Adeojo, R. v [2008] EWCA Crim 1552

[2008] EWCA Crim 1552

Case No 2008/1008/A8

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Friday, 27 June 2008

Strand

London, WC2A 2LL

B e f o r e:

LADY JUSTICE HALLETT

MR JUSTICE MACKAY

Venue THE RECORDER OF BIRMINGHAM

HIS HONOUR JUDGE CHAPMAN

(Sitting as a Judge of the CACD)

Between

R E G I N ACrown

Between

SIMON ADEOJO

RONALD MUGAMBWA

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Mr J Gubbay appeared on behalf of Adeojo

Mr P Douglas appeared on behalf of Mugambwa

Miss J Osborne appeared for Crown

J U D G M E N T

[1]THE RECORDER OF BIRMINGHAM: On 17th January 2008 at the Crown Court at Inner London, both these appellants pleaded guilty to a single count of robbery and on 7th February they were sentenced. Adeojo was sentenced to four years' detention in a young offender institution and Mugambwa to five years' imprisonment. Each was allowed credit for 120 days already served on remand pursuant to section 240 of the Criminal Justice Act 2003. They had a co-accused called Michael Benson, who was only 16 at the time of the offence and 17 when sentenced. He also pleaded guilty and was sentenced to a two year community rehabilitation order with a six month curfew and 60 days' attendance at an ISSP programme. The two appellants appeal with the leave of the single judge.

[2]The facts of the case are unremarkable, but we must keep in mind that the offence we are dealing with is one of robbery of cash in transit by a gang.

[3]At 11 o'clock on the morning of 8th October 2007 a Loomis security van made a cash delivery to replenish some ATM machines outside a branch of Asda in Charlton, South East London. A stolen car with an altered numberplate containing these two appellants, Benson and a fourth man who was never captured, arrived in the car park soon after the security van. Three of them got out of the car. One of them then confronted the security guard making the delivery. He grabbed hold of the cash box, saying to the guard "Give me the box, give me the bloody box" and tried to pull it from the guards' grasp. There was a struggle, at which point two of the other men involved approached and joined in wrestling the box from the grasp of the security guard. They ran back to the car and made their escape.

[4]The police were called and given the registration number of the car which was circulated. The car was spotted a few minutes later. Police officers gave chase and ultimately the car was abandoned by the robbers and the four men exited and ran off. Three of them, namely these two and Benson, were arrested nearby. The fourth succeeded in escaping capture. The cash box was found in the footwell of the car. It contained £25,000 and although attempts had been made to open the box those attempts had been unsuccessful.

[5]In opening the case in the lower court the Crown accepted that they could not ascribe any particular role to any of the defendants, but the learned judge made it clear that in terms of exact roles in his view it made no difference to sentence; all of them were present and participating. He took the view that it was a very amateurish cash in transit robbery but there must have been a degree of advance planning. There were no weapons produced and no violence used beyond that necessary to wrest the cash box from the security guard.

[6]Adeojo is now 20 but was 19 at the time of the offence. At that time he had not previously appeared before the courts but on 19th February, after he had been sentenced for the robbery, he was sentenced to four months' detention for an offence of threatening words and behaviour committed before the robbery.

[7]Mugambwa is 24. He has two previous court appearances. In 2005 he was conditionally discharged for theft. In 2006 for a further theft he was sentenced to serve two months' imprisonment and for breaching the conditional discharge received a further two months.

[8]By contrast, Benson, who was only 16 at the time of the offence, had not previously appeared in court at all. A pre-sentence report had been ordered in the case of Benson but there were no reports in respect of Adeojo or Mugambwa.

[9]The learned judge in passing sentence correctly in our view described the offence as one where the security guard had been robbed of a large sum of money, although weapons and excessive violence were not used, had those factors been present the sentences would have been much greater. He took the view the offence was extremely serious and that the security guard had been terrified. He drew a distinction between Mugambwa and Adeojo as contrasted with Benson because Benson was so much younger. He had pleaded guilty at the very first opportunity and was being sentenced on the basis of less involvement because of his basis of plea.

[10]The grounds of appeal claim that the sentence was manifestly excessive, that the judge failed to have regard to the definitive sentencing guidelines and that there was such a serious disparity between the sentence on these two appellants and that on Benson that it would cause them to suffer a sense of grievance and their sentences should be reduced to take that into account.

[11]Having said that he would allow the maximum credit to their pleas of guilty, it must follow that the trial judge set his notional starting point in the case of Adeojo at six years' detention and in the case of Mugambwa at one of seven-and-a-half years' imprisonment. The first question is whether that was excessive and secondly whether it fell outside the definitive guidelines published by the Sentencing Guidelines Council. We remind ourselves of the important features of the case. First, this was a planned offence. Benson was recruited to add to the numbers. No-one recruits so that an offence could be committed on the spur of the moment. Secondly, the getaway car was a stolen car with altered numberplates. There is no evidence that any of these appellants stole it, but it is a reasonable and proper inference to draw that they were using it because they knew it was stolen and under false plates. That means that there was some degree of sophistication involved and some earlier planning. Thirdly, some degree of planning was necessary to work out where and when the security guard would be delivering the money. Fourthly, when robbing a security guard delivering to an ATM machine the offenders were expecting to steal large sums of money. They were, if you like, playing for high stakes. Fifthly, violence here was unnecessary because the gang massively outnumbered the guard. Lastly, as has been conceded, the guard was a vulnerable person who earned his living by carrying and delivering large sums of money.

[12]The main parts of the Sentencing Guideline Council's Definitive Guidelines apply to street robberies, robberies of small businesses and less sophisticated commercial robberies. They describe those in this way:

"This category covers a wide range of locations, extent of planning and degree of violence including less sophisticated bank robberies or where larger commercial establishments are the target but without detailed planning or high levels of organisation."

By contrast professionally planned commercial robberies fall outside the definitive guidelines and the decision of this court in the case of Turner will still give authoritative guidance. The council recognised that in saying:

"The leading Court of Appeal decision on sentencing for robbery is the 1975 case of Turner. This focuses on serious commercial robberies at the upper end of the sentencing range but just below the top level - planned professional robberies of banks and security vehicles, involving firearms and high value theft, but without the additional elements that characterise the most serious cases."

There they point out that this court set a range of sentence in the region of 15 years if offences against security or post office vans were carried out with the use of firearms. The problem is that there is a huge jump from the sentencing range in the guidelines from an offence of Level 1 seriousness to the fifteen years contemplated in Turner. The range is so wide that it will often be difficult to gain much guidance from the guidelines.

[13]In our view this case falls short of the professionally planned robbery contemplated in Turner when firearms or other weapons are used, so we have to consider the definitive guidelines and assess the level of seriousness.

[14]Seriousness is classified at three levels. Level 1 involves the threat and/or use of minimal force. The offence includes threat or use of force for the removal of property such as snatching from a person's grasp, causing bruising pain and discomfort. The relevant seriousnes of a Level 1 offence depends(a) on the nature and duration of the force, threat or humiliation,

(b) the extent of the injury if any

(d) the number and degree of aggravating features.

[15]Aggravating features are listed at page 16 of annex A. That must be a list of potential aggravating features because it cannot be totally definitive, but we identify four of those as being applicable in this case: Planning, the fact that the offence was committed by a gang, the high level of profit they hoped to gain and the deliberate targeting of a vulnerable victim. We notice that when dealing with levels the court is entitled, if it regards the aggravating features as exceptionally serious, to move the case to the next level of seriousness. In this case we are strongly of the view that the number and gravity of the aggravating features lift the case out of Level 1 seriousness to the borderlines of Levels 2 and 3. As we have already observed, the sentencing range for a Level 1 offence is up to three years custody, for a Level 2 offence is two to seven years and for Level 3 offences seven to 12.

[16]Although no weapons were carried and no-one was injured, in our view the notional starting point taken by the learned judge of eight years for Mugambwa and six years for Adeojo were not excessive. The learned judge then made a proper discount for the pleas of guilty which resulted in fair and appropriate sentences.

[17]The further complaint made is that the difference between the sentence passed on Benson and the sentences on these two appellants is too great. It may be that Benson was very fortunate to receive a non-custodial sentence and his sentence might be arguably too low. However, he was only 16 at the time and therefore to be treated as a child or young person. When sentencing such a child or young person the court has to have regard to the welfare of the child. It is not a consideration when dealing with those over 18. Secondly, Benson had no previous convictions at all. Thirdly, his basis of plea, or at least those parts of it which were accepted, limited his culpability. It shows he had only been recruited that morning and that he had not known what was going to happen. He is to serve a community sentence but that involves an element of curfew and attendance on an ISSP programme which is regarded as the highest level of intervention short of custody.

[18]In our judgment the disparity can be explained and reconciled with principle. It does not in our view represent such difference that right-thinking people would think that something had gone wrong with the administration of justice. Others will understand that from time to time the court is not only encouraged to but entitled to show mercy to a young offender, particularly one who is less involved than the adults with whom he is to be sentenced. In those circumstances we find no merit in the argument put forward and the appeal is dismissed. Q