Eccleston, R. v [2008] EWCA Crim 110

No: 2007/5359/A1 2007/5594/A1 2007/5363/A1[2008] EWCA Crim 110
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 16 January 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE TUCKEY
MR JUSTICE SAUNDERS
MR JUSTICE COULSON
R E G I N A
v
MICHAEL ECCLESTON
JORDON GOLDSTON
AARON MILLER
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Miss A Morris appeared on behalf of Eccleston
Mr A Chalk appeared on behalf of Goldston
Mr T Wainwright appeared on behalf of Miller
J U D G M E N T
Between
EcclestonDefendantRCrown
[1]MR JUSTICE SAUNDERS: On 28th September 2007 the three appellants were sentenced to three years' detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. All the appellants were at that time aged 17. They had previously pleaded guilty on 31st August 2007 to an offence of attempted robbery and an offence of robbery at the plea and case management hearing. Both the attempted robbery and the robbery formed part of the same events.[2]The robbery was of an Argos store in Croydon. It took place on 14th July 2007. At 8.00 am in the morning the manager arrived at the store in order to open it prior to trading taking place. He was confronted by the three defendants. Their faces were hidden by hoods and scarves. It is apparent from what later happened that they were not the only people involved. There was at least one further person involved in the robbery who was in a car outside who was no doubt to act as the getaway driver and also acted as a lookout to warn the robbers if the police came on the scene.[3]They grabbed hold of the manager. They demanded access to the shop and they demanded to be taken to the safe which was in a back office. They frog-marched the manager by holding him by the collar to the safe. He was made to jump over the counter of the shop and unlock the cash office. One of the three men, and it cannot be said which of these three it was, was continually hitting him on the back of the head to make sure he complied with instructions which they were giving him. It will not surprise anyone to realise that the manager was extremely frightened for his own safety and felt he had no option but to comply with the instructions which were being given to him by these three.[4]Once in the cash office they demanded that he open the safe and give them the money. As it happens there was a great deal of money in the safe. The manager was unable to open it because it was governed by a time lock and therefore would not open. It is only due to the time lock being in operation that these robbers were not able to get away with a very large amount of money. They took the manager's mobile phone, no doubt to prevent him from calling for assistance. In fact he had been able to raise the alarm.[5]Once it became apparent that they could not get into the safe, the appellants demanded access to the CCTV controls - their intention no doubt to remove the tape to remove any evidence of they having been in the shop. They were unsuccessful in that because it turned out that the CCTV was digital and did not operate on a tape. As they could not get money, the appellants demanded PlayStations and they took a number, five of them. It may be that they were articles they would find easy to exchange for ready money and that was the reason why they took them.[6]They were interrupted in the course of the robbery because the lookout rang them on a phone to tell them that the police were arriving. They tried to escape but they were caught red-handed.[7]As we say, all of these appellants are 17 years of age. All have had some contact with the courts in the past, although for nothing of this seriousness.[8]What were the proper inferences that the judge was entitled to draw from those facts? He was entitled to draw the inference, in our judgment, that this was a carefully planned robbery. It would have required surveillance to take place to ascertain when the manager would arrive at the shop. They must have known before they went there that there was a safe in the premises and they no doubt would not have bothered to carry out the robbery at all had they not been assured, somehow, that money was kept in the safe and a significant amount of money. They were also fully aware of the CCTV and but for the time lock there is no reason to suppose that these three men with their accomplice outside would not have got clean away from those premises with a large amount of money.[9]In mitigation defence counsel - and we are grateful for the very clear and helpful submissions that they have made to this court - referred the learned judge to the sentencing guidelines for robbery which were published in July 2006. By section 172 of the Criminal Justice Act 2003, courts must have regard to those guidelines. It appears from the sentencing remarks that the learned judge on this occasion was not familiar with the way in which these particular guidelines worked. The robbery guideline does not cover all forms of robbery. It does not give a guideline for professionally planned commercial robbery, for example, but it does give guideline sentences for 'less sophisticated commercial robberies'. The very phrase "less sophisticated commercial robberies" raises the issue of less sophisticated than what? One is only left on the basis of the guidelines with it being less sophisticated than professionally planned commercial robbery. In the guidelines courts are referred for guidance on professionally planned commercial robberies to such authorities as R v Turner which deal with professionally planned armed robberies where sentences of 15 years are suggested.[10]On the basis that this case was a less sophisticated commercial robbery, defence counsel argued, and they were perfectly entitled to put this argument, that it came within level 1 - that is robberies where there is a threat of or use of minimal force. Because these offenders were 17 or under, the appropriate range of sentence as set out in the guideline would be a community order up to 12 months' detention and training order. Because that is the guideline on a plea of not guilty, counsel, again perfectly properly, submitted to the court that the appropriate sentence would be a community order. In our judgment, as will be apparent from the facts of the case as we have outlined them, that was in reality a very optimistic one indeed.[11]Although the judge does appear to have misread the guidelines, he expressed the view that he did not think this could really be properly described as a less sophisticated commercial robbery, but he also did not think that it really came within the same bracket as R v Turner for organised armed robbery and he took the view that it lay somewhere in between. He was perfectly entitled to take that view. In the case of Attorney General's Reference Nos 32, 33 and 34 of 2007 [2007] EWCA Crim. 1375, Hughes LJ said this:
"... the boundary between a 'less sophisticated commercial robbery' and 'a professionally planned commercial robbery' is plainly not a hard and fast one. There will be very many cases which could be regarded properly by the trial judge as falling into either category [or fall into neither category]."
That of course does not mean that the judge does not still have to have regard to the guidelines. But where he takes the view that it falls between those two descriptions, he is perfectly entitled to take that into account as a factor which may put it in a higher range of sentence. Further, the judge is perfectly entitled to consider the aggravating features in the case and in this case there were a number. There was more than one offender involved - there were in fact four, but three actually at the scene of the robbery itself inside the shop. The offence was pre-planned and in our judgment not "keystone cops" planning as has been submitted but properly and carefully planned. The offenders were wearing a disguise. There was, and the judge accepted, no evidence to support the prosecution that they were wearing Balaclava helmets, but they were wearing hoods and their faces were covered by scarves. It may be a small distinction for the victim whether the disguise is a Balaclava or a scarf covering the face supported by a hood over the head. They were targeting large sums of money.[12]Again, as is made clear from the guidelines themselves, the guidelines provide that where aggravating features are exceptionally serious the sentence can move up to the next level and if the judge were to put this within the bracket of a less sophisticated commercial robbery, he was perfectly entitled, in our judgment, to regard these factors as sufficiently serious to move it into a higher level.[13]The real choice facing the learned judge at sentence was whether this was a case which could properly be dealt with by way of a detention and training order, or whether it was necessary to impose a sentence of detention under section 91. The submission has been made to us that this sentence overall was too long, bearing in mind the pleas of guilty and the ages of the appellants. In our view, bearing in mind the nature of this offence as we have outlined it, it is not possible to say that these sentences were manifestly excessive and although, as we have indicated, the judge did not fully follow what was set out in the guidelines, in the event, the result cannot be properly criticised and accordingly the appeals are dismissed.