Attorney General's References Nos 45, 46, 47, 48 and 49 of 2007 (Callaghan& Ors) [2007] EWCA Crim 3383

[2007] EWCA Crim 3383Case No 200702012/A2-200702016/A2-200702013/A2-200702015/A5-200702014/A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 11th July 2007
Strand
London, WC2
B E F O R E:
LORD JUSTICE MAURICE KAY
MR JUSTICE TUGENDHAT
SIR RICHARD CURTIS
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NOS 45, 46, 47, 48 & 49 OF 2006
(CALLAGAHAN & ORS)
Computer Aided Transcript of the Stenograph Notes of
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MISS S WHITEHOUSE appeared on behalf of the ATTORNEY GENERAL
MR C BATTY appeared on behalf of the OFFENDERS CALLAGHAN & SMITH
MR S BATISTE appeared on behalf of the OFFENDER BRATTLEY
MR F DAVIES appeared on behalf of the OFFENDER SMITH
MR A STUBBS appeared on behalf of the OFFENDER BUIKE
J U D G M E N T

LORD JUSTICE MAURICE KAY:

This

[1]case comes before the Court by way of a Reference, under section 36 of the Criminal Justice Act 1988. We grant leave.[2]The case concerns five young men who pleaded guilty to offences of conspiracy to steal and conspiracy to burgle. On 20th March 2007, in the Crown Court at Leeds, they were sentenced by His Honour Judge Dobkin. Callaghan received a sentence of three-and-a-half years' imprisonment for these offences, with additional concurrent sentences for unrelated matters of burglary, aggravated vehicle taking and driving while disqualified, totalling 12 months. In other words, his sentence in total was one of three-and-a-half years. Brattley received a sentence of two-and-a-half years' detention on the indictment, as did Boylan and Buike. However, in Boylan's case there was a consecutive sentence of 4 months for an offence of affray, and in Buike's case, there was a consecutive sentence totalling 9 months in relation to unrelated matters of burglary, aggravated vehicle taking and driving whilst disqualified. Smith received a sentence of 2 years' imprisonment on the indictment.[3]Callaghan is aged 22; Brattley is 20; Boylan is 20, Buike is 23 and Smith is 21.[4]The offences for which they were being sentenced, the offences of conspiracy, all relate to what can only be described as a campaign of ram raiding in and around Leeds over a 4-month period. As is common with such offences the conspiracy to steal was concerned with the obtaining of cars for use in ram raid offences. Thereafter, the vehicles were used in the course of burglaries of commercial premises.[5]In some cases the stolen vehicles were used in order to effect the offence through the doors or windows of premises. In other cases, sometimes the same cases, other vehicles were used for purposes of escaping from the scene. On most occasions the offenders wore balaclavas or masks in the course of the offending.[6]A great deal of damage was done and a large amount of property was taken. Although Miss Whitehouse, on behalf of Attorney, suggests that that total combined value of damage caused and property stolen may have approached £1 million, we shall proceed on the lesser figures that appear in the papers, namely that the damage amounted to some £116,000, and the value of the property taken to £170,000. We do so in the knowledge that those figures are underestimates, not least because in relation to some of the offences, where clearly damage was done to property that was taken, no specific figures are known to us.[7]When the matter came before the learned judge, it is plain that discussions had taken place between prosecution and defence over a substantial period of time as to possible bases of plea. Although the five offenders each pleaded to both conspiracies, what in fact occurred was that they admitted involvement in limited overt acts carried out in the course of the conspiracies. Thus, Callaghan admitted being involved in four burglaries, two of which were ram raids, five thefts or attempted thefts of vehicles, one theft of a computer and two offences of making off without payment as his contribution to the conspiracies. The offences of making off without payment were ones of fuelling cars at service stations. Brattley admitted involvement in four of the burglaries, three of which were described as ram raids together with the theft of one vehicle.[8]Boylan admitted involvement in three burglaries, all of them ram raids, and five thefts of motor vehicles. Buike accepted involvement in three burglaries, again all of them ram raids, together with three thefts of motor vehicles. Smith admitted involvement in two burglaries, one of which was a ram raid, together with thefts of four motor vehicles.[9]As it happened he had already served a sentence of 6 months' imprisonment in relation to the theft of one of the vehicles that formed part of the overall allegation of conspiracy. That is the explanation for his having received a shorter sentence than Brattley, Boylan and Buike, the 6 months having been deducted from the two-and-a-half years that was imposed upon each of them, producing the sentence of 2 years in his case.[10]It is necessary to set out the history of this crime wave, which afflicted the city of Leeds between September 2005 and January 2006. The offences really come in groups. The first group of offences involved the theft of a Vauxhall Vectra, on 8th September. The keys to it had been stolen in a domestic burglary. Four days later, a Cherokee Jeep was stolen from a carpark. Later that day the Vectra was used in a ram raid at Otto Bock Healthcare. A computer monitor and digital camera were stolen. The following day the Vectra and the Cherokee Jeep were used in a ram raid at the House of Fraser store in Briggate in Leeds City Centre. The damage on this that occasion was £38,000 worth and £12,000 worth of goods were taken. Brattley accepted involvement in that offence with two or three unnamed persons.[11]The next group of offences began with theft of a Vauxhall Tigra car on 5th October. Again, its keys had been stolen in a domestic burglary. It was used as the getaway car following the theft of computer equipment from a van on 6th October. Callaghan accepted involvement in that offence and also with an offence of making off without payment when he filled it with petrol on 6th October. Chronologically the next date of significance is that Boylan, who had been out of the country in September and early October returned on 17th October. We mention that to illustrate the point made on behalf of all the offenders in different ways that they were not all available from participation in the full extent of the conspiracy at all times and that is why we are invited to approach their offending on the basis that, although they had pleaded guilty to conspiracies, they have done so on the basis of limited participation.[12]The next group of offences began on 24th October, when the keys of a Toyota Corolla were stolen in the course of a domestic burglary. On the same day it was used in the attempted theft of another vehicle, outside a leisure centre, at which time a security guard was threatened with a tool. Callaghan accepts involvement in the attempted theft of that second vehicle and also with making off without payment when he filled it up with petrol on 30th October.[13]The next offences to which the prosecution make reference occurred between 24th and 31st October. The keys to a Fiat Punto were stolen in a domestic burglary. The car was then stolen. On 30th October, a Nissan Skyline was stolen from a street in Leeds. On 31st October the Fiat Punto was used in the course of a ram raid at Currys electrical store at a retail park in Leeds City centre. The Nissan Skyline was used a getaway vehicle with electrical goods to a total value of £22,000. A security guard had been attacked with a crook lock during the commission of the offence. None of the offenders before the court accepted participation in that matter.[14]There was then a group of offences which occurred on 8th November. A Honda Civic was stolen from the carpark of a cinema. Boylan accepts involvement in that. Another Honda Civic was stolen from another car park on the same day. Later, both vehicles were used in the course of a ram raid offence at a garage in Leeds, one to gain forcible access to the premises, the other to transport the offenders away from the scene. Boylan accepts involvement in all of that.[15]We then move to 14th November when a Vauxhall Frontera was stolen from the carpark at the White Rose shopping centre. It was later used in a burglary at Staples Store on Kirkstall Road, where damage was caused in the effecting of the burglary but the vehicle was not used forcibly on the premises. It was however used as a gateway vehicle.[16]Until this time Buike had been serving a sentence of imprisonment and so was not involved in any activity prior to 17th November, his release date. However, he became involved the very next day because on 18th November another Vauxhall Frontera was stolen from the carpark at the cinema. Boylan and Buike accept involvement in that. It was then used later the same day in the course of a ram raid at PC World when satellite navigation systems and a flat screen monitor were stolen. Buike accepts responsibility for that.[17]Two vehicles were then stolen between 18th November and 21st November, a Ford Transit van and a Renault Wagon. They were stolen in the course of a burglary at a warehouse in Leeds and Callaghan admits responsibility for that. The Renault Wagon appears a little later in the events.[18]The 21st November was an eventful day. A BMW convertible was stolen from premises in Hunslet, as the owner was filling the windscreen washer. Buike was the thief. On the same day a Mazda was stolen from a car rental company by Boylan and a Honda Civic was stolen from a street in Leeds by Callaghan. Still on the same day, the 21st November, the Renault Wagon, to which we have referred, was used in the course of a ram raid to break down security bollards outside Currys electrical store. All three of the vehicles that had been stolen earlier on 21st November were also used in the course of the commission of that offence or in the transportation of the offenders from the scene. Almost £24,000 worth of electrical goods were stolen. Boylan and Buike accept responsibility for that.[19]Two days later, on 23rd November a Vauxhall Frontera was stolen from a casino car park by Boylan and it was on the same day used to break down the doors of the House of Fraser in Briggate, causing damage of £30,000. The Mazda car that had been stolen on 21st November was used to transport the offenders away from the scene. Boylan was involved in all of that.[20]On 29th November Callaghan, Brattley and Boylan were arrested but were released on bail. On 2nd December, Smith was released from custody having served a sentence of 21 months' detention. He was soon to become involved in this offending.[21]There was next a group of offences on 8th December. The BMW was stolen from a cinema complex car park by the recently released Smith. A Range Rover Freelander was stolen from a carpark in the city centre. The Frontera was then used to breakdown the front window of Jessops Store in Wade Lane in the city centre and the Freelander and BMW were also used in the course of the commission of the offence. £40,000 worth of damage was caused and photographic equipment valued at £16,000 was stolen. Smith accepted involvement in that offence.[22]The following they, on 9th December, Brattley, Buike and Smith were arrested. Again, they were released on bail.[23]On 11th December a Renault Espace was stolen in York Road and it was involved in the attempted theft of a Subaru Imprezza in the car park of Ikea. Later the same day the Renault Espace was used in a robbery at a garage when a car was taken, but none of the offenders accepts responsibility for that.[24]We next go to the 12th December. A Peugeot was stolen from outside a newsagents by Buike. In the early hours of 13th December, there was an attempt to smash into a restaurant by the occupants of that vehicle. Twenty minutes later there was a ram raid at the premises of Richer Sounds at Vicar Lane in the city centre. A Vauxhall Corsa and the Peugeot were used in the commission of that offence. Goods to the value of £6,000 were stolen. Buike pleaded guilty to that offence albeit on a separate indictment. He was arrested that day and thereafter remained in custody. That was the second matter of burglary for which he received a concurrent sentence.[25]The next group of offences occurred on 14th December. A Suzuki Vitara was stolen from a carpark and a Ford Mondeo was stolen from outside a public house. A Range Rover was also stolen from the carpark of the White Rose shopping centre. Smith accepted that he was involved in that theft.[26]On the same day there was a burglary at Mitchells Camping Store in Wakefield, in which the Suzuki, Range Rover and Ford Mondeo were used for transport. That burglary was not a ram raid, it was carried out by way of a hole made in the roof of the building and £35,000 worth of clothing was stolen. Smith accepts involvement.[27]A week later, on 21st December, a BMW was stolen from outside a launderette by Smith, and a Subaru Imprezza was stolen from the car park of the White Rose shopping centre. That night police officers saw three men pushing it along a street in Leeds city centre. The men ran off. Boylan and Smith were found hiding nearby. A balaclava was found in the area and Boylan's DNA was found on skin flakes within the Balaclava. Fibres from Smith's tracksuit were found on the seat of the vehicle. That was the offence with which Smith was charged separately, with offences of aggravated vehicle taking, going equipped for burglary and driving while disqualified and for that he received a sentence of 6 months' imprisonment in the Magistrates' Court on 8th June 2006.[28]Following a break for Christmas and the New Year, offending began again on 3rd January 2006, when the keys for a Ford Focus were stolen in the course of a domestic burglary, after which the car itself was stolen. On 6th January, there was a burglary at Sally Hair and Beauty Supplies. Amplifiers which had been taken from the Ford Focus were used to smash the window of the front door and property to the value of £5,319 was stolen. Callaghan and Brattley were involved in that.[29]The next day there was a burglary at S & P Metal Polishers. The shutters of the front doors were forced and internal windows were smashed. The damage would cost £2,000 to repair. Various items were stolen. The Ford Focus was used in the course of that offence, which Callaghan and Brattley admit.[30]The final offences occurred also on 7th January. A Vauxhall Frontera was stolen from outside a cinema by Brattley. It was then used in the course of a ram raid at Cardigan Mills Business Centre. Damage was done to the value of £3,000, and property worth £2,500 was stolen. Callaghan and Brattley admit responsibility. That then is a brief description of this calender of extremely serious crime.[31]Notwithstanding their relative youth, all five offenders had substantial numbers of previous convictions. Callaghan had ten previous court appearances in relation to 21 offences, which included the taking of motor vehicles and commercial burglaries, one of which involved a ram raid.[32]Brattley had appeared on eight previous occasions for a total of 13 offences, the majority of which were aggravated vehicle taking and commercial burglaries. Three of the burglaries were of a ram raid type, involving stolen vehicles.[33]Boylan had been convicted on six previous occasions for a total of nine offences. Almost all related to the taking of vehicles and commercial burglaries including one ram raid offence.[34]Buike had appeared on 11 previous occasions for a total of 23 offences. They included commercial burglaries and the taking of vehicles. There was one ram raid type offence.[35]Smith had been before the courts on 19 previous occasions in respect of 39 offences. They included a number of offences of theft of and from motor vehicles and two commercial burglaries.[36]It is next necessary to say something about offending of this kind and, in particular, about ram raiding. Such offences are burglaries of a particularly serious kind. Miss Whitehouse has referred us to three relevant authorities. In R v Percy (1993) 14 Cr App R(S) 10, giving the judgment of this Court, of which the then Lord Chief Justice was a member, Macpherson J referred to the gravity of this kind of offending. He said:
"...inevitably cars are stolen and damaged. Property is damaged. An offence of this kind is an affront to the public who are present. Furthermore, there are risks that people would be injured in the commission of the crime and in the escape of those who go off in the high powered car which is always used as the getaway vehicle."
A sentence of 5 years, following a plea of guilty to burglary, for a single ram raid was upheld. The Court said:
"This was a heavy sentence, but it was heavy crime: much closer to armed robbery than ordinary theft."
[37]Lest it be thought that that contains a slight element of hyperbole, we refer next to the case of R v Byrne & Ors (1995) 16 Cr App R (S) 140. Again, the offenders were sentenced to 5 years' imprisonment for a single ram raid offence following pleas of guilty. We acknowledge that it was different in style from the offences in the present case, in that it was committed by older men who stole a JCB digger from a construction site and used it to remove an automated cash machine from the wall of a building society. Nevertheless, Lord Taylor CJ took the opportunity to express some general views about ram raiding offences, which he described as prevalent and extremely serious. He added at page 142:
"The gravity can be stated in this way. First, it is almost always a composite offence: it involves the theft of other vehicles before the main theft is attempted. Secondly, it involves targeting a particular prize, and planning the offence with deliberation ... Thirdly, whatever may have been obtained by thieves by this method... there will almost always be serious damage to property ... A further aggravating feature is that this type of offence is aimed at defeating even the best security... It is a kind of military operation against whatever security precautions may be applied to any building. Finally, there is the element of breach of the peace. In middle of the night... there was an operation going on which roused people and put some of them in fear. It is an affront to civilised society; it is outrageous offence. It transcends the ordinary type of attempted theft."
[38]There, the references to theft as opposed to burglary, derived from the fact, perhaps generously conceded, that the attack on the automated cash machine did not involve entry to the building. Once again the sentences of 5 years were upheld. They were described as "not a day too long."[39]Finally, we refer to R v Richardson and Brown [1998] 2 Cr App R(S) 87. That involved a single ram raid offence, again with the assistance of a stolen JCB and lorry which were used to attack a cash dispenser. His Honour Judge Clarke QC, as he then was, referred to Percy and to Byrne & Others. He described sentences of 5 years, following pleas of guilty as "richly deserved." He added that at page 90:
"A real differential should in our judgment be maintained between even domestic burglaries of some gravity and determined commercial burglary of this sort on a bank, with vehicles and equipment such as were used in this offence."
He later added that the sentence after a trial would have not yet been less than 7 years.[40]We accept that there are differences between those cases, particularly the latter two, and the present case but they are not necessarily differences which bespeak a difference in approach to sentencing. What can be characterised as sophistication in the latter two cases, may have been absent in the present case but, in another sense, that was more than made up for by the sheer persistence, aggression and recklessness of the offences which underlay the indictment with which we are concerned. We have considered those authorities. They seem to us to suggest that in the context of a single ram raid offence, a starting point in the region of or approaching 7 years, following a trial, is implicit in all of them.[41]In the course of her submissions, by reference to the document placed before the Court, Miss Whitehouse has referred to aggravating features in the present case. Of the five offenders all but Callaghan were on licence at the time of the commission of at least some of the offences. All were arrested during the currency of the conspiracy and released on bail but continued to offend whilst on bail. The damage to the property and the value of the property taken was high. The case was concerned with a plurality of offences committed over a period of 4 months. They reflected a significant degree of planning and were carried out, indeed, could only been carried out by a group acting together.[42]She submits that the mitigating factors were really limited to the timeliness of the pleas of guilty, for which full credit was due and the relative youth of the offenders who were aged between 18 and 22 at the time of the commission of the offences.[43]Neither Miss Whitehouse nor any of the counsel representing the offenders has suggested that the judge fell into any error in the differentials imposed in the sentencing of the five offenders. The key question is whether the sentences were unduly lenient because the judge simply underestimated the gravity of the offences and started with an imputed starting point which was too low.[44]Before we say any more of that, there is another aspect of the case which has been the subject of some debate at the Bar. Miss Whitehouse submits that these being offences of conspiracy, each of the offenders bears some responsibility for the offending of all the others, even when his role was more limited. She, of course, accepts that in the case of an offender who was unavailable for a period of the offending, by reason of being outside the country or in custody, that illustrates a reduced involvement, but she still advances the proposition to which we have referred in general terms. She does so by reference to Attorney-General's Reference Nos 52 and 53 of 2006 (R v Toth and Rance) [2006] EWCA Crim 2571, where this Court, presided over by the President of the Queen's Bench Division, was concerned with a spate of offending over a period of time, subsumed under the charge of conspiracy. Giving the judgment, the President said at paragraph 9:
"We shall, of course, look at the individual offences admitted by each of these offenders in the basis of plea, but we must emphasise at the outset that this was a wide-ranging conspiracy, in which there were a number of young men, who came together to terrorise -- no other word will do -- victims who happened to be chosen. For some time this group of young men was completely out of control, on the rampage, committing violent crime, and no doubt as each crime was committed, it encouraged them to commit the next one. The sentences on the individuals should reflect not only their participation in specific offences, but their involvement in the conspiracy, in the broadest sense. In brief, therefore, for as long as he was party to the conspiracy each conspirator sustained and supported the other conspirators in the crimes in which they did not personally participate. It was, truly, a conspiracy in the broadest sense."
[45]Miss Whitehouse invites us to take a similar view of this case. Counsel for the offenders draw our attention to Attorney-General References Nos 60 and 67 of 2006 (R v VC and VR) [2006] EWCA Crim 2777 and by reference to paragraph 10 of the judgment of Hughes J invite us to categorise this case differently from the way in which the Court approached the conspiracy in Toth & Rance.[46]In the absence of the matters to which we shall shortly refer, it seems to us that there would have been every justification for treating the case precisely as the President treated the case in Toth & Rance. However, it is difficult to escape the impression in this case that there was at least tacit understanding between prosecution and the defence that the case should be approached on the basis of limited admissions of involvement in particular offences by specific offenders. No Newton hearing was sought and the judge appears to have acquiesced in that approach. For that reason, we restrain ourselves from approaching the matter in precisely the way described in Toth & Rance but nevertheless that ultimately provides little benefit to these offenders because, on any basis, we have to deal with them, in each case, on the basis of repetitive involvement in offences of this kind. We have already indicated precisely who accepted what. They all carried out this grave saga of offending, with multiple overt participations and there were the aggravating features, including offending whilst on licence and re-offending whilst on bail, to which Miss Whitehouse has referred and we have detailed. Thus, although we do not approach these young men on the basis that each of them was responsible, to some extent, for every offence committed in the sequence of events, and we take account, in particular, of the occasions when individual offenders were unavailable for offending either as a result of absence from the country or incarceration, nevertheless, it is readily apparent that this was multiple offending, repetitive offending on a grand scale. Therefore the benefit accruing from the classification of the case a little below that of Toth & Rance by way of the approach to conspiracy does not greatly benefit these offenders.[47]Having regard to all that we have said, we have no hesitation at all in concluding that the sentences imposed in Leeds were unduly lenient. Taking, as we do from the authorities, a starting point of or approaching of 7 years for a single offence, following a trial, that must be obvious.[48]We propose to accede to the application by the Attorney. We reject the submissions made on behalf of all offenders that the sentences, whilst lenient, were not unduly lenient and we reject the submission that even if they are unduly lenient, we ought not to interfere with them. In our judgment, even after so-called double jeopardy has been taken into account, these sentences fell massively short of the level which ought to have been imposed in each and every case.[49]We have taken into account the points made by counsel. They leave us with the clear impression, in all the cases, that the significant mitigation was that referred to by Miss Whitehouse, namely timely pleas of guilty and relative youth, although there are some small personal matters in relation to some, if not all offenders which we keep in mind even though it will no doubt be appreciated that they do not assist greatly in the fixing of the appropriate sentences.[50]We quash the sentences for the conspiracy in each and every case. In the case of Callaghan, in place of the sentence of three-and-a-half years' imprisonment, there will be a sentence of six-and-a-half years; in the case of Brattley, in place of the sentence of two-and-a-half years' detention there will be a sentence of 5 years' detention. In his case, we have specifically taken into account the fact that he alone of these offenders has been released from his sentence some 2 months ago. He therefore will have to return to prison and double jeopardy, in his case, is something to which more credit attaches than in any of the other cases where the offenders remain in custody.[51]In Boylan's case, the sentence of two-and-a-half years' detention will be increased to one of five-and-a-half years. There is a consecutive sentence of 4 months in his case and so the total becomes 5 years and 10 months.[52]In Buike's case, the sentence of two-and-a-half years will be increased to one of five-and-a-half years. In his case there is a consecutive sentence of 9 months and so the total sentence becomes one of 6 years and 3 months.[53]In Smith's case, the sentence of 2 years' imprisonment will be replaced by one of 4 years' imprisonment. We have accepted the principle of double jeopardy in all the cases, but for the reasons to which we have adverted, we do not think that any of those still in custody are entitled to a great deal of credit for that aspect of the case.[54]In the case of Brattley, the order of the Court will have to require him to surrender so as to resume his sentence.[55]MR BATISTE: Might I inquire if the same allowance is made under section 240 of the Criminal Justice Act for the time spent in custody.

MR JUSTICE MAURICE KAY: Certainly.

[57]MISS WHITEHOUSE: May I make a minor correction to your Lordship's judgment. Your Lordship suggested that in the case of Buike he had been given a consecutive sentence of 9 months' imprisonment, in fact it was one of 6 months' imprisonment, so his total sentence is therefore one of 6 years, in my submission. Would your Lordship specify the time by which Mr Brattley should surrender.

MR JUSTICE MAURICE KAY: What is the usual order?

[59]MISS WHITEHOUSE: 24 hours.[60]MR JUSTICE MAURICE KAY: 24 hours. He is on home detention curfew and there is no difficult in his attending.[61]MR BATISTE: I cannot argue with the time period. The police station he would surrender to would be Killingbeck police station, in Leeds.

MR JUSTICE MAURICE KAY: Thank you very much.

[63]MR STUBBS: Can I come back to Buike and correct a direction of my learned friend. His sentence was two-and-a-half years with 3 months consecutive.

MR JUSTICE MAURICE KAY: Three months.

[65]MR STUBBS: The sentencing remarks at page 5 "the consequence in your case Buike aggravating vehicle taking, driving whilst disqualified, 23 years old, your sentence I think will be the same as others, two-and-a-half years conspiracy for the aggravated vehicle take short extra sentence of the 3 months driving while disqualified 3 months disqualified from driving 2 years and 9 months so two-and-a-half years with 3 months consecutive."[66]MISS WHITEHOUSE: That is entirely right.[67]MR JUSTICE MAURICE KAY: We make the correction. Thank you very much.

Cited in 1 later judgment