England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		19th February 2016

1. MR JUSTICE DOVE: On 17th April 2015 the appellant was sentenced to a life sentence with a minimum term of 7 years for a sequence of offences which we shall shortly outline on a concurrent basis. He faced two indictments: the first indictment in time comprised some eight armed robberies in seven of which an imitation firearm was used. They occurred between 5th January 2014 and 29th April 2014. On seven occasions the premises that were targeted were bookmakers and on one occasion an off licence. The appellant's mode of operation was similar in all cases. He entered those premises on all bar the first occasion carrying his imitation firearm. He had his face covered and then demanded money and threatened staff who were present and who were, with one exception, female. Having administered the threats cash was then produced as a result of his demands and he made off with it.
2. The second indictment on which he was charged comprised some four offences. Count 1 on the indictment was an offence of robbery which was committed on 7th April 2014. On that occasion, with his co-accused, he attended the Lloyds TSB Bank. His co-accused on the indictment were his partner and her teenage son. The son entered the bank and asked about opening an account. He then left the bank following which the appellant entered it with his face covered carrying again the imitation firearm. The appellant demanded money and £1,000 in cash was handed over.
3. The second robbery on this indictment occurred on 21st April 2014. On that occasion the appellant visited the British Rail Northend Sports and Social Club. After he left the barman, who had been looking after the club on that evening, placed cash from the till in the club's safe. The barman then became aware of a very loud noise as two men, one of whom was the appellant, entered in helmets and masks. They ran into the premises, one armed with a gun and the other with a bottle of liquid which the barman believed was acid when it was sprayed over him. They demanded the contents of the safe and made customers give them their mobile phones by threatening them.
4. The third robbery on this indictment was committed on the 4th May 2014 at the Christ the King Social Club. Again, it was visited by the appellant and shortly after he left, two men, one of whom was him, came in wearing balaclavas or tights over their heads to disguise their appearances. One of the men was carrying a machete and the other the imitation firearm. They lined up the customers who were in the club and forced the bar staff to open the safe. As a result of that action they were able to obtain £4,500 and made off with it. On that indictment, therefore, there were three robberies together with a count of possession of an imitation firearm.
5. An extensive suite of impact statements were obtained in relation to those who had been effectively the direct victim of the appellant's offending, namely those who were serving in the various premises at the time when these offences were committed. It is unnecessary for us to recite those witness statements at length or to go through them individually. What is important for us to emphasise as a consequence of having absorbed that material is that it demonstrates some key and common features in relation to the impact that the appellant's offending had upon those people. Firstly, there was a serious and lasting psychological impact on those who were working in the premises at the time these offences were committed. Secondly, some of those people were effected to the extent that it was necessary for them to have medical treatment to assist them. Thirdly, some of the people who made statements simply could not return to work as a result of the psychological trauma that they suffered at the hands of the appellant. What is clear from all of those statements is that the appellant's offences had a devastating effect on the quality of life of those victims who were robbed of their confidence and their peace of mind as a result of his offending.
6. Faced with the indictments the appellant pleaded guilty to the eight counts of robbery on 31st March 2015. Prior to that he had pleaded guilty on 5th August 2014, to the first robbery on the second indictment and the offence of possession of an imitation firearm. The second and third robberies on the second indictment were pleaded to on the 17th October 2014. Thus, when he came before His Honour Judge Everett in the Liverpool Crown Court on 17th April 2015 he faced in aggregate 11 counts of robbery, all but one including an imitation weapon or firearm and eight counts of possession of an imitation firearm.
7. The judge concluded that the appropriate sentence on a determinate basis, after trial, was one of 21 years. He afforded credit for the fact that the appellant had pleaded guilty in excess of that which he would have been strictly entitled under the guidelines, on the basis that in respect of some of the robberies, he had made confessions to the police which meant that a substantial amount of police time had been saved in that there was no need to conduct extensive investigations. Thus, the judge concluded, giving credit for the appellant's plea, the appropriate determinate sentence would have been 14 years. However, he was persuaded, in the particular circumstances of the appellant's case, that the only disposable which was available was one of a life sentence, leading him to fix the minimum term in the period of 7 years.
8. In relation to this appeal Mr Dillon, who appears on behalf of the appellant, submits that the life sentence which was imposed in this case was wrong in principle and manifestly excessive. He accepts, in our view realistically, that the appellant satisfied the requirements of being found to be dangerous. He accepts that the court was entitled to be of the opinion that there is a significant risk to members of the public of serious harm being occasioned by the commission of the appellant of further specified offences. However, he goes on to submit that it would have been possible in this case and appropriate for the judge to have either dealt with the appellant by a determinate prison sentence or alternatively he could have addressed the merits of the offences by imposing an extended sentence. Furthermore, on behalf of the appellant, it is submitted by Mr Dillon, that the tariff which the judge identified of 21 years for the determinate sentence was itself manifestly excessive.
9. In assessing those submissions, attractively made as they were, it is necessary first and foremost to observe that not only was the concession in relation to the finding of dangerousness in relation to this appellant correct, on the basis of the offences that were before the court, he is a man who has previously been convicted of an offence of robbery which occurred in very similar circumstances, when he entered a shop with another, armed with a hammer and administered threats to the staff in the shop and obtained cash, for which he was sentenced to a prison term of 42 months. Thus, measured against both the offences with which he fell to be sentenced on this occasion and also his previous antecedent history it is beyond argument that this appellant satisfied the requirements of dangerousness.
10. Secondly, it is important to observe that the Sentencing Guidelines in relation to robbery, as the judge observed and as we would endorse, are of no help when dealing with a person who comes before the court for the extensive number and serious nature of the offences with which this appellant was charged.
11. Turning then to the question of the question of principle as to whether or not a life sentence would have been appropriate, it is important to bear in mind, as the judge did in his sentencing remarks, the importance in circumstances of this kind of the leading case of R v Burinskas [2014] EWCA Crim 334. In that case this court observed as follows in relation to the implications of the changes to the legislation removing the IPP sentence, and the approach which the court should take to considering whether or not a life sentence is appropriate:

i. "18. Save where imposed under s.224A, a life sentence remains a sentence of last resort. Where, as with IPP, there was an alternative indeterminate sentence short of that last resort, the courts could impose it. That is no longer the case. It is inevitable therefore that sentences of life imprisonment will be imposed more frequently than before the changes introduced by LASPO ...

ii. 22. In our judgment, taking into account the law prior to the coming into force of the CJA 2003 and the whole of the new statutory provisions, the question in s.225(2)(b) as to whether the seriousness of the offence (or of the offence and one or more offences associated with it) is such as to justify a life sentence requires consideration of:-

ii) The seriousness of the offence itself, on its own or with other offences associated with it in accordance with the provisions of s.143(1). This is always a matter for the judgment of the court.

iii) The defendant's previous convictions (in accordance with s.143(2)).

iv) The level of danger to the public posed by the defendant and whether there is a reliable estimate of the length of time he will remain a danger.

v) The available alternative sentences."

12. Thus it is clear that the imposition of a life sentence is, as this court observed, "a last resort". Whether or not in this case it is a last resort depends upon analysis of the mitigation which was available to this appellant measured against the finding of dangerousness, and serious dangerousness, which the judge rightly made in his case.
13. In truth there is limited mitigation which can be advanced by Mr Dillon on his behalf. True it is there was no actual injury and that the weapon which was used was an imitation. However, as the judge observed, having had the opportunity to view the gun at first hand, it was a heavy piece of equipment, which would have left those before whom it was brandished in no doubt that it was clearly a weapon and which was capable of being properly perceived as a real gun. Secondly, in relation to injury, as we have set out above, the victim impact statements set out at length the real serious, lasting psychological harm, which arose as a result of these offences, and which in some cases required clinical treatment.
14. Mr Dillon rightly observes that the appellant pleaded guilty, and indeed, as we have set out above, confessed to the some of these offences short circuiting the need for further police investigation. He submits, as he is entitled to, that that goes to the risk of future harm in his case.
15. All of that said, however, there are, in the perhaps unique and certainly exceptional circumstances of this case very serious aggravating features. First and foremost this was a sustained campaign of serious robberies conducted over a number of months in the form of no less than 11 very similar offences. Secondly, it is clear from the pattern of those offences that the appellant targeted vulnerable victims, in the form of those who were staffing the shops which were targeted, very often at night, in order to conduct his campaign of robbing. Thirdly, as we have already observed, these offences caused, to those who were the victims of them, lasting psychological harm. Fourthly, the previous convictions to which we have alluded adds an aggravating dimension to the sentencing exercise.
16. Having assessed carefully whether or not there was realistically and properly any alternatives to the life sentence which the judge passed, we are satisfied that he was entitled to conclude that it was the last resort in this case and that there was no error in principle in him identifying that there was no proper alternative which fitted the risks to the public, and indeed the gravity of the offences which were presented both by the appellant and his offences in this case. There could be no reliable estimate of the length of time the appellant would remain a danger to the public given the history of his offending. Furthermore we are satisfied in the light of the aggravating features we have identified above that 21 years was the appropriate determinate sentence in this case.
17. For those reasons we are satisfied that this appeal should be dismissed.
18. Having made the observations that we have in relation to the principle of the sentence, it has been drawn to the court's attention there is a period of 283 days on remand which was overlooked by the judge at the first instance. We are of the view the sentence should be corrected to the extent that those 283 days on remand should count towards the minimum term which was imposed as a consequence of the judge's order.