Attorney General's Reference Nos 41 and 42 of 2007 (Naidoo & Anor) [2007] EWCA Crim 1916

Case No 200701833/A7-200701834/A7[2007] EWCA Crim 1916
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 18th July 2007
Strand
London, WC2
B E F O R E:
LORD JUSTICE LATHAM
(THE VICE PRESIDENT OF THE CACD)
MR JUSTICE GRIFFITH WILLIAMS
MR JUSTICE KING
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NOS 41 & 42 OF 2007
(ROBERT NAIDOO)
(DAVID MANTON)
Computer Aided Transcript of the Stenograph Notes of
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MISS Z JOHNSON appeared on behalf of the ATTORNEY GENERAL
MR A FRYMANN appeared on behalf of the OFFENDER NAIDOO
MS N HOWARD appeared on behalf of the OFFENDER MANTON
J U D G M E N T
[1]THE VICE PRESIDENT: In this case the Attorney-General applies for leave to make a reference of sentences imposed on the offenders, Robert Naidoo and David Manton, on 12th March 2007. We give leave.[2]The sentences imposed on each of the two offenders was a sentence of 6 years' imprisonment for a total of four robberies, two attempted robberies and one count of having an imitation firearm with intent. As far as the robberies were concerned, they were all sentences of 6 years' imprisonment; as far as the attempt robberies were concerned, those were sentences of 5 years' imprisonment and as far as the firearms offence was concerned, that was 2 years' imprisonment. All of those were ordered to be served concurrently.[3]The offenders had entered on what has, in our view, properly been described as "a campaign" of robbery on banks and building societies in June 2006.[4]In each of the robberies and attempt robberies staff were threatened and told that the robbers were carrying firearms, causing substantial fear in those who were in the premises at the time. It was, it would appear only on the last occasion, however, that an imitation firearm was in fact carried.[5]We deal with the facts relatively shortly. The first robbery which was the subject matter of the indictment, took place on 22nd June 2006 when two males, one of whom was the offender, Manton, entered the Halifax Building Society in Elm Park Essex. One of two men went up to the counter and slid a threatening note under the screen to the cashier, saying:
"We've got guns. Put the money from all the tills in the bag or people are going to get hurt."
The two males then shouted threats at the staff, told them not to press the panic buttons and then a third male made himself apparent and told another member of staff: "If you value your mate you better hurry up and get on with it". £3,070 was handed over and the men left. The demand note was subsequently discovered to have Manton's fingerprint on it.[6]Four days later, at about the same time in the afternoon, the offenders, Naidoo and Manton, entered the Halifax building society in Harold Hill. There was one customer in the premises at the time. One of them remained at the doorway while the other went up to the counter. In a relaxed manner he pulled out a piece of paper and pressed it up to the glass screen. The cashier could not remember the exact words but did recall the word "gun" and "put the money through the drawer". As the robber did this, he told the cashier:
"Don't think about pressing the button."
He intimated that he had a gun beneath his jumper. £1640 was handed over and the offenders made good their escape in a motorcar, which it transpired had been stolen earlier that day.[7]Three days later, once again at the same time in the afternoon, the offenders, Naidoo and Manton, entered Bradford & Bingley Building Society in Harold Wood. One stood by the door, the other went up to the counter. There were no customers in the premises at the time. The offender who approached the counter shouted:
"This is a raid give me the money"
. He held a piece of paper to the glass screen; he demanded money in larger bills. He then put his right hand under his top, intimating that he had a gun. £2790 was handed over and the robbers left, again in a car which was subsequently found to have been stolen.[8]On 4th July 2006, this time at about 1 o'clock in the afternoon, the offenders Naidoo and Manton, entered the Woolwich Building Society in Harold Hill. One remained by the door, the other was to the counter. They both had handkerchiefs wrapped round their lower faces. The one who approached the counter demanded money and ordered the cashiers not to press the panic button, saying:
"Give us your money because I don't want to shoot anyone"
. He repeated his demands for large notes and said: "I've got a gun." £880 was handed over; and they both then fled the scene.[9]Just about an hour later they both entered the Abbey Bank in Debden. There were customers in the bank. As usual, one stayed by the door while the other, who had a mask on his lower face, ran past the queue of people to the counter and tried to reach forward and grab money that the cashier was handling. He demanded the money and appeared to try to pull something from his right trouser pocket. On this Occasion the security screen was activated and the robbers left empty-handed.[10]Then three days later, again at about lunchtime, the offenders entered the Abbey Bank in Chingford. They were masked. There were customers in the bank. One of the offenders waited by the door while the other approached the counter. The one who approached the counter demanded money, appearing agitated. When he noticed one of the cashiers trying to push the panic alarm he said:
"Stop fucking around, I want cash"
. Then:
"Fucking sit down, I've got a gun."
But the security screen was once again activated and the offenders left, without having been able to obtain any money, in a green motor vehicle.[11]Less than an hour later the police officers saw a green car being driven by a person who was eventually a co-defendant, Gillard, passing the Halifax Building Society in Elm Park. Shortly afterwards the offenders, Naidoo and Manton, walked up to the Halifax with their jacket hoods up. They entered. Naidoo approached the counter. He shouted, demanding money from the tills in fifties. He produced a black handgun and pulled the top back. As he continued to shout for money, he pointed the gun directly at two female cashiers and a male cashier in turn. He grabbed the money, continually shouting as he did. £2050 was handed over and the two of them left the premises and got into the waiting green car which was the one being driven by Gillard. A male cashier gave chase and Naidoo pointed the gun at him.[12]They were apprehended shortly afterwards having been pursued by the police officers who had been close to the scene at the time. A black imitation handgun was recovered from the vehicle.[13]That was the factual background against which these sentences were imposed. Both of the offenders had pleaded guilty and were treated as having pleaded guilty at the first available opportunity, although in fact it was not at the plea and directions hearing. The offender Naidoo, who appears on at least some of the occasions to have been the ringleader and was so treated by the judge, had no previous convictions. The offender Manton, had numerous previous convictions for theft. Naidoo was at the time 22, Manton, 25. The co-defendant, Gillard, who was sentenced to a total of 5 years' imprisonment for his part in the last two offences, that is the last robbery and the count of possession of a firearm, was sentenced to 5 years' imprisonment. He was a significantly older man, with previous convictions.[14]The Attorney-General, against that background, submits, through Miss Johnson, that the judge simply failed to reflect adequately the totality of the offending in this case. Referring to the Sentencing Guidelines Council Definitive Guideline on robbery she points out that each of these individual robberies would fall into the category of a less sophisticated commercial robbery, where a weapon is produced and used to threaten, even though it was only on the last occasion that it would appear an imitation firearm was in fact being held. For those the sentencing range for each offence was accordingly 2 to 7 years.[15]The point is made that the mere fact that the weapon in the final offence was an imitation firearm, rather than a real firearm, and that there were only threats of the use of guns in the earlier robberies, cannot detract from the fact that on each occasion fear was occasioned deliberately, in order to achieve the robbers' aims. In those circumstances, it is submitted that the sentence which would have been appropriate, as a total sentence to reflect the criminality, would have been and should have been one of 10 years' imprisonment.[16]On behalf of Mr Naidoo, we have been reminded that a proper discount for the plea of guilty had to be reflected by the judge. Bearing in mind, the relative youth of Mr Naidoo and the fact that he had no previous convictions, a sentence of 8 years' imprisonment might by considered to have been appropriate. But this court should not interfere on the basis that although lenient, the sentence was not unduly lenient; alternatively that applying the principle of double jeopardy this Court should not interfere.[17]On behalf of the offender Manton, Miss Howard submits that, once again, we must bear in mind that there was a plea of guilty which the judge treated as being a plea at the first available opportunity. She submits that her client was the lookout on each occasion and not, as she reminds us, described by the judge as the ringleader. She also prays in aid double jeopardy and she makes a further submission that, even if we were to consider increasing the sentence, we should bear in mind that at the moment Mr Manton is undergoing a course at the prison in which at present he is serving his sentence which would not be available to him if the sentence was increased to one of more than 9 years.[18]We have considered with care the respective submissions. We have no hesitation whatsoever in concluding that the Attorney-General's submissions are correct. In this case this campaign of robbery, escalating, as it did, to the robbery on the last occasion on 7th July, cannot be treated in the same way as a single robbery. The sentencing guidelines therefore only provide a base from which to consider the appropriate ultimate total sentence.[19]It is not submitted on behalf of the Attorney-General that the judge erred in principle in not imposing a consecutive sentence for the firearm but it is pointed on her behalf that the court's practice has in general been to impose a consecutive sentence, to mark the use of a firearm, albeit the court in that situation has to make sure that it has not double counted in relation to the substantive sentence for the robbery.[20]As far as double jeopardy is concerned, this Court has now made it plain that a significant discount for double jeopardy is likely only to apply where the sentence that was originally imposed was a non-custodial sentence, or was a short custodial sentence which is being increased substantially. In those cases clearly the element of double jeopardy has a significant effect. The longer the sentence which was originally imposed the less effect double jeopardy can have on the approach of this Court to the ultimate sentence.[21]But doing the best we can, we take the view that the minimum sentence which these two offenders could and should have expected at the end of these proceedings, bearing in mind all the matters we have referred to, would have been one in total of 10 years' imprisonment. We propose to reflect that by increasing the sentence in relation to count 8, that is the final robbery count to one of 8 years' imprisonment and to order that the 2 years' imprisonment imposed on the firearms count, count 9, should be served consecutively. That makes the total of 10 years' imprisonment. In our view, that properly reflects the way in which the sentences should have been imposed originally.