Court of Appeal in Northern Ireland Decisions

Neutral Citation no. (1999) 1877	Ref:	GILE2745
Judgment: approved by the Court for handing down	Delivered:	22/01/99
(subject to editorial corrections)

 

      IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND

 

                                                               ------------

 

                                                           THE QUEEN

 

                                                                      v

 

                                                 MICHAEL TOWNSLEY

 

                                                               ------------

 

GILLEN J (giving the judgment of the Court)

 

            This is an application for leave to appeal against the sentence imposed by His Honour Judge Hart QC at Belfast Crown Court sitting in Antrim on 30 September 1998.  The applicant pleaded guilty to six counts on the indictment, namely:-

Count 1 -        Robbery of Jonathan Harper of beer and cigarettes on 14 February 1998 involving the use of an imitation firearm for which the applicant was sentenced to two years' detention.

Count 2 -        Robbery of Nicola Scott on 14 February 1998 of £20 or thereabouts involving use of an imitation firearm and for which he was sentenced to two years' detention.

Count 3 -        Robbery of Jennifer Marley of £3 or thereabouts and bank cards on 15 February 1998 involving the use of an imitation firearm for which he was sentenced to two years' detention.

Count 4 -        Robbery of Fidelma Carolan of £60 or thereabouts on 15 February 1998 involving the use of an imitation firearm for which he was sentenced to two years' detention.

Count 5 -        Hijacking a vehicle on 15 February 1998 for which he was sentenced to three years' detention.

Count 6 -        Assault and false imprisonment of Fidelma Carolan on 15 February 1998 for which he was sentenced to four years' detention.

            Counts 1 and 2 arise out of an incident on 14 February 1998 at about 10.55pm.  Jonathan Harper and Nicola Scott were sitting in the grounds outside the Belfast City Hospital when they were approached by the applicant wearing a balaclava.  He produced what appeared to be a handgun in one hand and seemed to have a knife in the other.  He demanded from them the items outlined in the indictment.  In the course of the robbery he shouted at Ms Scott to hurry up, saying "I'm giving you one minute and then I am going to blow your brains out", and started to count.  He then left, stating "Don't be telling anyone, I know where you live, I'll come and get you".

            Count 3 arose out of an incident the following evening on 15 February 1998 at about 7.00pm on the Lisburn Road.  A female student, Jennifer Marley, was walking through College Gardens towards the Lisburn Road and was approached by the applicant who drew what appeared to her to be a gun from his jeans and demanded money from her.  She handed over her wallet containing her bank cards and personal papers together with some money.  During the robbery the applicant threatened to shoot her in the knees if she reported the matter and warned Ms Marley he would find her where she lived.

            Counts 4, 5 and 6 arose out of an incident on the same evening on 15 February 1998 on the Lisburn Road at about 8.15pm.  A female employee from Domino's Pizza, Fidelma Carolan, was lured to an address at Roseland Place by the applicant making a bogus telephone order for pizza.  When Ms Carolan sought to return to her car after discovering the order was bogus, the applicant approached her, produced what appeared to her to be a gun, and demanded and obtained money from her.  The applicant then forced her to get into her car and drive him on a circuitous route up the Lisburn Road to Edenderry.  During the time she was driving he kept the gun pointing at her side.  Having forced her to drive to a laneway at Edenderry, the applicant then ordered her from the car and physically tied her to a fence post, using her jacket to tie her up.  He then abandoned her and took her car.  This woman was exposed to this ordeal for between 45 minutes and one hour.

            The applicant was subsequently apprehended by the police on the same evening.  Initially when he was interviewed, in relation to the matters contained in counts 1 and 2, he denied all involvement, alleging he had been at home at the relevant time.  Thereafter he falsely attempted to implicate his girlfriend, alleging that she had participated in the robbery.

            Leave to appeal against the sentences in these matters was refused by Sheil J on 8 December 1998.

            The applicant has a criminal record consisting of what is in effect one previous offence.  He was convicted at Belfast Crown Court on 7 April 1995 on five counts of robbery which occurred on 6 May 1994.  A probation order for two years was imposed on each count by the Court.

            The grounds of appeal in this matter were set out in the Notice of Appeal.  They were that the totality of his sentence was manifestly excessive in that the trial judge failed to take adequate account of:-

(a)        the appellant's plea of guilty;

(b)       the personal circumstances of the appellant;

(c)        the co-operation provided by the appellant to the police during the course of his interviews;

(d)       the psychiatric and pre-sentence report provided to the court.

            Mr Campbell, who appeared on behalf of the applicant, relied mainly on the personal circumstances of the background of the applicant and submitted that the judge had paid insufficient attention to these matters during the sentencing process.  He did not attempt to argue that the case did not merit a custodial sentence.  He did contend, however, that the sentences were not commensurate with the seriousness of the offences given the mitigating circumstances.  He pointed out that the judge did not specifically allude to the possibility of imposing a custody probation order, to which he was bound to give consideration under Article 24 of the Criminal Justice (NI) Order 1996.  Mr Campbell did not submit that any failure on the part of the judge to address this Article was fatal to the validity of his sentence but submitted it was a factor to be borne in mind when looking at the overall sentence.

            We had before us, as did the judge, the pre-sentence report of Ms Linda Lambe of 8 September 1998, the probation officer's report of 5 April 1995 arising out of his previous convictions, the psychiatric report of Dr Bownes of 8 September 1998 and a number of other references.  Mr Campbell emphasised to the court that the applicant had been subjected to physical and sexual abuse as a child, that at the time of these offences he was residing in poor living conditions, that he had been at that time infatuated with a woman much older than himself and that he had been abusing alcohol and drugs.  Finally he emphasised that subsequent to the offence, upon being admitted to bail, the applicant had found employment, behaved appropriately and had thus in his submission proved he had the capacity to change his criminal habits.  Relying on all this material, counsel urged on the court that an appropriate way to deal with the applicant would have been to invoke Article 24 of the 1996 Order and impose a custody probation order.

            In our judgment the sentences imposed on each of the counts were in no respect excessive.  In respect of counts 1, 2, 3 and 4 the applicant had pleaded guilty to a number of very serious robberies which must have been extremely frightening for all of the victims, none of whom would have been aware that the weapon used was not a real firearm or that the applicant did not intend to carry out the threats he issued.  We would reiterate what we said in R v Henderson (1996, unreported) about a similar crime:

                        "The offence in which the applicant took part was robbery, in the time-honoured phrase robbery with violence, and no amount of euphemism, such as terming it a snatch or mugging, will make it any less frightening for the victim or any less a social evil which must be visited with deterrent sentences."

 

The concurrent sentences of two years' detention in each case seem to this court moderate in the circumstances and had the judge sought to make any of these sentences consecutive it would have been difficult for this court to have found fault in principle with such an approach.

            Counts 5 and 6 were the most serious of these offences.  Guidelines for sentencing in cases of false imprisonment were set out by Lord Lane CJ in R v Spence & Thomas (1983) 5 Cr App R(S) 413 at page 416:

                        "It seems to this court, that as with many crimes so with kidnapping, there is a wide possible variation in seriousness between one instance of the crime and another.  At the top of the scale, of course, come the carefully planned abductions where the victim is used as a hostage or where ransom money is demanded.  Such offences will seldom be met with less than eight years imprisonment or thereabouts.  Where violence or firearms are used, or there are other exacerbating features such as detention of the victim over a long period of time, then the proper sentence will be very much longer than that.  At the other end of the scale are those offences which can perhaps scarcely be classed as kidnapping at all.  They very often arise as a sequel to family tiffs or lovers' disputes and they seldom require anything more than eighteen months' imprisonment and sometimes a great deal less".

 

            In the present case the applicant had abducted a young woman using an imitation firearm and had put her through a terrifying ordeal for between 45 and 60 minutes, during which she must have understandably feared for her life.  The sentence of four years for false imprisonment seems to us to have been fully justified.  The only issue which requires consideration is whether a custody probation order would have been a desirable disposition of the case.

            The judge was privy to the background of the applicant.  Whilst he did not directly advert to Article 24 of the Order, he had all the relevant reports on the applicant before him, senior counsel in the course of his plea had specifically referred to Article 24 and accordingly we have no doubt that this very experienced judge properly addressed the matter.  The applicant, as the judge correctly noted, had had help from many people in the past and had already enjoyed the benefit of a period of probation, yet he had gone on to commit the present series of crimes.

            In these circumstances therefore the court considers that the judge acted entirely appropriately in deciding not to make a custody probation order.  We are satisfied that the sentences of three and four years' detention on counts 5 and 6 respectively were appropriate.

            The application will accordingly be dismissed.

      IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND

 

                                                               ------------

 

                                                           THE QUEEN

 

                                                                      v

 

                                                 MICHAEL TOWNSLEY

 

                                                               ------------

 

                                                           JUDGMENT

 

                                                                    OF

 

                                                              GILLEN J

 

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