disturbed that young people who committed this horrific offence have such empty lives that they have nothing better to do than steal and beat up an elderly man." "Not one day passes where I don't think about what happened to me and I am extremely annoyed about what happened and what they did to me".

28. Wood had 3 previous convictions, all for offences in 2010, two for dwelling house burglary. In June 2011 he was subject to a Youth Rehabilitation Order. Weaver had no convictions or cautions. Jones had 3 previous convictions all for offences in 2011. The robbery was committed during the operative period of a suspended sentence.
29. The Judge had in respect of each defendant a pre-sentence report and character references for and a letter from Weaver.
30. The Attorney argues for the following aggravating features:

i) A dwelling house robbery at night

ii) More than one offender

iii) A victim vulnerable by reason of age, living alone in a rural setting. The police and neighbours might be some distance away. There was significant local concern as to intrusion and safety.

iv) A very significant level of planning and premeditation. Wood sought guns. The three were astute to the need to avoid detection, as shown for example by the shining of the torch into the eyes of their victim so as to guard against identification.

v) Taking a cosh to the scene

vi) The robbery was with an intention to obtain firearms. The Attorney suggests this may be the most compelling of the aggravating features. That there was an intention to sell is no less serious than an intention to use.

vii) The victim, known to Wood, was targeted

viii) There was a high level of violence to the victim's head leaving him unconscious and restrained. The Attorney relies upon the way the violence was inflicted. Mr Savage was woken, frog-marched downstairs, and, unresisting, subjected to gratuitous violence – kicked once unconscious. This was, the AG suggests, violence for violence's sake.

ix) The victim was exposed to a risk of even more serious injury/death

x) For Wood and Weaver there was repeated and escalating criminality in June 2011

xi) Wood was subject to a Youth Rehabilitation Order

xii) Jones was subject to a suspended sentence

31. The Attorney accepts that there were the following mitigating features:

i) The guilty pleas

ii) The youth of the offenders. That said, the AG invites consideration of whether their level of sophistication, added to their ages, eighteen and just over, would suggest only limited reduction.

32. The sentences are said to have failed adequately to reflect the overall gravity and aggravating features of the case, in particular the high level of violence, the extent of the premeditation and that the purpose was to obtain firearms. Following trial 8 years would not have been appropriate. Too much weight was placed on the age of the three.
33. The Judge said that Weaver who had pleaded guilty to robbery shortly before his trial would receive 20 % credit. As to the balance of offences he had pleaded guilty at the first opportunity and received full credit. Jones and Wood pleaded guilty shortly before trial and received 15% credit. Wood and Weaver were the main offenders. Wood was involved in virtually all the offending and arguably the prime mover though to a considerable degree assisted by Weaver. These offences were committed by thugs who went in with weapons mob handed, knowing who was there and that resistance would not be strong. Had guns been taken and not recovered the sentence would have been approximately one third longer. Sentence was for a joint enterprise. The Judge had their youth in mind. All had records which did not contain offences of comparable seriousness to those indicted. He reminded himself of totality. After trial the robbery would have attracted eight years.
34. Developing his submissions on the Sentencing Guidelines Council's Definitive Guideline on Robbery the AG suggests that had the three been in their twenties, post-trial the appropriate sentence would have been towards the bottom of the 13-16 year range for robbery. To make that submission good he relies upon the number and nature of aggravating features. In contrast, he suggests that the motive, to acquire guns, elevates the matter to the top of 9-13 year range for aggravated burglary. Whichever approach is adopted, he contends, the outcome is the same. Taking 13 years and discounting for youth to 12 then discounting for plea, leads to a term between 9.5 and 10 years.
35. From a distillation of the authorities the AG derives these propositions: There is for robbery a broad post-trial range of sentencing from five to fifteen years. Where sentence was towards the bottom of that range there was in general no or only minor injury. On occasion a weapon was taken to a scene but was not used. Finally, in the more serious circumstances, the vulnerable or the elderly had been targeted, there was significant injury inflicted by use of weapons taken to the scene. In this final category the appropriate range may be between thirteen and sixteen years post- trial, but even if it were less, it achieved double figures.
36. Counsel relied upon:

R. v. O'Driscoll (1986) 8 Cr. App.R. (S) 121

Attorney General's Reference 32 and 33 of 1995 [1996] 2 Cr.App.R.(S) 346

Attorney General's Reference 113 of 2004 (Follows) EWCA Crim 3209

Attorney General's Reference 38 and 39 of 2004 (Randall and Donoghue) [2005] 1 Cr App R (S) 60

Attorney General's Reference 89 of 1999 [2000] 2 Cr.App.R.(S.) 382

Attorney General's Reference 38 39 and 40 of 2007 (Crummack et al) [2008] 1 Cr App R (S) 56

Attorney General's Reference 124 of 2008 (John Doran) [2009] 2 Cr.App.R.(S.) 29

R v Buckley [2012] EWCA Crim 1463

R v Samuels et al [2012] EWCA Crim 1618

R. v. Michael Roe [2010] 2 Cr.App.R.(S.) 89

R. v. Gary House and David Smith [2010] EWCA Crim 188

37. In Attorney General's Reference No. 89 of 1999 the 33 year old defendant forced his way in to the home of a frail man of 69, pushed his victim to the floor, pressed a thumb into his Adam's apple, pulled from the wall the telephone cable and wrapped it round the victim's neck so tightly that he lost consciousness. The injuries caused were relatively minor. £120 cash was stolen. The defendant had previous convictions for robbery and for burglary including one robbery of the same victim. He had previously been sentenced to seven years imprisonment. He was convicted after trial and six years imprisonment was increased to eight. But for double jeopardy the figure would have been ten.
38. In AGs reference 38 and 39 of 2004 (Randall and Donoghue) [2004] EWCA Crim 1820 Randall was 21 with previous convictions including burglary. Donoghue was 39 with a substantial record of previous convictions, mainly for burglary and theft. They targeted a frail man of 57 known to be vulnerable and to have learning difficulties. When he answered his door they pushed him inside and punched him, causing a significant injury. His entire savings, £100, was stolen. They pleaded guilty at a preliminary hearing. Sentences of three years were increased to five and a half. But for double jeopardy six and a half to seven would have been appropriate.
39. In Attorney General's Reference No 113 of 2004 (Follows), [2004] EWCA Crim 3209 the twenty-three year old defendant had previous convictions including burglary and assault, and robbery in the street of an elderly victim. A vulnerable and elderly couple was targeted and robbed in their home. The man was hit with a claw hammer to the head three times, the woman, an asthmatic with emphysema, was robbed of her handbag. There had been excessive violence and significant injuries as well as psychological damage. Five years after pleas was not increased. After trial eight to nine years would have been appropriate as would six years after plea but double jeopardy protected the defendant.
40. In AGs reference 38 39 and 40 of 2007 (Crummack et al) [2007] EWCA Crim 1692 Campbell aged 30 had a large number of previous convictions and had served a four and ah lf year sentence for burglary and assault. Crummack aged twenty-one had a single caution. Stell aged twenty two had some convictions including short custodial sentences. They robbed two men in their home threatening them with an iron bar and a rolling pin. The older was punched and died leading to a manslaughter count against Crummack. They pleaded guilty. Campbell was sentenced to two and a half years, Crummack to two years nine months concurrent with three and half years for manslaughter and Stell to two and a half years. In each case the term was increased to five years. Eight to eight and a half would have been appropriate after trial
41. In Attorney General's Reference No. 124 of 2008 (John Doran) [2008] EWCA Crim 2820 a nineteen-year old defendant with previous convictions including a distraction burglary of a seventy-eight year old was one of two cruising the Thames Valley seeking elderly vulnerable victims. A man of seventy-six was followed into his home and seized and gripped as he reached for a panic alarm. A lady aged eighty six after her front door had been forced was made to sit whilst the defendants pulled out the telephone wires and searched for items to steal. Convicted after trial three years detention was increased to four and a half.
42. In Buckley a forty-six year old defendant had a bad criminal record including in 1986 shortening the barrel of a shotgun and being in possession of a firearm with intent to commit and indictable offence, and in 1998 aggravated burglary leading to a sentence of five years with two years consecutive for other offences. Pretending to be a police officer checking for counterfeit currency he entered the home of an elderly lady. When she realised and screamed he put his hand over her mouth and forced her down onto her bed. A neighbour had called the police and the defendant kicked one in the face knocking him down the stairs and continuing the assault. He pleaded guilty, was found statutorily dangerous and imprisoned for public protection with a minimum term of four years. He was not successful on appeal.
43. In Samuels a defendant aged twenty had a number of previous convictions including two for robbery. Other defendants had previous convictions not detailed in the transcript. They knew a public house included a room wherein was grown cannabis and arrived with a realistic imitation gun and with an axe. Beardsmore stayed outside, the getaway driver. Six people were held hostage, including a girl of ten. All were threatened with the imitation gun, held to the head of the child's mother. It was also pointed at a police officer. All four pleaded guilty to aggravated burglary and Anderson to using a firearm to resist arrest. Ten years for aggravated burglary for three defendants was reduced to eight. Imprisonment for public protection imposed on Samuels was quashed and replaced with a determinate term. Court of Appeal felt the judge's starting point of fifteen years should have been twelve.
44. In O'Driscoll the defendant with another hit a number of times a man of eighty to the head shoulder and legs with a hammer. He asked to be killed to get it over. He was told "I can do that as well". A lighted gas poker was held to his face before he was gagged and bound until found the next morning. He would spend the rest of his life in a wheelchair after what the court described as torture. He was convicted after a trial. Fifteen years was upheld.
45. In Pegg and Martin, Pegg aged twenty admitted aggravated burglary and Martin aged twenty-five was convicted of it and of attempted robbery. He was serving three and a half years for offences which included robbery. In the early hours, in balaclavas they broke into the home of a man aged seventy three. A third punched and kicked him, and a pillow was held over his head. He was stabbed and slashed with a knife, wounded to head arms and legs. He was threatened with death and the ripping out of his liver. Pegg had pleaded with a co-defendant to stop, at the height of the violence. Pegg's two years and two years consecutive for other burglaries was increased to four and to three. Martin's seven years concurrent was increased to ten, but the Court of Appeal said that had it been sentencing at first instance ten years would have been insufficient.
46. Roe with a female accomplice broke into the flat of a young single woman. She was dragged round the rooms and the female threatened to stab and to kill her. On her bed she was bound hand and foot. Her engagement ring was taken from her finger. She feared rape. They left her with the threat that if she quit the flat within fifteen minutes she would be killed. Roe had convictions here and in Ireland including false imprisonment, aggravated burglary and robbery, the circumstances very similar. Imprisonment for public protection with a minimum term of four years, a notional determinate term of twelve years post-trial was upheld.
47. In House and Smith three entered the home of the victim whom they beat severely causing cuts and bruises, broken facial bones requiring plating and causing double vision, and stole his safe. His father was made to stay downstairs. The attack may have been linked to a drugs debt. House was twenty two and had previous convictions, having served a twenty-one month sentence in 2006/7. Smith, thirty-seven, had a long list of convictions in Canada including burglary, and in the UK. Nine and a half years following guilty pleas was reduced to seven. Something a little either side of ten would have been appropriate after trial, fourteen would have been too long.
48. For Wood the submission is that Mr Savage described seeing a cosh, held in the same hand as a torch. The Judge concluded: 'He was hit in the face with some weapon, in all probability a torch'. Wood relies upon the surrounding circumstances – dark and then sudden light - coupled with the inevitable shock and distress for Mr Savage to suggest that the conclusion that a cosh was used is not safe.
49. The degree of planning he also argues was overstated. It was certainly not professionally planned. Overshoes were not specifically obtained to commit the robbery, but were to hand because of Wood's employment at a chicken farm. There was no serious attempt to hide evidence. It was artificially dramatic to assert that the defendants were 'forensically aware'. The robbery represented a sudden escalation from vehicle thefts over a short period. Guilty pleas were entered at the first opportunity once an eleven count indictment had been preferred. The other offences Wood answered which led to a consecutive term of 18 months were in general theft of vehicles and tools from commercial premises for onward sale to a co-defendant. That was a significant factor in the totality of his sentence which, he submits at six years nine months is a very long time for a young man. Wood accepts that the intention to steal firearms aggravates the offence and very significantly so but submits that it should be seen in the context of immature young men who committed a serious but unsophisticated offence.
50. Submissions by Weaver and Jones echoed the points of general application put forward by Wood.
51. In our judgment the Judge was correct to describe these offences as committed by thugs who went in with weapons mob handed, knowing who was there and that resistance would not be strong. He was correct too to underline the importance in the factual background of the motive to take guns.
52. However he fell into error in identifying the starting point as eight years after trial. As our review of authority makes plain, the appropriate sentence after trial would have been in the region of ten to eleven years. There should then have been a discount for age, and for plea at the percentages the Judge correctly identified.
53. We quash the sentences imposed for robbery and for them substitute, for Wood nine years in a young offender institution, for Weaver eight years and for Jones eight and a half years imprisonment. All other dispositions and consequential orders are unchanged.