Waller, R v [2009] EWCA Crim 1096

Case No 2008/6954/A4[2009] EWCA Crim 1096
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 19 May 2009
Strand
London, WC2A 2LL
B e f o r e:
THE VICE PRESIDENT
(LORD JUSTICE HUGHES)
LORD JUSTICE ETHERTON
MR JUSTICE HOLROYDE
Between
R E G I N ACrownv
Between
SEBASTIAN WALLER
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Miss Brown appeared for Appellant
J U D G M E N T
[1]MR JUSTICE HOLROYDE: On 6th August 2008 this appellant pleaded guilty in the Crown Court at Peterborough to an indictment charging him on count 1 with conspiracy to rob betting offices and on count 2 with burglary and theft at a pharmacy. On 3rd December 2008 he was sentenced on count 1 to imprisonment for public protection with a minimum period of four years less the 81 days he had spent on remand in custody. No separate penalty was imposed on count 2. The appellant rightly accepts that the sentence of imprisonment for public protection was correct in principle, but by leave of the single judge he now appeals against the length of the minimum period.[2]The appellant was 24 years old at the time of the offences. He had already appeared before the courts on many occasions with convictions mainly for offences of dishonesty. Significantly his previous convictions included robbery and affray in July 2002, for which he was detained in a young offender institution for three years, and a further robbery for which in December 2004 he was sentenced to 47 months' imprisonment. In the earlier of those robberies, committed when he was 18 years old, he held a knife to the face of his victim and demanded cash. In the later, committed shortly before his 21st birthday, he entered a petrol station with his head and face covered, threatened the cashier with a meat cleaver and stole cash. He was on licence for that latter offence at the time of committing the present offences.[3]The plea to conspiracy to rob related to three offences of robbery or attempted robbery committed during the period of just over two months. All three involved what was clearly the planned targeting of bookmakers' premises at the end of the evening when the staff were in the process of cashing up. All three involved the appellant covering his head and face by way of disguise and carrying a large knife.[4]On 22nd April 2008 the appellant entered a bookmakers at about 8.50 pm and demanded cash from the manageress. He brandished a knife, the blade of which his victim estimated to be about 10 inches long. Terrified, she handed over about £650. The appellant demanded more and began to climb over the counter, but he was repelled by a courageous customer using a chair.[5]On 26th April, together with a man called Kelly, the appellant, again carrying but on this occasion not displaying a knife, went into another bookmakers at about 7.15 pm and demanded money. He left, however, when the cashier told him there was no money and, with impressive spirit, threw the empty till drawer at him to confirm her words.[6]On 29th April, again with Kelly, the appellant burgled a pharmacy in the dead of night, stealing items of stock valued at several hundred pounds.[7]Finally, on 1st May the appellant went into another bookmakers shortly before 8 pm and threatened two employees with a knife with a blade about eight inches long. He told one of them, to her great terror, that he was really going to hurt her. She handed over about £2,000. The appellant demanded more. When a further £2,000 was handed over he left.[8]He and Kelly were caught the following day, having been seen spending their criminal proceeds. On arrest, the appellant had over £1,000 in cash in his possession.[9]That brief summary of the facts suffices to make plain that the conspiracy to rob was a serious offence. Although no physical injury was caused, the appellant on each occasion covered his face, armed himself with a large knife and deliberately caused great terror to his victims. His offending was plainly planned, and was calculated to catch his target premises at the most vulnerable period of the working day. The offence was of course aggravated by the previous convictions. In particular it was aggravated by his two previous convictions for robbery involving the brandishing of sharp weapons and by his being on licence for the later of those previous offences.[10]The best point available to the appellant by way of mitigation was that he had entered guilty pleas at a time when he was entitled to full credit. The judge did indeed give him that full credit. The judge also took into account the signs in the pre-sentence report that the appellant was beginning to show some insight into the seriousness and the consequences of his offending.[11]In view of the realistic acceptance that imprisonment for public protection was correct in principle, we need not say anything more about the judge's assessment of the appellant's dangerousness, except to record that we entirely agree with his conclusion.

The judge began his sentencing remarks with the following words, with which also we agree:

"Those who carry out robberies of small businesses can expect custodial sentences. Betting shops require the protection of the courts, particularly from armed men; and particularly when threats of violence are made which cause terror and long-term harm."
The judge went on to say that in assessing the minimum period to be served he had taken a starting point of 12 years' imprisonment, which he had reduced by one-third to reflect the guilty plea. The principal submission made by Miss Brown before us today is that the minimum term is manifestly excessive and gave insufficient weight to the sentencing guidelines and the guilty plea. Counsel submits, and we agree, that each of the three robberies or attempted robbery was a Level 2 offence in the terms of the Sentencing Guidelines Council Definitive Guideline for Sentencing for Robbery, that is to say a robbery in which a weapon is used to threaten. As such, the suggested starting point in the guidelines is four years' imprisonment, with a suggested range of between two and seven years. It is pointed out in the written submissions to us that the judge's starting point here of 12 years is in fact at the top of the range suggested in the guidelines for a Level 3 offence, in which a weapon is used and serious injury caused. It must however be remembered that the guidelines are of course based on conviction after trial of a single offence by a first time offender. This appellant committed three serious robberies or attempted robberies and he was very far from being a first offender.[13]Our attention has been drawn to three recent cases: Vuillermet [2008] 2 Cr.App.R (S) 204, Razack [2009] 1 Cr.App.R (S) 17 and, perhaps most significantly, Sykes [2008] 2 Cr.App.R (S) 3. In Sykes, a case which we think was not cited to the judge below, this court reduced from seven years to five years the concurrent sentences on an offender who had pleaded guilty to three robberies of small shops, in each of which he had worn a mask and brandished a knife. Having regard to the sentencing guidelines this court took the view that an appropriate starting point would have been of the order of seven to eight years before credit was given for the pleas. Although that appellant had also committed three robberies, an obvious and important distinction between that case and this is that the appellant Sykes had only three previous convictions, all for unrelated types of offence.[14]We note that in the judgment of this court in Sykes reference is made to an earlier case, Attorney General's Reference No 149 of 2002 (Lockwood) [2003] 2 Cr.App.R (S) 94. The offender in that case, described as having "a bad record which does include robbery in the past", committed three robberies of small shops over a period of about one month. On each occasion he was armed with a large knife and accompanied by another man. He had been sentenced in a way which this court found to have been unduly lenient. This court indicated that the appropriate sentence, taking into account the circumstances of the offences and what were late pleas of guilty, would have been one of seven years. That case has a number of features of similarity to the present case, though it appears that that offender's previous conviction of robbery was not recent, and there is nothing to suggest that he was on licence at the relevant time.[15]Returning to this appeal, we fully understand why the judge took a very serious view of the case. Nevertheless, it does seem to us that the judge fell into error in taking too high a starting point and thus arriving at a minimum term which was manifestly excessive in length. In our judgment the appropriate starting point for the sentencing exercise in relation to count 1 would in all the circumstances have been one of nine years' imprisonment. Giving the like one-third discount for plea, as did the judge, and then halving the resultant term, would produce a minimum period of three years' imprisonment.[16]However, that is not the end of the matter because the appellant was, as we have said, on licence at the time of these offences. He was on licence for an offence of robbery committed on 15th October 2004 for which he was sentenced on 3rd December 2004 to 47 months' imprisonment. Although exact dates are not available to us, counsel on the appellant's behalf realistically accepts that there was something of the order of five to six months of the period of licence still to run when the appellant committed the first of the robberies encompassed by his guilty plea to count 1. Because of the date of the earlier offence and the date on which he was sentenced for it, the consequences of the appellant's reoffending whilst subject to that licence are governed by section 116 of the Powers of Criminal Courts (Sentencing) Act 2000, the repeal of which by the Criminal Justice Act 2003 has no effect in relation to offences committed before 4th April 2005 - see paragraph 29 of schedule 2 to the Criminal Justice Act 2003 (Commencement No 8 and Transitional and Savings Provisions) Order 2005, SI 2009 No 950. The judge therefore had the power to order the appellant to be returned to prison for the whole or some part of the remaining period of licence. The decision of this court in R v O'Brien [2007] 1 Cr.App.R (S) 75, especially at paragraph 67, shows that the correct way of exercising that power, if so minded, would have been to increase the notional determinate term by the relevant number of days. In our judgment there was and is no reason in principle why the appellant should not serve at least some part of the period of licence which was remaining at the time when he embarked upon committing further offences. Erring on the side of caution, it seems to us that the outstanding period of licence must have been at least 120 days. Following the approach indicated by this court in O'Brien, we think it appropriate to halve that figure and to add the 60 days to the three years that we have mentioned.[17]The result is that we are persuaded that the learned judge below fell into error and we accordingly allow this appeal to the extent that we quash the minimum period of four years and substitute for it a minimum period of three years and 60 days. From that should be deducted the 81 days which the appellant had spent on remand in custody. The result therefore is that the minimum period to be served is one of two years 344 days. Although we make that reduction in the minimum period to be served before the appellant may be considered for release on licence, and to that extent we allow this appeal, his sentence does of course remain an indefinite sentence of imprisonment for public protection.