Jamieson & Anor, R v [2008] EWCA Crim 2761

No: 2008/2847/A9 and 2008/2848/A8[2008] EWCA Crim 2761
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 7th November 2008
Strand
London, WC2
B E F O R E:
LADY JUSTICE HALLETT DBE
MR JUSTICE KING
HIS HONOUR JUDGE PATIENCE QC
(sitting as a judge of the Court of Appeal, Criminal Division)
Between
R E G I N ACrown-v-
Between
NICHOLAS STEVEN JAMIESONJOHN MICHAEL JAMIESON
Computer Aided Transcript of the Palantype 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 P Kaufman (Solicitor Advocate) appeared for Appellant Nicholas JamiesonMr B Myers appeared for Appellant John JamiesonMr N Paul appeared for Crown
J U D G M E N T

JUDGE PATIENCE:

[1]On 26th November 2007 at the Stratford Magistrates' Court, the first appellant, Nicholas Jamieson, pleaded guilty to an offence of burglary in public house premises and was committed for sentence to the Crown Court at Inner London. On 2nd April 2008, at that court, he pleaded guilty to four offences of administering a poison or noxious substance with intent, contrary to section 24 of the Offences Against the Person Act 1861. In addition, he pleaded guilty to nine offences of theft and one offence of assault occasioning actual bodily harm. The second appellant, John Jamieson, his brother, pleaded guilty to three section 24 offences and seven offences of theft.[2]On 24th April 2008, each appellant asked the court to take into consideration a further eight offences of theft. The first appellant was sentenced to consecutive sentences of 2 years' imprisonment for each of the four section 24 offences, making a total of 8 years' imprisonment. He was further sentenced to six months' imprisonment for each of the nine offences of theft, which were ordered to run concurrently with each other but consecutive to the earlier sentence. He was further sentenced to six months' imprisonment consecutive for the offence of assault occasioning actual bodily harm and, finally, to a concurrent sentence of 12 months' imprisonment for the offence of burglary, for which he had been committed for sentence.[3]The second appellant, John Jamieson, was sentenced to consecutive sentences of 2 years' imprisonment for the three section 24 offences, making a total of 6 years' imprisonment, and to six months' imprisonment for the seven offences of theft, which were ordered to run concurrently with each other but consecutive to the earlier sentence.[4]In the event, the first appellant was sentenced to a total period of 9 years' imprisonment, less 150 days spent on remand, and the second appellant was sentenced to a total period of 6½ years' imprisonment, again less 150 days spent on remand.[5]The appellants now appeal to this court against their sentences by permission of the single judge.[6]The first offence in time was the offence upon which the first appellant was committed for sentence. It occurred at 6.45am on 21st October 2006, when he was observed by the manager of the Duke's Head public house in Barking Road, East Ham, as he looked out of the window, to be, with the aid of another man, taking items up through the premises' cellar hatch. The police were called, found the first appellant hiding in a cupboard and arrested him. At the same time they recovered a cordless drill and other related items. Two days later he appeared before magistrates and was granted bail.[7]During 2007 both appellants embarked on what can only be described as a systematic campaign of theft from shops in the Beckton Triangle Industrial Estate. They entered stores and stole items there and on a number of occasions sprayed acid in the face of members of the security staff who sought to confront them.[8]A particular shop, the Co-operative Store in East Ham, was targeted, as was the meat cabinet within that store, the result being that there was a considerable loss of profit sustained. The organisation of the shop was made more difficult and staff morale was considerably undermined.[9]The campaign began on 11th February 2007, when both appellants entered that store and stole meat products between £50 and £60 in value. They returned to that shop on 23rd June, this time at 9.30 in the evening, and again stole meat from the cabinet. When confronted by a security guard the first appellant sprayed acid in his face, causing him to sustain burns, which left marks and scarring on his face and on his left eyelid. His jacket was also damaged. He had to take eight or nine weeks off work and has remained anxious and self-conscious about the scarring with which he has been left.[10]Almost two months later, on 15th August, at quarter to nine in the evening, the appellants once more returned to the same shop and stole a similar amount of meat from the cabinet. A different security guard tried to stop them. The first appellant knocked the guard's glasses off and punched him in the face, causing him to sustain a bloody nose and a black eye. Both appellants then made off. The guard experienced a number of nose bleeds in the subsequent week and was very self-conscious about the facial bruising which he had sustained.[11]Three days later, both appellants and another man entered this time the Sainsbury's Savacentre shop and stole a plasma screen television there. The security guard on duty tried to stop them from leaving, and he was sprayed in his face with a liquid and let them go. The guard sustained burn marks on the left side of his face, including his left eyelid; burn marks between his eyes and on the bridge of his nose; in the centre of his forehead; on and under his chin; and on his right ear lobe. He was off work for nearly three months. He is a man whose confidence has been seriously undermined. He cannot work on his own and he is very self-conscious about the scars with which he has been left.[12]On 27th September and 23rd October each appellant again returned to the East Ham Co-operative Store and stole meat from that shop.[13]Two days after the second of those two visits, on 25th October, at half past five in the afternoon, they both entered the Argos store, intimidating staff by their aggressive behaviour and stealing two toy cars. A staff team leader held onto one of them and, while doing so, was sprayed in his face with acid. He sustained scarring to his face, forehead, ear, neck, lower jaw, chest and forearm, and needed skin grafts. He also sustained damage to the sight in one eye and has to wear glasses to prevent headaches. He feels anxious and nervous in the presence of strangers as a result of his experience, having been off work for a total of five months.[14]On 13th November, the first appellant and two other men in the afternoon entered the Blakeberry Chemist's shop and stole two toiletry gift sets.[15]Five days later, on 18th November, both appellants, again in the afternoon, entered the premises of JD Sports and stole items of clothing. They were confronted by members of staff outside the shop. A car pulled up and the shop staff ran after the appellants as they ran to that vehicle. One member of the staff again was sprayed in his face with acid. He sustained superficial burn marks to his forehead and left eyelid, and a small long-term scar to his left eyelid. He was off work for two weeks, but happily his self-confidence was affected to a lesser extent.[16]The appellants are respectively, in the case of the first, 23 years of age and, the second, 24. The first appellant has appeared before courts on 12 previous occasions for 23 offences, between the years 1999 and 2006. Those offences have involved largely theft and failing to surrender, and have received a range of different disposals. He has also been convicted on three occasions of burglary.[17]The second appellant has appeared in courts on 19 previous occasions for 32 offences, between 1999 and 2007. His record includes offences of theft, threatening behaviour, common assault and criminal damage, for which he has received various sentences, both of a non-custodial and a custodial nature.[18]The sentencing judge had the advantage of reading two pre-sentence reports and a joint letter written by both appellants. He was also supplied with letters and certificates from the CARAT team. Both appellants had committed these offences to fund their drug habits. They posed a high risk of reoffending. Each accepted responsibility for what he had done. Both had suffered in their early years from a family breakdown, which had led to an offending lifestyle and to the abuse of drugs and alcohol. Both appellants had taken steps while in custody to address their drug problems.[19]In his sentencing remarks, the judge said that each appellant would receive full credit for his guilty pleas, entered at the earliest opportunity. He described the offending as brazen and arrogant. The most serious aspect, he observed, was the acid attacks on members of the staff trying to stop them. He pointed out that the first appellant had been involved in four such attacks and one assault occasioning actual bodily harm, and that the second appellant had been involved in three such attacks. He described their conduct as wicked, having the potential for grotesquely disfiguring injury and, as in the case of one victim, the potential to cause permanent eye damage. He said that the offences were so serious that they had to be marked with substantial sentences to reflect public horror and deterrence. He did take into account the age of each appellant and the lack of previous violence in their records. He said it was scant mitigation that each was under the influence of drugs at the time.[20]In their grounds of appeal and before us today, it is contended on behalf of each appellant that the sentencing judge was wrong to make the sentences consecutive, that he failed to have regard to the principle of totality because the maximum sentence for each section 24 offence was 5 years' imprisonment and that therefore the sentences were manifestly excessive.[21]The court has been referred to a number of authorities, including R v Smith, 13th February 1975, and to the case of R v Cooper (1983) 5 Cr App R(S) 295 and in particular to a passage in the judgment of the court at page 296. There Watkins LJ said:
"It was wrong that three like offences should receive the identical term of imprisonment and those should be ordered to run consecutively. The principle of sentencing when there are like offences in the indictment is that the judge should pass a total sentence and then order each of them to run concurrently."
It is to be observed that in that case the three offences were ones of obtaining money by deception to a total sum of £105.[22]In our judgment, applying the principles to be derived from the cases, a sentencing judge should pass a total sentence which properly reflects the overall criminality of the defendant and the course and nature of the criminal conduct disclosed by the offences for which he stands to be sentenced, while always having regard to the principle of totality. However, the imposition of concurrent sentences for like offences may not be appropriate where, as here, the statutory maximum sentence for an offence prevents the proper reflection of these matters.[23]In this case, having regard to the statutory maximum sentence for a section 24 offence, the sentencing judge cannot be faulted for his approach to his sentencing task. The spraying of acid in the face of anyone, and in particular a vulnerable person such as a member of staff working in a shop, is a particularly cruel form of attack, which carries with it a very real, if not inevitable, risk of lifelong disfigurement and catastrophic injury. Those who carry out such attacks must expect to receive severe sentences, the purpose of which must be not only to punish them but also to deter others who might be tempted to act in this way.[24]The imposition of consecutive sentences here was fully justified to reflect the criminality of each appellant. The resulting total sentence in each case, although severe, is not such in our judgment as to offend against the principle of totality.[25]An additional point is taken on behalf of the first appellant that there was objectionable disparity between the total sentences passed on him and those passed on the second appellant which was not justified by any distinction in their respective roles or any other circumstances of the case. We disagree. The first appellant was sentenced for a total of 14 offences, while the second appellant was sentenced for a total of ten. Further, the first appellant was concerned in an additional section 24 offence and also an offence of assault occasioning actual bodily harm. These differences amply justified the greater sentence which he received.[26]This was, in the judgment of the court, a sustained campaign of criminal conduct of the utmost gravity, akin to robbery. The total sentences imposed on each appellant were neither wrong in principle nor manifestly excessive. These appeals against sentence must be dismissed.

LADY JUSTICE HALLETT: Thank you, Mr Kaufman. Thank you, Mr Myers, Mr Paul.