Considine, R. v [2008] EWCA Crim 1407

Case No 200801549/1551/A2[2008] EWCA Crim 1407
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 11th June 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE THOMAS
MR JUSTICE FORBES
MR JUSTICE RODERICK EVANS
Between
R E G I N ACrownv
Between
DANNY JOHN CONSIDINEIAIN SCOTT PARKHOUSE
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr S Coughtrie appeared for First AppellantMr R Atkins appeared for Second AppellantMr A Keeling appeared for Crown
J U D G M E N T

Mr Justice Roderick Evans: This is an appeal against sentence brought by leave of the single judge.

[2]On 6th March 2008, at the Crown Court at Warwick, these two appellants were sentenced as follows. On count 1 of the indictment each was sentenced to a term of seven years' imprisonment. That was an allegation of conspiracy to rob. Considine was sentenced to a consecutive term of one year's imprisonment on count 3, which was an allegation of witness intimidation. He was therefore sentenced to a total of eight years' imprisonment. Parkhouse was also sentenced for a failure to surrender to bail. For that offence he was given a consecutive term of three months' imprisonment. The total in his case therefore was seven years and three months. Count 2 on the indictment which lay against these defendants, and which alleged a further conspiracy to rob, was not proceeded with.[3]The robbery which was the result of this conspiracy was a particularly nasty offence. It involved three robbers. There was a third man who was charged in this indictment. He contested the allegation and he was acquitted by the jury.[4]The robbery took place late at night, some time between 11.30 and midnight on 14th November 2006. At that time the staff of a public house were in the public house having a late drink after the premises had closed to the public. The first that they knew of the robbery was a banging sound at the door. When they went to investigate, they saw three masked men smash their way into the premises. One of them had an axe, one a baseball bat, that had been used to smash the door down, and the third carried a Ghurkha kukri sword. The members of staff were terrified and made an attempt to run up stairs to the private areas of the public house to get away from the robbers. However, they were pursued. One of them, Mr Balmer, a trainee assistant manager, was told to lie on the floor. He had his wallet and mobile phone snatched from his pocket. He was dragged downstairs to the safe, which was kept in the cellar, and he was told to open it. The robber who was carrying the baseball bat said to him, "Don't try anything or I will smash your face." After the till kept in the safe had been emptied and the cash put into a cardboard box the robber with the bat again said to Balmer, "Open up the cash box or I will smash your face in and break your jaw." As he said that he had the bat raised above his head.[5]Another trainee assistant manager was told to hand over the phone by the man with the axe while the axe was held in the air. She was virtually hysterical. One of robbers said to her, "Don't worry, love, it will be all right up, I won't hurt you." But later one of the three men manhandled her and in the process she banged her head on the door frame. The kitchen manager was forced to hand over his phone. When he resisted, he was punched in the stomach. A waitress was forced to lie on the floor and she also had her phone taken.[6]The robbers stole in all some £5,550 in cash. They made their escape in a car which had been stolen on 8th November from a car park near to where Considine lived. That car was abandoned near the junction of the M69 motor way. They then tramped across the fields to a lay-by where they were picked up by a lady called Miss Hall who had become involved with Considine.[7]She subsequently revealed that in the hours, and possibly days, before the robbery the robbers had undertaken a reconnaissance of the public house and made trial journeys from Considine's home, in the centre of Coventry, to where the robbery was carried out. Miss Hall made a number of statements to the police about their involvement. For her assistance in driving them home she was cautioned. There was mobile phone evidence which was also able to establish the robbers' presence at the scene.[8]Knowing that Miss Hall had told the police about his involvement in the offence, on 21st April 2007 Considine rang her and whispered the word "whore" down the phone and then sang her a rap song which referred to a shotgun. She took that as an attempt to prevent her from giving evidence.[9]On 5th July 2007 Parkhouse was due to surrender to bail at the crown court but he failed to attend. A bench warrant was issued for his arrest. That warrant was not executed until early November 2007.[10]Considine is 24 years of age. He has numerous previous convictions including several for dishonesty, one of which was for a dwelling house burglary for which he received an immediate custodial sentence. He had one previous conviction for witness intimidation. That is in 1997 and he was fined £50. Parkhouse is 27 years of age. He too has numerous previous convictions many of which are for dishonesty. He too has served custodial sentences. He had four previous convictions for failing to surrender to bail.[11]In the case of each appellant there was a pre-sentence report which the sentencing judge had before him. Each report recognised the inevitability of a custodial sentence. In the view of the reporting officers there was in the case of each defendant a high risk of re-offending and of causing harm to the public. Again, in the case of each, it was the appellant's addiction to drugs that was at the root of his offending. In Considine's case it was reported that he minimised his action by stating that he had acted out of character as a result of the use of drugs. He accepted no responsibility for witness intimidation. Parkhouse was reported as expressing regret for his actions and was said to have some insight into the effect of his offending on the victims.[12]The focus of the appeal has, of course, been the seven year sentence for the offence of conspiracy to rob. Counsel on behalf of each appellant submits that, bearing in mind the entitlement of each appellant to credit for a prompt guilty plea entered in each case on what is taken as the first opportunity, the seven year term was outside the range of sentences set out in the Sentencing Guideline Council definitive guidelines.[13]At the hearing in the Crown Court the judge was very properly referred to those guidelines. In opening the case counsel who then represented the Crown said this to the judge:
"I know that your Honour is familiar with the sentencing guidelines on robbery. It is questionable as to whether it is relevant because it does state that it only has reference to less sophisticated commercial robberies, but if your Honour considers this is a less sophisticated commercial robbery, as you may well do, the submission of the Crown is that this is either a level 2 or a level 3 robbery. It involved a high degree of threatening behaviour and the use of weapons."
[14]The guidelines divide robberies into five categories, only three of which are directly addressed by Part 1 of the guidelines. Those three categories are, first, street robberies, or muggings, secondly, robberies of small businesses, and, thirdly, less sophisticated commercial robberies. Categories 4 and 5, that is violent personal robberies in the house and professionally planned commercial robberies, fall outside these specific guidelines in Part 1 and the guidelines which exist in earlier cases in this court are still relevant.[15]Level 2 of the guidelines referring to street robberies, robberies of small business and less sophisticated commercial robberies refer to robberies in the following terms. "A weapon is produced and used to threaten and/or force is used which results in injury to the victim." The starting point is given as four years and the sentencing range is two to seven years. Level 3 refers to robberies in those categories in which the victim is caused serious physical injury by the use of significant force and/or the use of a weapon. The starting point is given as eight years and the sentencing range of seven to 12 years' custody. We remind ourselves that the starting points, of course, set out in the guidelines are in respect of a first time offender who has pleaded not guilty.[16]Counsel before the sentencing judge, and indeed before us, submitted that these appellants and this robbery fell within the guidelines either at the top end of level 2 or the bottom end of level 3, and, giving credit for their guilty pleas, the sentence is manifestly excessive.[17]When addressed by counsel on where he should start his sentencing, the judge did not accept that this was a level 2 robbery. Indeed, he pointed out that this, if within the guidelines at all, would come within the level 3 because of the additional aggravating factors in this case. He had in mind, no doubt, the express statement at page 6 of the guidelines, that if the aggravating features are exceptionally serious the case may move from one guideline to a higher guideline. The additional aggravating factors identified in the guidelines are as follows:(1) more than one offender involved;(2) being the ring leader in a group of offenders;(3) restraint, detention, or additional degradation of the victim;(4) offence was pre-planned;(5) wearing a disguise;(6) offence committed at night;(7) vulnerable victim targeted;(8) targeting large sums of money or valuable goods;(9) possession of a weapon that was not used.[18]In this case there was a measure of restraint or detention of the victims in this public house and the public house was no doubt targeted because it was a vulnerable premises, easy pickings to men like these appellants, and also, of course, because a substantial amount of cash could be expected to be found on the premises. In all, some seven of those nine aggravating factors are present in this case, certainly enough to move a case from level 2 to level 3, if it ever was within level 2.[19]In our judgment, this case has the hallmarks of a professionally planned and executed commercial robbery. If that is the case, as we believe it is, then this case falls outside those categories of robberies dealt with in Part 1 of the definitive guidelines.[20]Whichever way one looks at this case, whether as a level 3 robbery, or a robbery which falls outside the guidelines in Part 1, it is quite clear, in our judgment, that a double figure sentence was the appropriate starting point. A sentence with a starting point of somewhere over ten years would clearly be appropriate. Giving full credit for the guilty pleas in this case, it cannot, in our judgment, be said that the terms imposed of seven years are manifestly excessive. Accordingly, the appeals are dismissed.