England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
MR. RECORDER J. BROMPTON QC
T20157338

		Royal Courts of Justice Strand, London, WC2A 2LL
		30/06/2016

LORD JUSTICE LLOYD JONES :

1. On 18 December 2015 in the Central Criminal Court David Kelly, Michael Lewis, Alan Kelly and Daryl Salisbury pleaded guilty to the offences on the first indictment set out below. On 8 January 2016 Charles Durkin pleaded guilty to one count of conspiracy to rob on the first indictment. On 11 March 2016 Lewis Sokhi, who was charged on a second indictment relating only to him, pleaded guilty to conspiracy to rob.
2. On 14 March 2016 the offenders were sentenced by Mr. Recorder Michael Brompton QC as follows:

(1) David Kelly. On Count 1, conspiracy to rob, David Kelly was sentenced to 30 months imprisonment. On Count 2, burglary, he was sentenced to 8 months imprisonment concurrent. On Count 3, burglary, he was sentenced to 8 months imprisonment concurrent. A total sentence in his case was 30 months imprisonment.

(2) Lewis Sokhi. On the second indictment for conspiracy to rob, Lewis Sokhi was sentenced to 40 months imprisonment.

(3) Michael Lewis. On a single count of conspiracy to rob, Michael Lewis was sentenced to 24 months imprisonment.

(4) Alan Kelly. On Count 1, conspiracy to rob, Alan Kelly was sentenced to 21 months imprisonment. On Count 2, burglary, he was sentenced to 6 months imprisonment concurrent. The total sentence in his case was 21 months imprisonment.

(5) Daryl Salisbury. On a single count of conspiracy to rob, Daryl Salisbury was sentenced to 28 months imprisonment.

(6) Charles Terry Durkin. On a single count of conspiracy to rob, Charles Durkin was sentenced to 40 months imprisonment.

3. In the case of David Kelly, Lewis, Alan Kelly and Salisbury, these sentences were ordered to be consecutive to terms of imprisonment which they were already serving.
4. HM Attorney General considers that the sentences passed in this case in respect of these six offenders were unduly lenient and that they are cases to which Part IV of the Criminal Justice Act 1988 applies. Accordingly he applies for permission to make a reference to the Court of Appeal. We grant leave.
5. There were two co-accused Sonny Alexander Colligan who pleaded guilty to conspiracy to rob and Lee Smith who pleaded guilty to conspiracy to rob and handling stolen goods. HM Attorney General does not seek to refer the sentences in their respective cases and their sentences are not relevant to the present reference.

The conspiracy to rob

6. Count 1 of the first indictment and the only count on the second indictment, concern the same conspiracy to rob, alleged against all offenders.
7. The offenders were part of an organised gang of cash-in-transit (CiT) robbers. Over a four month period between February and June 2014, 13 CiT robberies or attempted robberies were committed. The conspiracy realised approximately £110,500 of which £6,800 was recovered. The robberies were well planned and sophisticated. They were carried out by the pillion passenger on a stolen moped, or on a moped bearing stolen number plates. The moped passenger would "rush" the cash custodian and wrestle the cashbox from him, before making off on the moped. Those perpetrating the robbery itself would be shadowed by a support car.
8. No firearms, or other weapons were involved and no security guard was threatened, although guards were pushed and intimidated. On at least one occasion, a punch was aimed. No injury appears to have been caused to any custodian. Steps were taken to avoid detection such as the use of stolen number plates or mopeds. The faces of those carrying out the robbery were covered. In most cases the passenger carrying out the attack was wearing a motorcycle helmet.
9. Where cash that was realised during the robbery was stained with dye (designed to prevent the use of stolen currency), the offenders laundered the notes through automatic gambling machines, exchanging winning tokens for "clean" cash.
10. Although the offenders played different roles, the Crown's case was that it was difficult to place the offenders in a hierarchy, save that Colligan (who is not the subject of a reference) was placed at the "bottom" of the hierarchy, as he was not directly involved in the robberies themselves, his role being confined to assisting in identifying and stealing vehicles to be used in robberies and laundering the proceeds of robberies. In addition, although it is often possible to place an individual offender at the scene of a particular robbery, it is often not possible to say precisely what role that offender played, for example whether he physically took the cash box or was driving a moped.
11. On 14 February 2014 at 12:51 a CiT robbery took place on Muswell Hill Broadway in North London. Two offenders in dark clothing and crash helmets were travelling on a moped. One male grabbed a cash box from a security guard and got onto back of moped which was ridden away. £4260 was stolen. The offender Durkin was involved in this incident. Prior to the offending, Durkin contacted Sokhi, and cell site evidence showed him to have visited the area of Alan Kelly's home address.
12. On 22 March 2014 at 13:10 a CiT robbery took place in Sainsbury's supermarket, West Green Road, N15. A guard was pushed to the ground by a man wearing a motorcycle helmet, but managed to hold on to his cash box. Nothing was stolen. The offenders Durkin and Lewis participated in this attempted robbery.
13. On 25 March 2014 at 15:00 a CiT robbery took place at Tesco supermarket, Heath Street, Hampstead North London. A male in a motor cycle helmet pushed a security guard to the floor, causing him to drop the cash box he was carrying, before grabbing the box and making off on a stolen moped, ridden by a second male. £16,406.77 was stolen.
14. On 31 March 2014 at 15:16 a CiT robbery took place at the Washington Hotel in Englands Lane, Hampstead, North London. A male in a crash helmet ran at a security guard as he approached his van carrying a cash box. The guard was pushed in the chest and the box seized. The offender ran to a waiting moped bearing a stolen number plate, and escaped, the moped being driven by a second male. £6864 was stolen but recovered. David Kelly was involved in this robbery.
15. On 4 April 2014 at 12:15 a CiT robbery took place on Holloway Road, North London. A male in a motorcycle helmet ran at a security guard carrying a cash box and pushed him from behind causing him to fall and drop the box. The male grabbed the box and ran to a waiting moped which was ridden away by a second male. A Ford Focus, belonging to Lewis, was seen on CCTV to travel with the moped to the scene. Lewis accepted in his basis of plea lending his car to the robbers, knowing that it would be used in a robbery. Thereafter the moped with its pillion passenger carrying the box, and the Ford Focus travelled to a woodland in the Highgate area of North London. £5,735 was stolen. Salisbury and Alan Kelly were involved in the robbery.
16. On 10 April 2014 at 12:10 a CiT robbery took place at Natwest Bank, Amhurst Parade, N16. A stolen motorcycle with pillion passenger mounted the pavement and drove towards a security guard who was making his way with a cash box to the bank. The guard ran towards the bank but the pillion passenger jumped off and blocked his path. The pillion passenger aimed a punch at the guard which missed. A struggle ensued and the box was grabbed. The offender returned to the motorcycle which was ridden off. The pillion passenger was seen in a nearby street using an angle grinder on the cash box. £25,000 was stolen. Durkin was involved in the robbery.
17. On 16 April 2014 at 14:45 a CiT robbery took place in Hornsey Road, North London. A guard with a cash box was attacked from behind by a male in a hooded top, who knocked the guard to the ground and wrestled the cash box from him before running off. The male got on a moped ridden by a second male. A moped and the Ford Focus belonging to Lewis were captured on CCTV in convoy close to the scene. The cash box and contents were recovered from the grounds of a nearby cricket club shortly after the robbery, the two males having fled after an alarm went off. David Kelly, Salisbury, Sokhi and Lewis were all involved in the robbery, their presence in the area having been demonstrated by cell site evidence. David Kelly was the front passenger in Lewis's Ford Focus.
18. On 24 April 2014 at 12:35 an attempted CiT robbery took place at Junction Road N19. A guard was rushed by a male in a motorcycle helmet. The guard ran into the building to which he was delivering and blocked the door as the attacker tried to force his way in, before running off and escaping on a stolen moped as a pillion passenger. Salisbury's telephone was using cell sites in the area of the incident at the relevant time.
19. On 25 April 2014 at 00:38 David Kelly was a passenger in a BMW vehicle which used a Shell petrol station to obtain petrol. £70 of dyed notes were used for payment.
20. On 25 April 2014 at 10:38 a CiT robbery took place at Heathway, Dagenham. As a guard was placing a cash box in his security van, a male in a balaclava grabbed it. After a struggle, the guard let go of the box and the offender and one other ran to a nearby BMW, driven by a third male which then drove off. The BMW was in convoy with Lewis's Ford Focus, close to the security van shortly before the robbery. Lewis accepted in his basis of plea that he had been responsible for lending his car to the robbers, knowing that it would be used in a robbery. When Lewis was arrested he was in possession of a bank note from this robbery. £25,000 was stolen. Alan Kelly was also present and involved in the robbery.
21. On 8 May 2014 at 01:25 a CiT robbery took place at Santander, Holloway Road, North London. As a security guard was making a delivery, a BMW estate pulled up alongside the security van, and a black male got out and pushed the guard causing him to drop the cash box. The robber grabbed the box and got back into the BMW which then drove away. £16,000 was stolen. Lewis was found to be possession of bank notes from robbery when arrested. His Ford Focus seat covering bore dye from this cash box. Both Lewis and Salisbury were involved in this robbery.
22. On 15 May 2014 at 12:05 a CiT robbery took place at High Road, Finchley, North London. As a guard took a cash box to the post office, a moped mounted the pavement and the pillion passenger pushed the guard. A scuffle ensued during which the guard dropped the box which was grabbed. The robber got back on the moped which was ridden away. A black male was seen giving a running commentary on his phone before walking away after the robbery. Shortly afterwards, a BMW being driven by Salisbury and bearing stolen number plates crashed whilst heading towards Muswell Hill. Two males got out with a cash box on which they jumped until it burst open. They grabbed the contents and made off. £22,000 was stolen. Salisbury, Sokhi (as the rider of the moped and lookout) and Alan Kelly were involved in the robbery.
23. On 2 June 2014 at 15:32, an attempted CiT robbery took place at North Road, Highgate North London. A guard was ambushed by a male wearing a crash helmet as he walked to his security van carrying a cash box containing £14,000. The guard fought off the attacker who made two attempts to grab the box before getting on the back of a moped which was ridden away. A Mazda was driven past the scene at the time of the offence. Alan Kelly, David Kelly, and Sokhi were all involved in the incident.
24. On 5 June 2016 the group moved a Mazda and Porsche used in the robberies to Bournemouth. On 6 June 2014 Lewis, Sokhi, David Kelly, Alan Kelly and Salisbury were all seen following and observing CiT vehicles and deliveries.
25. On 13 June 2014 at 10:00 an attempted CiT robbery took place in Bournemouth. As a security guard made his delivery to a bank, he noticed a black male in a crash helmet standing outside the bank. The male went towards the guard who, realising he was about to be robbed, ran into the bank and raised the alarm. The male escaped on the back of a moped. CCTV captured the Mazda drive past the security van shortly before the offence. Salisbury and David Kelly were involved in this offence.
26. In addition to the robberies and attempted robberies identified above, the offenders Durkin, Alan Kelly, David Kelly, Salisbury and Lewis, were identified as having been involved in the laundering of dyed cash through automated gambling machines at bookmakers.
27. Cell site evidence also linked the offender Sokhi to the theft of a vehicle subsequently used in a robbery.

The burglary counts

28. Count 2 of the first indictment to which David Kelly pleaded guilty arose in this way. On 16 June 2014 at 02:30 David Kelly and another drove in the Mazda which had been used for the CiT robberies and a Porsche to HSBC Private Bank, St. James' Street, SW1. David Kelly forced the doors in the loading bay and stole around £3000 worth of computer equipment which he loaded into the Porsche and then drove off.
29. Count 3 of the first indictment to which David Kelly and Alan Kelly pleaded guilty, arose in this way. On 18 June 2014 at 01:30 David Kelly and Alan Kelly with another person committed a commercial burglary at a Co-operative store in London WC1. The two men drove to the store in a Porsche and on a moped with a pillion passenger. The driver of the Porsche and the two men on the moped smashed the store's glass doors before entering and rifling the tobacco cabinets and stealing £2846 worth of products.

Antecedents

30. David Kelly, now 31, had been convicted on 26 occasions of 47 offences, including robbery, non-dwelling burglary, aggravated vehicle taking and conspiracy to burgle. On 22 January 2015 he was convicted of conspiracy to burgle (non-dwelling) and sentenced to 7 years imprisonment.
31. Alan Kelly, now 22, had been convicted previously on 7 occasions of 13 offences including robbery, dangerous driving and burglary of a non-dwelling. On 22 January 2015 Alan Kelly was convicted of conspiracy to burgle (non-dwelling) and sentenced to 42 months in a Young Offenders' Institution, which sentence was subsequently reduced by the Court of Appeal to 3 years detention.
32. Durkin, now 26, had been convicted on 12 occasions of 28 offences including aggravated vehicle taking, driving whilst disqualified, conspiracy to rob and possession of criminal property. On 2 February 2011, Durkin was convicted of robbery and sentenced to 8 years imprisonment. The facts of this offending were that Durkin was one of six offenders who participated in the robbery of a jeweller's shop by using sledge hammers to gain entry to the premises and to threaten staff and members of the public.
33. Salisbury, now 26, had been convicted on 6 occasions of 17 offences including aggravated vehicle taking and wounding with intent to do grievous bodily harm. On 25 August 2011 Salisbury was convicted of one count of attempted robbery and two counts of robbery and sentenced to a total sentence of 5 years imprisonment. One of the attempted robberies concerned a cash in transit van. This detail was not before the judge. On 22 January 2015 Salisbury was sentenced for possession of cannabis with intent to supply and conspiracy to burgle (non-dwelling) to a total of 72 months imprisonment of which 56 months related to the conspiracy to burgle.
34. Sokhi, now 22, had been convicted on 6 occasions of 12 offences including burglary (dwelling), theft of motor vehicle and theft (shoplifting).
35. Lewis, now 30, had been convicted on 8 occasions of 12 offences including burglary (dwelling), taking a conveyance without authority, robbery and conspiracy to burgle. On 22 January 2015 Lewis was convicted of conspiracy to burgle and sentenced to 6 years imprisonment.
36. On this reference, we will not take account of the details of the conviction referred to above in the case of Salisbury which was not before the sentencing judge, for the purpose of deciding whether the sentences passed in his case was unduly lenient. However, if we do come to that conclusion we will take those details into account in determining the appropriate sentence.
37. At the date of the sentencing hearing, David Kelly, Salisbury, Alan Kelly and Lewis were serving custodial sentences for sentences imposed for an offence of conspiracy to burgle imposed in January 2015. The factual background to that offending was that at approximately 01:25 on 26 June 2014 the offenders participated in a smash and grab raid at a Louis Vuitton shop at Sloan Street, West London, in which a moped was used to smash the shop door, and stock to an approximate value of £70,000 was taken. David Kelly and Lewis were convicted after trial. Salisbury had pleaded guilty at his preliminary hearing and Alan Kelly at his plea and case management hearing. The offending was committed after the offending to which this reference relates.
38. At the time of the offending with which this reference is concerned David Kelly was on licence for an offence of conspiracy to burgle for which he was sentenced on 6 April 2011. The facts underlying that offence were that he was one of a gang of offenders who used sledgehammers to smash their way into De Beers Jewellers in London EC3V. Alan Kelly was, at the start of the cash in transit conspiracy period, at the end of a period on licence from a sentence of 16 months detention imposed in January 2013 for burglary and theft.
39. Salisbury was, during the time of the offending with which we are concerned, on licence from a sentence of 5 years imprisonment imposed on 25 January 2011 at Wood Green Crown Court for offences of robbery and attempted robbery.
40. Durkin was during the period of time for which he accepted culpability, on day release from a prison sentence of 8 years imposed in respect of a conspiracy to rob in 2011.

Sentencing Remarks

41. In sentencing these offenders Mr. Recorder Michael Brompton QC referred to the general features of the conspiracy to rob. Over a period of 4 months there were 13 robberies or attempted robberies mostly in North London. Working in small groups the offenders would swoop down on the cash custodian and attempt to wrestle the cash box from him. Typically they would arrive on a moped, frequently two on one moped with a support car close by. The attackers would typically wear crash helmets and sometimes balaclavas. Having grasped the box they would race off in the vehicle or vehicles if successful. These attacks occurred in daylight on London streets. The last occurred in Bournemouth to which it appeared they had decided to move their activities. There was plainly a high degree of intimidation and physical force in these offences, running at the victim, wrestling, pushing and shoving. On one occasion a punch was thrown, albeit that it was launched by a custodian. However, he accepted that they did not use or carry weapons and when on a number of occasions the custodian put up determined resistance they withdrew. Their principal weapon was the shock tactic of sudden ambush. So far as the judge was aware no injury was inflicted other than perhaps trifling injury.
42. The judge considered that a very high degree of planning and co-ordination was involved. There were scoping expeditions, reconnaissance, the use of stolen vehicles and the use of number plates stolen in order to conceal the identity of the vehicles they were using. A particular technique used to launder dye-stained notes was to place bets on gaming machines, feed in the stolen banknotes, cancel the bet and obtain from the machine untainted notes in exchange. In all they got away with just over £110,000 of which only £6,800 had been recovered.
43. The judge considered that the robberies and attempted robberies to which the conspiracy to rob related were within the category of professionally planned commercial robberies addressed in Part 2 of the definitive sentencing guideline issued in 2006. That guideline does not specify a sentencing range for such robberies but refers to the Court of Appeal authorities.
44. The judge considered that the following aggravating features were present indicating higher culpability. There was a considerable element of planning, demonstrated by the number of offences, the theft of vehicles, vehicle number plates to be used in the substantive offences, the reconnaissance carried out in advance. The offenders operated as a group. They committed a very considerable number of offences. There was a high level of profit. Furthermore, the offenders all had poor records; most had dreadful records which included in most cases offences of robbery. They had failed to respond to earlier sentences. In the case of Durkin his involvement in the conspiracy took place while he was on day release from prison where he was serving a term of 8 years imprisonment for robbery.
45. So far as harm was concerned, the offences were committed against those providing a service as part of their jobs, the offences were committed in public and the victims were particularly vulnerable insofar as cash custodians are easy targets for robbers.
46. The judge accepted the presence of mitigating factors in that no firearms or other weapons were used or used to threaten. Furthermore no substantial injuries were inflicted. The offenders had all pleaded guilty at the plea and case management hearing, many of them having indicated that intention at the preliminary hearing.
47. In the judge's view the appropriate bracket of sentences for the conspiracy to rob was 4 to 7 years imprisonment, subject to the role of the particular defendant, to antecedent history and to personal mitigation.
48. David Kelly was 31 years of age, the oldest of the defendants. He had convictions for 47 separate offences, 18 of which were for offences of dishonesty. He was released on licence on 28 February 2014 in respect of a sentence for conspiracy to burgle non-dwellings and thereafter joined this conspiracy. In January 2015 he had been sentenced to 7 years' imprisonment for conspiracy to burgle (Louis Vuitton burglary), the present matters pre-dating that conviction. So far as the conspiracy to rob was concerned, he came at the top end of the bracket which the judge had indicated. But for the sentence he was already serving the judge would have imposed a sentence of 7 years' imprisonment before discount for plea which would have been one-third. For each of the two burglary offences he would have imposed sentences of 12 months imprisonment before discount for plea. However the judge was bound to consider the overall sentence that he would have received in January 2015 had he also been sentenced on that occasion for the offences which were currently before the court. In the judge's view, he would have received a total sentence of approximately 9½ years imprisonment. Accordingly on count 1 the sentence was one of 30 months imprisonment consequent to the sentence that he was already serving. On both count 2 and count 3 the sentence was one of 8 months imprisonment, each concurrent to the other and to the sentence on count 1.
49. Durkin had previous convictions for 28 separate offences between 2004 and 2011, 3 of which were for offences of dishonesty and of those 1 was for conspiracy to rob in 2008 and the last for robbery in February 2011 for which he received a sentence of 8 years custody, relating to a smash and grab raid of a jewellers. His active involvement in the present conspiracy to rob had been when he was on day release from open prison where he was serving that 2011 sentence. This was a severely aggravating feature of his conduct. Durkin's involvement in this conspiracy was as a result, necessarily short. It ended on 10 April 2014. His direct involvement between 7 February and 10 April 2014 was limited to 3 occasions. In his case the sentence was one of 3 years and 4 months imprisonment.
50. Daryl Salisbury, now aged 26, had 17 previous convictions, 7 of which were for offences of dishonesty, 3 of which were for robbery or attempted robbery, 1 of which related to cash in transit. His last conviction was on 22 January 2015 for the offence of conspiracy to burgle for which he was sentenced to 56 months imprisonment. That offence was committed on 22 June 2014 within, but in the final days of this conspiracy and was committed with David Kelly, Alan Kelly and Michael Lewis. So far as the conspiracy to rob was concerned he had accepted that he was involved with five robberies between 4 April and 13 June. His role was as one of the people in the support vehicles. On 13 June he was in Bournemouth to scope out a future robbery. But for the relationship of the current offence with the sentence which he was already serving the judge would have passed a sentence for the current offence of 6 years 6 months imprisonment before discount for plea which would have been 25 percent. However, he had to consider the overall sentence that he would have received in January 2015 had he also been sentenced on that occasion for the offences which are the subject of the current indictment. In his view, instead of receiving a sentence of 56 months imprisonment he would have received a sentence of approximately 7 years imprisonment. Accordingly he passed a sentence of 2 years and 4 months imprisonment consecutive to the sentence he was already serving.
51. Alan Kelly was 20 at the time of the offences, the youngest of the gang. He had previous convictions for 16 offences 7 of which were offences of dishonesty, 2 of those for robbery when he was aged 16. He too had been convicted for the burglary on 22 January 2015 for which he had been sentenced, on a plea of guilty, as varied on appeal, to a term of 3 years imprisonment. He had been heavily involved in the conspiracy to rob in various roles including but not confined to the laundering activity. He also fell to be sentenced on Count 3, that is the offence of burglary. But for the relationship to the sentence he was already serving the judge would have sentenced him to a term of 4 and a half years on Count 1 and a term of 9 months concurrent on Count 3, before discount for plea which would have been one third. However, the judge now had to consider the overall sentence he would have received in January 2015 had he been sentenced on that occasion for the offences which are the subject of the indictment. In the judge's view he would have received a total sentence of approximately 5 years imprisonment. In the circumstances the sentence on Count 1, conspiracy to rob, was one of 21 months imprisonment consecutive to the sentence already being served. On Count 3 the sentence was one of 6 months imprisonment concurrent to the sentence on Count 1.
52. Michael Lewis was now aged 30. He had convictions for 12 offences, 7 of which were for dishonesty and 1 of which was for robbery for which he was sentenced to 5 years imprisonment in 2008. He too had been convicted in January 2015 of the burglary offence for which he was sentenced to 6 years imprisonment after a trial. So far as the conspiracy to rob was concerned he had been a prominent member of the gang and was involved from an early stage. But for the relationship with the sentence he was already serving, the judge would have passed a sentence of 7 years imprisonment before discount for plea. However the judge had to consider the overall sentence he would have received in January 2015 had he also been sentenced on that occasion for the offences which are the subject of the current indictment. In the judge's view he would have received an overall sentence of approximately 8 years imprisonment. Accordingly he passed a sentence of 24 months imprisonment consecutive to the sentence he was already serving.
53. Lewis Sokhi, now 22, was only just 21 at the time of the conspiracy. Nevertheless he had previous convictions for 12 separate offences, 8 of which were for offences of dishonesty but none for robberies. His most recent conviction was in October 2010. Although he was not one of the most prominent members of the conspiracy to rob, he appeared to have performed various roles in the course of the conspiracy. The appropriate sentence in his case before discount for plea was one of 5 years. The sentence passed was therefore for one of 3 years 4 months imprisonment.

Submissions on behalf of the Attorney General.

54. On behalf of the Attorney General Mr. Joel Smith submits that the following aggravating factors were present

(1) The conspiracy was well planned, the targets of the robberies were researched and "scoped". The robbers were supported by moped drivers and support vehicles. They were "professional" robberies.

(2) The conspiracy involved sophisticated attempts to hide the offenders' identities. The face of the robber was covered. Stolen vehicles, or vehicles bearing stolen registration plates were sourced for the robberies.

(3) The conspiracy involved 13 robberies or attempted robberies over a four month period, with multiple victims.

(4) The judge concluded that the offending involved a high amount of intimidation and force.

(5) The robberies involved a number of offenders, acting in groups.

(6) The offenders Durkin, Alan Kelly, David Kelly, Salisbury and Lewis were also involved in laundering the proceeds of the robberies.

(7) Very little of the stolen money was recovered.

(8) The offenders David Kelly, Alan Kelly, Durkin, and Lewis all have previous convictions for robbery. All offenders have numerous previous convictions and have served or are serving sentences of imprisonment.

(9) At the time of the offending David Kelly and Salisbury were on licence.

(10) Durkin was on day release from prison, from a sentence imposed for conspiracy to rob, when participating in this conspiracy to rob.

(11) The burglaries caused significant damage.

55. Mr. Smith further submits that the following mitigating factors were present:

(1) Each offender tendered a basis of plea, accepted by the Crown, seeking to minimise the number of incidents in which he was directly involved.

(2) Alan Kelly and Lewis Sokhi are both 22 years old. Alan Kelly was 20 years old at the time of the offending, Sokhi was 21.

(3) No weapons were carried.

(4) No serious violence was used.

(5) No injuries of any gravity were caused.

56. It is submitted on behalf of the Attorney General that the sentences imposed were unduly lenient and failed to take proper account of the nature of the offences of which the offenders have been convicted and the aggravating features of the case. In particular:

(1) The sentencing range adopted by the learned Judge in relation to conspiracy to rob failed properly to reflect the gravity of offending as set out in the definitive guideline relating to 'Robbery', and relevant authority.

(2) The sentences imposed on the offenders failed adequately to reflect the particular aggravating feature of their offending history.

(3) By reference to the Sentencing Guidelines Council Guideline on Totality the Judge failed to pass sentences which adequately reflected all conduct under consideration;

(4) As a consequence each sentence as a whole was unduly lenient.

Submissions on behalf of the offenders.

57. On behalf of the offenders, their counsel have submitted that the judge took an appropriate range of sentences as his starting point and that, in the cases where issues of totality arose, the provision made for totality was entirely appropriate. In particular, a number of them sought to rely on the decision of this court in R v Yarboi [2009] EWCA Crim 2760; [2010] 2 Cr App R (S) 40 in support of the contention that activities such as those with which we are here concerned may be considered as falling within the category of a less sophisticated commercial robbery within Part 1 of the 2006 guidelines on robbery.

Discussion.

58. The Definitive Guideline on Robbery recently published by the Sentencing Council has no application to this case because the offenders were sentenced before 1 April 2016.
59. The previous guideline, published in 2006, distinguished between less sophisticated commercial robberies and professionally planned commercial robberies. The guideline declined to give any guidance in respect of the latter category. We have come to the clear view that the extent, the degree of sophistication and the degree of planning of these robberies and attempted robberies are such that this case clearly falls into the latter category. Accordingly, it is necessary to refer to refer to authorities in order to find the appropriate range of sentences for such offences.
60. In Attorney General's Reference No. 13 of 2012 (R v Anouar Bouhaddou) [2012] EWCA Crim 1066 this court was concerned with a conspiracy to rob which involved one instance of surveillance of cash in transit security vehicles, a second incident of surveillance of cash in transit security vehicles which involved preparation for a robbery before the security vehicle moved off, and a single incident of robbery in which one security guard was pushed to the ground and a second guard was rushed by a second robber into a secure area and forced to remove cash cassettes from cash machines, before the robbers made of with £66,000. The Court of Appeal drew attention to the distinction drawn by the Sentencing Guidelines Council's definitive guideline on robbery published in July 2006 between less sophisticated commercial robberies and professionally planned commercial robberies. This court was clearly of the view that the prosecutor was wrong in that case to invite the recorder to sentence on the basis that it fell within the category of less sophisticated commercial robberies. The facts of the conspiracy plus the laundering of stained bank notes showed that these were professionally planned commercial operations. As a result the maximum sentence and the sentencing range would be higher than the seven years referred to in the guideline. The court also referred to Yarboi in which the court reached the conclusion that a sentence of four and a half years detention in respect of a single cash in transit robbery was an appropriate sentence. The court in Attorney General's Reference No. 13 of 2012 did not find that case helpful in the light of its categorisation of the offences as professionally planned commercial robberies. The Court of Appeal expressed the view that in Attorney General's Reference No. 13 of 2012 the sentences should have been at least 8 years imprisonment before reduction for pleas of guilty.
61. In the present case the judge took as his starting range for the conspiracy to rob a range of 4 to 7 years imprisonment. We consider that this range is too low having regard to the number of robberies, their professional nature and the degree of sophistication in their planning and execution and in the laundering of the stained notes. In particular, the conspiracy in the present case involved a total of 13 robberies or attempted robberies and was therefore considerably more serious than that in Attorney General's Reference No 13 of 2012 where this court considered that the conspiracy should have attracted a starting point of at least 8 years imprisonment.
62. In our view the starting point for sentencing these offenders in respect of their participation in this conspiracy to rob should be in the range of 6 to 11 years imprisonment, depending on the nature and extent of their involvement and their antecedents.
63. In the cases of David Kelly, Salisbury, Alan Kelly and Lewis, the judge was faced with four offenders who were already serving substantial sentences imposed in respect of a further offence committed after the offence for which he was sentencing. He approached the matter correctly in accordance with the Sentencing Council guideline on Totality by asking himself what would have been the appropriate sentence had each of the offenders been dealt with on the earlier occasion for the totality of the offending and by seeking to adjust the appropriate sentence accordingly. However, in our view he erred in making too great an allowance for totality. Accordingly, we will make in each case what we consider to be a just and proportionate adjustment for totality.
64. For these reasons we consider that the sentences imposed are unduly lenient.

David Kelly.

65. David Kelly was a serving prisoner in custody until 28 February 2014. On his basis of plea, he became involved in the conspiracy at the end of March 2014 some six weeks after the earliest offence of robbery and only four weeks after his release from prison. He accepted that he participated in four robberies or attempted robberies as a look-out. He also accepted that he was present in reconnaissance on other occasions and that he was present when money was laundered. Furthermore, his part in this conspiracy to rob took place when he was on licence. The judge correctly considered that David Kelly came at the top end of the bracket of appropriate sentences for the participants in this conspiracy to rob. At 31 he was the oldest of the offenders.
66. He has a very bad criminal record. His convictions include a conspiracy to burgle dwellings in 2007 for which he was sentenced to four and a half years imprisonment, and conspiracy to burgle (non-dwellings) in 2011 for which he was sentenced to 5 years 9 months.
67. In our view the starting point in his case for the conspiracy to rob (taking into account the two burglaries) would be 10 years imprisonment. This should be reduced by one third for the guilty plea leading to a term of 6 years 8 months. David Kelly is already serving a 7 year term of imprisonment for the Louis Vuitton conspiracy to burgle. Further adjustment has to be made for totality. In our view the sentence for conspiracy to rob should be reduced further to 4 years imprisonment consecutive to the earlier sentence resulting in a total sentence of 11 years imprisonment.

Charles Durkin.

68. Durkin has admitted his involvement in the events which took place up to but not beyond 10 April 2014. Furthermore he accepts that on the 10 April 2014 he was present at two branches of Ladbrokes where money stolen in a cash in transit robbery earlier that day was used in gaming machines to launder the notes.
69. Durkin has a bad record. In particular on 2 February 2011 he was convicted of robbery and sentenced to 8 years imprisonment. The current offending took place while he was on day release from prison.
70. We consider that the starting point for his participation in the conspiracy to rob should be 8 years 6 months imprisonment. This will be reduced by one third for his guilty plea resulting in a term of 5 years 8 months imprisonment.

Daryl Salisbury.

71. Daryl Salisbury accepts that he participated in five robberies or attempted robberies and that he was present on 13 June 2016 at Bournemouth to scope-out a future robbery.
72. He has a very bad record. In particular on 25 August 2011 Salisbury was convicted of one count of attempted robbery and two counts of robbery resulting in a total sentence of 5 years imprisonment. He was on licence in respect of these sentences when the present offences were committed.
73. We consider that the starting point for Salisbury's role in this conspiracy to rob should be 8 years imprisonment. That has to be reduced by 25% for his guilty plea, not at the first reasonable opportunity, which gives a term of 6 years imprisonment. Salisbury is already serving a term of 4 years 8 months imprisonment in respect of the Louis Vuitton conspiracy to burgle and a consecutive term of 16 months in respect of an offence of possession of Class B drugs (cannabis) with intent to supply. Accordingly he is already serving a total term of 6 years imprisonment. Further adjustment for totality will reduce the term of 6 years to 3 years 4 months imprisonment consecutive to the earlier sentence resulting in a total sentence of 9 years 4 months imprisonment.

Alan Kelly.

74. Alan Kelly pleaded guilty to conspiracy to rob on the basis that he took part in four robberies or attempted robberies and that he assisted in laundering money on four occasions. He was therefore heavily involved in this offending.
75. He has a bad record of previous convictions although he was younger than the other participants. He was on licence at the time of the commission of these offences.
76. The starting point for Alan Kelly's participation in this conspiracy to rob (also taking account of his involvement in one burglary) should be 7 years and 6 months imprisonment. This has to be reduced by one third for his guilty plea resulting in a term of 5 years imprisonment. Alan Kelly is already serving a term of 3 years imprisonment for the Louis Vuitton conspiracy to burgle. Further adjustment has to be made for totality. In our view the sentence for conspiracy to rob should be reduced to 3 years imprisonment consecutive to the earlier sentence resulting in a total sentence of 6 years imprisonment.

Michael Lewis.

77. Lewis accepted that he took part in three robberies or attempted robberies and lent his car for use on two other robberies or attempted robberies. He also accepted that he was involved in laundering the proceeds of three robberies.
78. He has a very bad record including a sentence of 5 years imprisonment imposed in 2008 for robbery following a plea of guilty. He was not on licence at the time of the commission of the current offences.
79. The starting point for Lewis's participation in the conspiracy to rob in our view should be 8 years. This has to be reduced by one third for his guilty plea to a term of 5 years 4 months imprisonment. Lewis is already serving 6 years imprisonment for his part in the Louis Vuitton conspiracy to burgle. Further adjustment has to be made for totality. In our view his sentence for the conspiracy to rob should be reduced to 3 years consecutive to the earlier sentence resulting in a total sentence of 9 years imprisonment.

Lewis Sokhi.

80. Sokhi admitted his involvement in two robberies and one attempted robbery. He also admitted stealing a vehicle which was later used in the conspiracy to rob. He also admitted going to Bournemouth in early June on one occasion and carrying out some reconnaissance for further robberies on that one day. The judge found that he was not one of the most prominent members of this conspiracy.
81. Sokhi has a poor record but significantly less serious than that of the other offenders. He was not on licence or bail or subject to any community order at the time of this conspiracy to rob.
82. We consider that the starting point for his involvement in the conspiracy to rob should be a term of 6½ years imprisonment. This must be reduced by one third in respect of his plea of guilty resulting in a term of 4 years 4 months imprisonment.

Conclusion.

83. Accordingly, we allow this reference by HM Attorney General to the extent indicated above. In each case the custodial term will be quashed and the increased term indicated above substituted.