Court of Appeal in Northern Ireland Decisions

Background facts

"8. The offences were committed on 15th March 2007, in circumstances where police undertook an operation stimulated by the receipt of intelligence. As a result, a team of specialist police surveillance officers and specialist uniform support officers was deployed. These officers took control of a Securicor delivery vehicle, driven by a Securicor delivery guard. This was a "cash in transit" Securicor vehicle, with a delivery destination of the Northern Bank, Upper Lisburn Road, Finaghy, Belfast. Damien and Stephen Gibbons are brothers. Damien Gibbons was travelling in a van driven by Stephen Gibbons. This was one of two vehicles, driving in convoy, under police observation during a period of approximately one-and-a-half hours. The second vehicle contained Stilges and Crone.

9. The delivery of one cash box to the bank was duly effected and a second delivery then commenced. At this point, one of the plain clothes police officers was approached by the offender Damien Gibbons who was brandishing a large steel kitchen knife, approximately 10 – 12 inches long, and demanding that the cashbox be handed over. The offender made a grab for the box and when the officer refused to relinquish it the offender made an aggressive slashing motion across the officer's neck, forcing him to jump backwards. The knife narrowly missed his neck. At this stage, the officer relinquished the cash box and the offender Damien Gibbons ran off with it, crossing the Lisburn Road and entering Grangeville Drive, pursued by police officers. During pursuit, he threw the cashbox onto the pavement and got into the passenger seat of the van being driven by Stephen Gibbons. An unmarked police vehicle then blocked the progress of the getaway vehicle, which accelerated into the former, colliding with it bumper to bumper. Stephen Gibbons then attempted to accelerate past the police car, mounting the footpath and his vehicle collided with a concrete pillar. Damien Gibbons was arrested after a violent struggle with police officers and he continued to struggle following arrest. Stephen Gibbons also resisted arrest. It was observed that he was wearing black gloves. In the aftermath, two pairs of gloves were recovered from the offenders.

10. The Crown case was that all four offenders were involved in the planning and execution of the robbery. The conduct of Damien and Stephen Gibbons at the scene and in the immediate vicinity of the robbery is detailed in paragraph 7 above. [This should be paragraph 9]. During this phase of the execution of the offence, the role of Stilges and Crone was that of lookouts. The car being driven by Crone was to act as a second getaway car into which the Gibbons brothers were to transfer after discarding their car. On being searched, the car contained four mobile phones, an iron bar and a hammer. The Crown case was that this was a prepared robbery in which all four offenders had essentially the same degrees of culpability. Crone was driving a car he had taken from his brother without his brother's consent. He was disqualified from driving and had no insurance.

11. The offenders made no admissions and maintained their denial of guilt until a late stage. Upon arraignment on 7th November 2007, they pleaded not guilty. On 30th November 2007, following submission of an amended indictment, they pleaded guilty. The amendments merely consisted of the indictment stating "robbery" as opposed to "armed robbery" and the insertion of a new second count on the indictment charging the offence of having an offensive weapon in a public place. In the event, the Crown did not proceed with this count against any of the offenders, on the basis that all of them knew that a knife was to be deployed in the robbery, and the case for the Crown was presented accordingly. The offence of having an offensive weapon was left on file in these circumstances."

"His Honour Judge Finnegan QC: Ms Mehaffey you tell me the knife, the presence of the knife was known [on] your case?

Ms Mehaffey BL: Yes, by all co-accused."

"… my learned friend is quite right, it's just that she's said that. But it always seems to me, Your Honour and I must say and I may not be right about it, that count one's count of robbery, [to] which the accused has pleaded guilty … not on the basis that he knew that there was a knife. It seems to me that the original indictment which I will hand up to Your Honour now, is the same offence robbery contrary to Section (8)(1), Theft Act (Northern Ireland) 1969. The difference being that in the particulars of the offence after Your Honour is looking at the second indictment, robbed Simon Gerald Callaghan of a cash delivery box and a weapon of offence, namely a knife, was used to commit the said offence. One might call it the usual way of expressing armed robbery and then my friend has said, what is now count three, was then count two. So the charges having being divided up … or the first count having being divided up the way that it has between the first count and the second count, appears to reduce the situation where the robbery simpliciter is count one, and the possession of the knife at the time which is not being proceeded with, is count two. And I did have discussions at the time with my friend about this and …"

"All I'm interested in is what changed between the first indictment and the second indictment, it's always … an unhealthy area, due to frailties of recollection and what specifically was said and what was specifically agreed to, I merely want to establish what the court can see in front of it … on the re-arraignment or the … second arraignment … and that's all I require."

"I think I must sentence on the terms of the new indictment which make no mention of the knife in the robbery and also that there is no joint charge, the second count has not been proceeded with."

Previous convictions

January 2003 of an offence of robbery committed on 13 February 2002 for which he had received a custody probation order of four years' detention and thirty months' probation. He had also been sentenced to five months imprisonment suspended for two years for driving whilst disqualified on 3 May 2005 – this period of suspension was still unexpired at the date of the present offences.

Pre sentence reports

The judge's sentencing remarks

"In the court papers there was a defence statement served on behalf of the first named accused which as part of his defence he alleged that there had been [an] agent provocateur and that he had been entrapped into committing this offence. While the court took the view that that did not give rise to a working defence in the particulars of this case there is authority to say that such a situation can affect the sentence. Such a Newtown type enquiry or anything of that nature would of course have lead to the possibility at least of the source of the very, very extensive information that the prosecution agents, namely the police had as to the activities of the accused that morning. The court had also noted in the course of the papers that at least one of the accused claimed he had been brought in at short notice and that some other participant had withdrawn from the enterprise. If the court had decided to conduct an enquiry at that early stage or indeed even on the first day when the Gibbons were sentenced it would have precluded if there was any such intention that the (inaudible) of the accused would lead to a plea of guilty on the terms specified on the new indictment. Such an entitlement to discount would not have only flowed to the first named accused if a successful enquiry on a Newton type hearing had been launched and the court was satisfied that some participant not before the court had in fact set this up and encouraged the participation of all the four accused. For that reason the court stayed silent, perhaps unwisely and trusted in the wisdom of the new drafting of the indictment. I think the court should sentence on the basis of what presented to it. Whatever the understanding, and I don't doubt the bona fides of Miss Mehaffey and the various other people involved. It is again of some significance that in spite of two enquires as to the police view about this suggestion of another participant not before the court and whether he had cried off and one of the accused had come in at short notice. Certainly the benefit to the State and a proper one is that no trace can be made to where all this information came from or whether it exists, this offence had been actively encouraged by somebody not before the court. It is on that basis that I sentenced the Gibbons."

Sentencing for robbery in Northern Ireland

"We wish, therefore, to make absolutely clear that for a commercial robbery carried out as a well planned venture, where firearms or imitation firearms are used and where the perpetrators use or are prepared to use violence, the starting point for sentence after a contest should be fifteen years. On a plea of guilty at the earliest opportunity the appropriate starting point is ten years' imprisonment. Where a plea is made later than the first opportunity the reduction should be adjusted to take account of the lateness of the plea and the reasons that it was not entered earlier."

"[5] The robbery offence to which all the offenders pleaded guilty took place at approximately 12.15 pm on 7 January 2003 outside the Ulster Bank, Market Square, Antrim. Police had been informed that an armed gang intended to rob Securicor staff while they carried out a transaction at the bank. A police surveillance team was put in place and police officers took on the role of the Securicor staff who would normally have been involved in the delivery to the bank. While walking from the Securicor vehicle to the bank, one of these officers (who was carrying a cash box containing £25000) was approached from behind and struck on the head with a gun by the offender Doran who then snatched the cash box. Immediately after that other police officers came to the scene; they apprehended Doran and recovered the weapon and the cash box. It was found that the firearm was imitation. A second person (who was arrested at the scene but later absconded) was arrested a short distance away. He was driving a stolen vehicle in which a bin filled with water was discovered. The driver was found to have two mobile telephones in his possession and a set of keys for a Volvo motor car.

[6] Rooney, Cunningham, Irvine and Dorrian were arrested in a van at High Street, Antrim, some 300 metres from the scene of the robbery. While making these arrests police recovered two mobile telephones. One of these was found to have been broken open, and the 'Sim' card had been thrown away. It was deduced that this had been done in an attempt to prevent analysis of calls that had been made earlier. Police had, however, observed earlier interaction between the occupants of this van and two other vehicles, one of which was the Volvo. The van had been seen parked beside these vehicles at other locations in Antrim before the robbery. Rooney's fingerprints were found inside the Volvo and on a can that had been discarded in that vehicle. The word "Roon" was also found written on the inside of the car's sunroof. Forensic evidence found a link between Rooney's telephone and the driver of the vehicle who was arrested near the scene. Other links were established between Rooney and Irvine. Based on these findings the prosecution case was that Rooney had a major role in the planning and execution of the robbery."

Discussion

Conclusions

1. In the case of Damien Stilges, a commensurate sentence on the charge of robbery of ten years. This will comprise a period of custody of eight and a half years and eighteen months' probation. We were not invited by the Attorney General to activate the suspended sentence and, not without misgivings, we make no order in relation to that. The consecutive sentence on the charge of attempting to commit grievous bodily harm will remain unaltered.

2. In the case of Stephen Gibbons, a commensurate sentence of eight years. This will comprise a period of custody of six and a half years and eighteen months' probation. For the same reason, we shall not activate the suspended sentence in his case. The consecutive sentences on the driving charges will not be altered.

3. In the case of David Crone, a commensurate sentence of seven years. This will comprise a period of custody of six years and twelve months' probation.

4. In the case of Declan Stilges, a commensurate sentence of six years, comprising four years' custody and two years' probation.