England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WORCESTER
His Honour Judge Cavell
T20107173

		Royal Courts of Justice Strand, London, WC2A 2LL
		21 December 2012

Lord Justice Moore-Bick :

1. In the summer of 2011 Alan Field, Marc Deganis, Andrew Hawthorne, Aden Maund, Craig Clarke, Kieran Murray, Jason Murray, Karl Gallagher and Jayne Morrison were all charged on an indictment containing 5 counts. Field, Deganis, and Hawthorne were charged on count 1 with conspiracy to commit a dwelling house burglary at 27 Fiery Hill Road, Barnt Green, Worcestershire, the home of a Mr. and Mrs. Dryhurst, in August 2007. Field, Maund, Clarke, Nathan Murray, Jason Murray and Karl Gallagher were charged on count 2 with conspiracy to commit robberies at various dwelling houses in the West Midlands between 25^th April and 16^th May 2010. One of those houses was 27 Fiery Hill Road.
2. The trial began on 26^th July 2011 in the Crown Court at Worcester before His Honour Judge Cavell. On 4^th August 2011 Clarke pleaded guilty on re-arraignment to conspiracy to rob. On the same day Field pleaded guilty on re-arraignment to conspiracy to burgle and conspiracy to rob and Maund pleaded guilty to conspiracy to rob. On 20^th September 2011 Hawthorne and Deganis were convicted by the jury of conspiracy to burgle. Jason Murray, Kieran Murray and Gallagher were each convicted of conspiracy to rob.
3. For reasons which are immaterial for present purposes sentencing was delayed for some months. On 16^th December 2011 Clarke, Field, Maund, Kieran Murray and Gallagher were all sentenced to imprisonment for public protection with minimum periods to be served in custody ranging from 10 years and 4 months to 8 years, less any time spent in custody on remand. Hawthorne and Deganis were each sentenced to 3 years' imprisonment. On 20^th December 2011 Jason Murray was also sentenced to imprisonment for public protection with a minimum period to be served in custody of 9 years less time spent in custody on remand.
4. Jason Murray now appeals against sentence by leave of the single judge. Hawthorne renews his application for leave to appeal against conviction after refusal by the single judge. Clarke applies for an extension of time of approximately 8 weeks in which to renew his application for leave to appeal against sentence following refusal by the single judge.
5. Mr. Dryhurst was a gun-maker who built valuable double-barrelled shotguns which he kept in his house at Fiery Hill Road. At around 7.30 am on 7^th August 2007 Deganis and Field went to the house with a view to theft. Deganis dressed as a police officer and Field posed as a customs officer. They used false documents to support their disguises. Field told Mr. Dryhurst that they had come for the purpose of seizing handguns and illegal cash kept in the house. The object of the burglary was to steal a large sum of money which they thought was kept in a safe. Field and Deganis stayed for two to three hours and searched the entire house, including a concealed safe. While in the house they took photographs of the safe and the gun cabinets. In the event they left empty-handed. Mr. Dryhurst reported the matter to the police, who discovered that the two men had been using false identities. However, the investigation was taken no further at that stage.
6. Hawthorne was alleged to have been present at the burglary but to have stayed outside keeping contact with Field and Deganis by telephone. The men had been driven to the house by Faye Tyrell, Field's partner at the time.
7. Count 2 related to a series of robberies carried out at 27 Fiery Hill Road and other properties in the West Midlands in April and May 2010. The robbery at 27 Fiery Hill Road was carried out by Field, Maund, Kieran Murray and Jason Murray on 26^th April. They had been recruited by Field who knew about the guns kept by Mr. Dryhurst. Clarke was also involved, although it is unclear in what capacity. At about 9.30 am the robbers forced their way into the house. They tied Mrs. Dryhurst's wrists behind her back and forced Mr. Dryhurst to unlock the gun cabinets. They then tied his wrists and made him sit next to Mrs. Dryhurst. While the robbery was going on Mrs. Dryhurst's sister arrived at the house. The gang tied her up as well before eventually leaving with eleven guns worth a little over £100,000.
8. The next robbery took place at a house in Hampton Lane, Solihull, the home of a Mr. and Mrs. Sheridan, on 8^th May 2010. Field, Clarke, Maund and Gallagher were involved on this occasion, although the precise nature of Clarke's involvement is unclear. At about 2 pm a number of men forced their way into the house. There was a struggle and they demanded money and the keys to a number of valuable cars parked in the drive. Mr. Sheridan handed over £400 cash that he was carrying. The gang tied the hands of both Mr. and Mrs. Sheridan and left with the money.
9. The third robbery took place at Gayley Farm, Lichfield on 15^th May 2010. Field, Maund, Kieran Murray and Jason Murray took part. Clarke was also involved in some capacity. The robbers, who were wearing masks over their faces, entered the house through the back door at about 10 pm while the occupants, Mr. Jennings and Ms Jones, were at home. Mr. Jennings was asleep on the sofa. He woke up to find hands around his throat. The robbers tied his wrists and legs; Ms Jones' wrists and ankles were also bound. They were both punched and threatened with being stabbed. Two of the men were carrying knives. Mr. Jennings was subjected to sustained violence. His necklace was torn from his neck and his watch taken from his wrist. The robbers left with three cars, around £1,500 in cash, some jewellery and some pieces of Spode pottery.
10. At some time after these offences had been committed Faye Tyrell separated from Field. She told the police about his involvement in the offences and in the course of doing so implicated the other accused.
11. We consider first Hawthorne's renewed application for leave to appeal against conviction. His case at trial was that he had not been involved in the conspiracy and knew nothing of the burglary.
12. Following Field's plea to count 1 the Crown applied for leave to amend that count (which had previously alleged that Field, Deganis and Hawthorne had conspired together) to allege that Field, Deganis, Hawthorn "and others" had conspired to commit the burglary at 27 Fiery Hill Road. The precise reason for that application is unclear, but it may have had its origin in a concern on the part of the prosecution that Field's change of plea might lead the jury to the conclusion that Deganis or Hawthorne or both must have been parties to the conspiracy which he had admitted. The judge observed that the situation had been brought about by events that had not been foreseen at the start of the trial and held that, since there was evidence (albeit disputed) that others had been involved in the conspiracy, leave should be given to make the amendment in order to avoid any risk of prejudice to the remaining two defendants.
13. What happened next is unclear. Mr. Murray on behalf of Hawthorne told us that he and counsel for Deganis applied for the jury to be discharged, but the judge made no formal ruling on any such application, as he would have been bound to do if one had been made. In those circumstances we are left with the impression that the possibility of discharging the jury may have been raised either in the course of the argument about the amendment of the indictment, or perhaps as part of a discussion about what, if any, steps should be taken in the light of the amendment for which the judge had by then given leave. What is clear, however, is that there was an application on behalf of both defendants that they be re-arraigned on count 1, a course which necessarily assumed that the jury would not be discharged.
14. The application for the defendants to be re-arraigned was based on the submission that the amendment introduced a completely new approach on the part of the Crown. However, the judge took the view that it was unnecessary to re-arraign the defendants. He thought that the amendment was of minimal significance because it simply reproduced the original allegations in a slightly different form. The case against the defendants had not changed.
15. Hawthorne now seeks leave to appeal against his conviction on the grounds that the judge was wrong to give the Crown leave to amend the indictment, that having done so he should have discharged the jury, and that if the trial was to proceed the judge should have directed that he be re-arraigned on the amended indictment.
16. The authorities digested in Archbold 2013, paragraphs 1-230 and 231 show that the word "defective" in s. 5(1) of the Indictments Act 1915 is to be given a liberal interpretation. It has been held to include, for example, the case where the indictment does not include as a defendant a person who might properly have been joined at the outset: see R v Ismail 92 Cr Ap R. 92. It has also been held to cover the case where a single count indictment alleging conspiracy to defraud was amended after the prosecution opening by the addition of further counts to cater for the possibility that more than one conspiracy existed: see R v Radley 58 Cr Ap R 394. In our view, if he considered it necessary or desirable to add a reference to other parties to the conspiracy in order to avoid prejudice to the applicant and his co-accused, the judge was entitled to hold that the indictment as it then stood was defective and to give leave for it to be amended. The only way in which it has been suggested that the amendment might have prejudiced the defendants was that it made it easier for the Crown to keep the trial on foot, but in reality that is no prejudice at all. Indeed, as the single judge noted when refusing leave to appeal on this ground, the amendment was to the defendants' advantage. This ground of appeal is not capable of serious argument. Nor, for similar reasons, do we think that it is arguable that the judge should have discharged the jury once leave to make the amendment had been given.
17. As to re-arraignment, although we invited counsel to explain how the judge's refusal to direct that the applicant be re-arraigned rendered his conviction unsafe, he was unable to do so and for our part we are quite unable to see how it could have had that effect. The amendment did no more than reflect the evidence in the case and was not of a substantial nature. It did not materially affect the case the defendants had to answer or their understanding of it. For practical purposes it would have caused less difficulty if the defendants had been re-arraigned, but that its as far as it goes. This is not an arguable ground of appeal.
18. Before the start of the summing up counsel for Hawthorne and Deganis submitted that the Judge ought to give an "accomplice" direction in relation to Ms. Tyrell, that is, he ought to warn the jury that she might for various reasons be an unreliable witness and that they should look for some independent support for what she said before relying on her evidence. After hearing argument the Judge ruled that an accomplice direction in the sense we have described it was not necessary, but said that he would remind the jury that she was a central pillar of the Crown's case and would draw their attention to the various reasons why her evidence might not be reliable.
19. In his summing up the judge reminded the jury that the prosecution case rested essentially on the evidence of Ms. Tyrell, who had been an accomplice to the burglary of 27 Fiery Road in August 2007. He also reminded the jury at some length about her medical and drug problems, her use of alcohol, her convictions for offences of dishonesty and the fact that she had lied to the police in certain respects. Finally, in order to assist the jury in evaluating her evidence he reminded them that the police had followed other lines of enquiry that might potentially support her allegations and that, when judging her truthfulness, accuracy and her reliability, they should consider carefully such other evidence before deciding whether to convict.
20. The purpose of drawing to the jury's attention factors that may render a witness's evidence unreliable is to assist them in deciding whether they can rely on it and if so how much weight they should give it. The nature of the assistance that they require will obviously vary from case to case and it is for the judge to decide in each case how much assistance the jury requires. In coming to that decision he may need to consider whether it is necessary to warn them to be cautious and whether he should go so far as to point out to them the desirability of finding independent supporting evidence before relying on what the witness says. That will not be necessary in every case.
21. In the present case the reasons for approaching Ms. Tyrell's evidence with caution were clear and were canvassed in the course of the trial. The judge decided that it was unnecessary to give a full "accomplice" direction, but he did draw the jury's attention in some detail to the various factors that might lead them to examine her evidence with care. He also invited them to consider her evidence in the context of the other evidence that had emerged from the police investigations before reaching their decision. In our view the judge's directions were sufficient to ensure that jury were well aware of all the factors that tended to undermine Ms. Tyrell's credibility. We do not think it arguable that the applicant's conviction was rendered unsafe by his failure to warn them in terms to look for corroboration before relying on her evidence to convict the defendants.
22. For these reasons Hawthorne's application for leave to appeal against conviction is dismissed.
23. We turn next to consider Jason Murray's appeal against sentence. When dealing with the other defendants the judge said:

"In summary, their [sc. the victims'] lives are permanently and adversely affected and I have decided that in each of your cases, because of the circumstances of the robberies forming this conspiracy, apart from what I have seen in particular cases as regards previous convictions and other matters, that each of you present such a significant risk to the public of serious harm from further offending that sentences of imprisonment for public protection are appropriate and I intend to pass them on the basis that you present that danger."

24. Specifically in relation to Jason Murray, who was sentenced on a later occasion, the judge added this:

"I'm not going to repeat my lengthy sentencing remarks when sentencing your co-defendants, but they apply equally to your case.

It is perfectly right that your previous convictions are not of anything like the seriousness of this conspiracy of which the jury convicted you. However, as I found in other defendant's cases, the circumstances of the conspiracy of which you were convicted are such that you do qualify; you are a dangerous offender, in that you do pose a significant risk to the public of serious harm from further offending. I'm afraid in your case as in other cases,  I'm afraid in your case, as in other cases, I'm quite satisfied that in my public duty I must pass a sentence of imprisonment for public protection and that is the sentence I pass.

Had I been passing  a determinate sentence I would have passed a sentence of 18 years. I'm required to halve that; that is the minimum term that you will serve . . . "

25. The appellant is now aged 30. The longest custodial sentence he had previously served was one of 28 days. He had never before been convicted of an offence involving significant violence. The author of the pre-sentence report prepared on him assessed him as presenting a high risk of causing serious harm to the public, but, significantly in our view, considered that risk likely to be reduced by a lengthy custodial sentence.  He suggested that a determinate sentence would be appropriate in his case.
26. The imposition of an indeterminate sentence is a very grave step. It always requires a subjective consideration of prospective risk and a detailed explanation of the reasons for imposing it. The judge should begin by considering whether the offender poses a significant risk of causing serious harm to members of the public by committing further specified offences. If he does, the judge should then consider whether an extended sentence, rather than an indeterminate sentence, is sufficient to manage that risk and should explain his reasons for his conclusion by reference to the specific circumstances of the case: see R v Rocha [2007] EWCA Crim 1505, R v J.W. [2009] EWCA Crim 390, [2009] 2 Cr App R (S) 94, R v M.J. [2012] EWCA Crim 132, [2012] 2 Cr App R (S) 73 and Archbold 2013, paragraph 5-512. These considerations apply with particular force in a case such as the present where the appellant does not have a long record of offending and the pre-sentence report does not suggest that an indeterminate sentence is necessary. Although the circumstances of the offences for which he is to be sentenced will often be a very important factor in assessing whether an offender is dangerous, each case calls for individual consideration. It cannot be said that particular kinds of offending automatically justify a finding of dangerousness and where the judge makes such a finding he has a duty to give reasons for it.
27. The offences committed by the appellant were undoubtedly very serious, but they were not themselves of the most violent kind, nor did he have a significant history of violence, and the judge did not explain in any detail why he found the appellant dangerous. In those circumstances, and in the light of the assessment made by the author of the pre-sentence report, we do not think there was sufficient basis for the judge's finding that the appellant was dangerous. It follows that in our view a determinate sentence was the proper form of disposal in this case.  Having said that, there is no doubt that the nature of this offence was such that a severe sentence was necessary; the Guidelines published by the Sentencing Council are of little assistance when dealing with a conspiracy to rob of this gravity. The minimum period of 9 years less the time served on remand specified by the judge is the equivalent of a determinate sentence of 18 years' imprisonment and in our view a sentence of that length is appropriate. We therefore quash the sentence of imprisonment for public protection and substitute a sentence of 18 years' imprisonment. The days spent in custody on remand will count against sentence pursuant to section 240 of the Criminal justice Act, 2003. To that extent the appeal is allowed.
28. We turn finally to the application of Clarke for leave to appeal against sentence and the necessary extension of time. This applicant is now 31 years of age and has 13 previous convictions for 20 offences. The most serious was a conviction at the Crown Court at Wolverhampton on 3^rd September 1998 for an offence of robbery committed on 26^th April 1998 when he would have been 16 years of age. For that offence he received a sentence of 18 months' detention in a young offender institution. His remaining convictions are in the main for drug offences for which he received non-custodial sentences.
29. There was a pre-sentence report before the sentencing judge in which it was explained that at the time of these offences the applicant was struggling financially as he had lost his job and that his only income was the carer's allowance which he received for being the full-time carer of his father.
30. The applicant maintained that he had no knowledge of the third robbery, despite the telephone evidence linking him to the co-defendants. Overall, he explained that he did not appreciate the enormity of what he had become involved in; he considered himself to have been a passive observer who had been ignorant of the seriousn nature of his involvement.
31. The author of the pre-sentence report assessed the applicant as posing a high risk of serious harm to the general public whilst in the community and he considered that this risk would be at its greatest when the applicant "associates with negative peers and is struggling financially". In reaching that conclusion, the writer of the report took account of the high emotional impact upon the victims of the offences in respect of which the applicant was a conspirator and the fact that the applicant demonstrated little awareness at the time of the consequences of his behaviour.
32. When sentencing the applicant the judge referred to the very serious features of the robbery which were aimed at carefully chosen and targeted premises as a result of which those involved were expecting to make substantial gain. The robberies comprised in the conspiracy were terrifying for the victims as they were physically assaulted, restrained and separately tied up in the security of their own homes. The victims all suffered serious psychological harm. It was noted that all three pairs of victims in the three houses had either moved house or where about to move house, since they could not face living in them any longer because of what the conspirators had done to them. The judge explained that the lives of the victims had been permanently and adversely affected by the conduct of the applicant and his co-conspirators.
33. As we have explained, the judge considered that in the light of the seriousness of the offences each of the conspirators presented such a significant risk to the public of serious harm from further offending that each of them was dangerous and that sentences of imprisonment for public protection were appropriate. He also noted that the applicant had a previous conviction for robbery.
34. The only ground of appeal is that a sentence of imprisonment for public protection was wrong in principle, especially as the judge neither identified the role played by the applicant nor considered whether he had himself used any violence.
35. We have not found this an easy case, but we are very concerned about the finding of dangerousness as the applicant's only previous conviction for an offence of violence was for a robbery committed as long ago as 1998 when he was only 16 years of age. Moreover, although the applicant by his plea admitted having been a party to the conspiracy, there is no evidence that he was actually present at any of the robberies or played any part in the use of violence. We are concerned that when sentencing the applicant the judge may well have considered the defendants as a group, assessing their dangerousness by reference to the nature of the robberies rather than considering them individually in their light of their different roles. It may well be that, if he had concentrated more closely on the part played by this applicant, he would have concluded, as we do, that there was insufficient evidence to justify a finding that he was dangerous. Accordingly, we extend time and grant the applicant leave to appeal.
36. We now turn to consider the appropriate determinate sentence. There is no challenge, nor can there be, to the judge's conclusion that, if he had passed a determinate sentence on the applicant for this serious offending, a period of 17 years' imprisonment would have been appropriate. We therefore quash the sentence of imprisonment for public protection and substitute a sentence of  17 years' imprisonment. The period of 515 days spent in custody on remand will count against sentence pursuant to section 240 of the Criminal justice Act 2003. To that extent the appeal is allowed.