England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		9 October 2018

WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.

LORD JUSTICE SIMON:

1. On 4th July 2017, in the Crown Court at Manchester, the applicant (aged 24) pleaded guilty upon rearraignment to an offence of robbery. On 19th January 2018 he was sentenced by Mr Recorder Shaw to a term of five years and four months' imprisonment.
2. A co-defendant, a man named Romeo Higgins, also pleaded guilty to the robbery. He was given a lesser sentence of four years and two months' imprisonment for reasons to which we will come.
3. Leave to appeal that sentence has been referred to the full court by the single judge and we grant leave.
4. On 6th May 2016 the victim of the robbery, David Mason, travelled from his home in Teesside to Manchester with his friend Tariq Latiff. The two men had gone to watch a boxing match at the Manchester Arena. After the match, Mason and Latiff went to a number of public houses and then to a casino in the city centre, before going to a McDonalds on Oxford Road at about 5 am on 7th May.
5. CCTV footage from outside the McDonalds showed the appellant, accompanied by Higgins, engaging in conversation with Mason and Latiff. According to the prosecution evidence, the appellant asked Latiff if he needed a lift and Latiff handed him £40 in casino chips, on the understanding that he and Mason would get a lift back to their hotel.
6. Latiff and Mason sat in the rear of a Vauxhall car driven by Higgins with the applicant sitting in the front passenger seat. Instead of taking the men to the hotel, Higgins drove the car to some playing fields in the Stretford area of the city. He stopped the car and turned towards Mason in the back and demanded he hand over his Rolex watch. This was a valuable item, which he had purchased for some £6,700.
7. Mason stated that Higgins threatened him with a knife. Higgins pleaded guilty on the basis that he had taken part in the robbery but denied that he or anyone else was armed with a knife. He said that Latiff and Mason were both intoxicated and may have mistakenly believed he had a knife in his hand, although he accepted that he had said, "Get out of the car or I will stab you". That basis of plea was accepted by the Crown. The appellant pleaded guilty on the basis that, while he knew a robbery would take place, he did not know that any threat would be made to produce a weapon. In the event Mason handed the Rolex to Higgins, and he and Latiff were told to get out of the car. Higgins then drove the appellant away, leaving Latiff and Mason stranded. The appellant accepted that his presence assisted in the commission of the offence.
8. Latiff and Mason made their way to the nearest houses to ask for help, and the police were called at around 6.40 am. Latiff was able to remember part of the licence plate of the car that Higgins had driven. This, together with the CCTV footage from outside McDonalds, led to Higgins being identified and arrested on 8th May 2016. He gave no comment answers when questioned in interview. The appellant was arrested on 17th October 2016. He too gave no comment answers in interview. The Rolex watch was never recovered.
9. There was a written basis of plea put forward by the appellant, to which we will refer later in this judgment.
10. He was 23 at the date of sentence and had 28 convictions between February 2005 and June 2016. These included offences of possession of a bladed article on school premises in 2005; criminal damage, also in 2005; offences of robbery - two in 2006 and further offences in 2008 and 2009; two offences of attempted robbery in 2009; aggravated vehicle taking in 2005 and 2009; three offences of battery - one in 2006 and two in 2008; three offences of theft in 2006, 2008 and 2009; an offence of disorderly behaviour likely to cause harassment, alarm or distress in 2007; handling stolen goods in 2009 and 2012; witness intimidation in 2010; assault of a person accredited in the execution of a duty in 2011; dwelling burglary in 2012; a theft of a vehicle, also in 2012; and non-dwelling burglary in 2013. His initial crimes had been dealt with by a succession of supervision orders, which seemed to have had no effect on his offending. He received his first custodial sentence in October 2009, when he was given a six-month detention and training order.
11. A pre-sentence report observed that he demonstrated little remorse or victim empathy during interview. He had been intoxicated at the time of the offence and his offending was considered to be part of an established criminal lifestyle. Unsurprisingly, he was assessed as posing a high risk of reoffending and a high risk of causing serious harm to the public. His lack of remorse, his established criminal lifestyle and continued association with other criminals was a matter of concern.
12. A victim statement made by Mr Mason spoke of his shock at what had happened:

I'm a grown man and this has brought me to tears and made my physically shake with fear.

13. In passing sentence, the Recorder found that the crime committed by the appellant and Higgins (who also faced sentence for two additional unrelated matters) was so serious that only a sentence of immediate custody could follow. The robbery had been planned and was carried out under the threat of being stabbed with a knife. The appellant and Higgins had targeted two men who had been enjoying Manchester's entertainment scene. They had chosen to strike in the early morning. There had been a nasty element of deception as they had gained the men's trust and offered them a lift. They knew that they were visitors and had targeted them as such. In the court's judgment, Higgins held his car keys in his hand to pretend that he was in possession of a knife. Whether or not he had a knife, it was Higgins' intention to make David Mason believe that he had. The court was in no doubt that at some point earlier that evening the appellant and Higgins must have seen Mason wearing his expensive watch and settled on a plan to rob him. The court was satisfied that they must have had some idea of its value. The court had read David Mason's victim personal statement. It was clear that he had suffered more than minimal psychological harm. Whether the appellant knew Higgins was going to make that exact threat, he must have realised that a threat of some sort might be made. It had been a joint enterprise. In terms of the sentencing guidelines, the offence fell into category 2B: medium culpability and harm, with a starting point of four years and a range of three to six years.
14. The Recorder then considered the aggravating features: high value goods had been targeted and obtained; Higgins had a leading role; there had been significant planning; it was a prolonged event, committed in the early hours; the victim had been detained and driven to a remote location; and it was a group offence.
15. The Recorder noted that Higgins was 21 and had a bad record of complying with court orders and was subject to a conditional discharge at the time. The appellant was 23. His antecedent history was even worse than Higgins's and included more serious offences of violence and robbery, albeit when he was a youth. He also had a poor record of compliance with court orders. His last sentence had been completed on 18th April 2016, not long before committing this offence on 6th May.
16. There was so many aggravating features that the court would be justified in moving outside the category range in both cases. The appropriate sentence for both if they had contested matters would have been a term of six years. The court would not distinguish between them, but the sentence on Higgins would be reduced in order to take account of the consecutive sentences that were going to be passed on him for the other offences.
17. The appellant had pleaded guilty on the day of the trial and the court could see no reason to give more than 10% credit, which reduced the term from 72 months to 64 months. The sentence for Higgins was 50 months for the robbery, with consecutive sentences of eight months and 24 months for the other matters.
18. In the grounds of appeal, a number of points are taken, but the essential point advanced by Mr Knowles is that the Recorder erred in placing the offence in category 2B of the robbery guidelines, and that in any event the starting point of six years was too high. The Recorder placed too much weight on the previous convictions for robbery, which were committed between eight and twelve years before, and was wrong to conclude that there had been "significant planning". The appellant's written basis of plea was that:

Whilst he was aware that a robbery would take place, he did not know that any threat would be made to produce a weapon. He accepts that his presence at the scene assisted in the robbery and that he got out of the vehicle and told the complainants to get out before the co-defendant drove away.

19. In our view, that was an unrealistic version of what occurred, which the Recorder was entitled to view with suspicion. There were two people in the back of the car and the robbery which the applicant knew would take place must have involved, at the very least, a threat of violence.
20. The characteristics of this robbery placed it in the intermediate category of harm, category 2 - more than minimal psychological harm but less than serious psychological harm. So far as culpability was concerned, it was, we would accept, in category C so far as the applicant was concerned. A category 2C street robbery has a starting point of three years and a range of two to five years.
21. There were, however, aggravating features: first, the appellant's dire criminal record - although the robbery offences were of some age, the appellant appears to have become a habitual criminal; second, the fact that both the victim - as a visitor to Manchester - and his high value watch had been targeted; and third, the nature of the offence, involving taking the victims to an isolated place for the purposes of a robbery. These factors fully justified elevating the starting point above three years but within the range of two to five years. The mitigation was the late plea and, to some extent, the delay between plea and sentence - over six months.
22. In our view the sentence before credit was given for the plea should have been a term of four years and, with 10% credit for the plea, a term of three years and six months. Accordingly, we quash the sentence of five years and four months, and substitute a term of three years and six months. To that extent the appeal is allowed.