AG Reference No 46, 47 & 48 of 2009 [2009] EWCA Crim 2591

Case No 200902646/2650/2649/A5[2009] EWCA Crim 2591
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 19 November 2009
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE SCOTT BAKER
MR JUSTICE OWEN
MR JUSTICE CRANSTON
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL'S REFERENCE NO 46, 47 and 48 OF 2009
Computer Aided Transcript of the Stenograph Notes of
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Mr J Evans appeared on behalf of the Attorney General
Mr P Cliff appeared on behalf of the First Offender
Miss C O'Reilly appeared on behalf of the Second Offender
Mr S Wild appeared on behalf of the Third Offender
J U D G M E N T

LORD JUSTICE SCOTT BAKER:

[1]The Attorney General seeks leave to refer the sentences imposed on Bowers aged 29, Rushton aged 42 and Clegg aged 26 as unduly lenient. We grant that leave. Each of the offenders was sentenced for robbery of a newsagent with an imitation firearm. The sentences were as follows: Rushton and Clegg four years with 12 months' concurrent for the imitation firearm; Bowers 18 months with 12 months' concurrent for the imitation firearm. Rushton was also given a three month consecutive sentence for being in possession of a prohibited weapon, namely a stungun, and Bowers received consecutive sentences of three and 15 months: the former for being in possession of a prohibited weapon, namely a CS gas canister, and the latter for assault occasioning actual bodily harm. Bowers' total was three years, Rushton's total was four years and three months and Clegg's total was four years, but it was the sentences in respect of the robbery and the imitation firearm to which the Attorney General's application has been directed. The sentences were all imposed by Mr Recorder Wasik in the Crown Court at Stafford.[2]The facts of the case are as follows. On 23 July 2007 Mr Ian Clarke was working in a newsagent's in Meir Heath, a village near Stoke-on-Trent. He was the manager of the premises and was working alone. At about quarter past 3 in the afternoon Bowers went into the shop. He had been driven there by Rushton and Clegg. They had given him an imitation handgun and told him to rob the newsagent's. Bowers remained inside for a few minutes. He bought a drink and then went out. After he left Mr Clarke served a number of other customers. A short time later Bowers went back into the shop. There were no customers inside and Mr Clarke was standing behind the counter. Bowers approached the counter, selected and handed to Mr Clarke some chewing gum and handed over some money. Mr Clarke briefly opened the till but closed it again when he realised he was about to be a robbed. Bowers demanded money in a calm manner. He reached into his trouser pocket and pulled out a black automatic style handgun with one hand. With his other hand he touched the side of the gun as if he was cocking the weapon. He held the gun in both hands and with both arms extended pointed it directly at Mr Clarke's face from a distance of some four feet. The gun was made of metal and was some 9 to 10 inches in length. To Mr Clarke there seemed something about the gun's general appearance that did not look quite real. Bowers told Mr Clarke that he "meant it" and demanded money. Mr Clarke was angry rather than afraid but decided not to take any chances. He told Bowers to take the money and he opened the till. Bowers came around the counter and took the money from the till. Mr Clarke could not see the gun and assumed the offender Bowers had put it down. Having taken some cash from till, Bowers left the shop telling Mr Clarke not to follow him. After Bowers left Mr Clarke looked outside and saw him running away down the road.[3]On 10 August 2007 Bowers' partner called the police to their home address. There Bowers admitted that he had recently committed an armed robbery. He was arrested.[4]The following day Bowers was interviewed under caution. He said he had been forced to commit the robbery. He owed a debt of £300 to a money lender. The sum with interest had grown to £2,500 because he could not afford to repay the debt. He and his family had been subjected to threats and intimidation. Rushton was collecting the debt and had made repeated threats to him and his family. Bowers said he had contacted the police about a month before the robbery in order to seek advice about the threats. This was true. He had been seen by a police officer on 26 June 2007. After Bowers called the police Rushton threatened to burn his house down and threatened to kill his family. He said that he had moved out of his address and gone into hiding. He understood that Rushton was watching his house and had followed his partner.[5]On the day of the robbery he had contacted Rushton to try and resolve the situation. Rushton picked him up in his car. Clegg was also with him in the vehicle. Rushton told Bowers that he had to commit a robbery to get some money and they drove around the area looking for somewhere to rob. Clegg knew what was going on and handed him a gun inside the car. Bowers told the police that he had never seen any handgun before. He assumed that the gun was real and not a replica and understood that it was not loaded.[6]The newsagent was selected and he was dropped nearby. He said that he walked into the shop, pulled out the gun and pointed it at the shopkeeper. He pretended to cock the gun in order to scare him. The man opened the till and he took £70 in cash. He left the shop and waited for the others. He denied telling the shopkeeper not to follow him and said he would not have hurt him. He called Rushton, who came to pick him up, and handed over the money. He gave the gun back to Clegg. He said he had committed the robbery because he needed to end the imitation for the sake of his family.[7]On 29 August 2007 Rushton and Clegg were arrested on suspicion of conspiracy to rob. Rushton was interviewed under caution. He accepted that he had approached Bowers and had demanded repayment of money owed by him, but denied threatening him. He admitted that he did some debt collecting work and had visited Bowers at his home address. They had been in telephone contact but he denied threatening any members of his family. He said he knew a man called Clegg but did not know his first name and did not have much to do with him. He denied any involvement in the planning or commission of the robbery. He said he was probably at work when the offence took place.[8]The same day the police searched the home address of Rushton and found a high voltage stungun inside a bedside cabinet. He was later charged with possession of a prohibited weapon.[9]On 20 November 2007 Rushton was re-interviewed under caution. He was asked questions about documentation that suggested he had been at work on the day of the robbery. He was unable to recall exactly what he had been doing and where he had been. He accepted that he knew Clegg but had not known that his name was Scott. They had done debt collection work together. He said that any telephone contact between him and Bowers would have been in connection with the debt that was owed. He could not recollect collecting Bowers by car on the day of the robbery.[10]Clegg was interviewed under caution following his arrest. He too denied any involvement in the planning or commission of the robbery. He denied knowing Rushton and denied ever being in possession of a firearm. He knew Bowers, who he claimed had supplied him with cocaine for which he still owed Bowers £170. He knew nothing about any debt owed to Rushton by Bowers.[11]He was re-interviewed under caution in November 2007. He said that since his first interview he had found out that the man he knew only as Frank was in fact Rushton. They did some debt collecting together. He would be paid for this work. He could not recall what he was doing on the day of the robbery and denied ever having met Bowers together with Rushton.[12]In early 2008 Bowers pleaded guilty to offences of robbery and possession of an imitation firearm at the time of committing an offence. Shortly thereafter he provided a witness statement to the police in relation to the robbery. This statement was later served as part of the prosecution's case against Rushton and Clegg. Bowers said that he had been living with his partner, Teresa Barton, and their three children. In June 2007 he borrowed £300 from a local money lender but soon encountered difficulty repaying the loan. The ownership of the debt passed on to other people.[13]By late June Rushton had assumed control of the debt which soon increased to over £2,500. In June 2007 Rushton began calling Bowers demanding repayment of the debt. Bowers struggled to repay the money. Rushton told him he should pay up or get shot. On 26 June 2007 Bowers contacted the police who visited him at his address. He explained the history and said he was very worried for his own safety and that of his family. He told the police that he had been instructed to sell drugs in order to repay the debt. He had agreed to do so but had changed his mind resulting in the debt increasing. While the police were at his address he received a call from Rushton and it was agreed that Bowers could repay the loan at £50 a week. Bowers told the police he was happy with this arrangement and declined to pursue a formal complaint.[14]Bowers soon ran into further difficulties. Rushton told him that the "big boys" were going to come down and "kneecap" him and said that he could only keep them away for so long. When they met again Rushton told Bowers that this was his last chance. Someone in a van also followed his partner and she also received telephone calls chasing the debt. Bowers went into hiding for a time. His partner received a call to the effect that their house was "going to go up" and she found that the letter box had been propped open. Rushton told Bowers that they needed to meet so that they could sort the situation out.[15]On the day of the robbery Rushton collected Bowers by car. Clegg was in the front passenger seat of the vehicle. Rushton told Bowers that he would have to sort the situation out. They drove to Rushton's house and Rushton left the vehicle. He removed an item from his garage, returned to the car and they drove away. In the car Rushton passed Clegg a black handgun wrapped in a towel. Rushton told Bowers that he needed to get the money and would have to have "somewhere off". Clegg passed him the gun. Bowers assumed that the firearm was real and was told that it was not loaded. He realised that the men were going to make him commit an armed robbery.[16]The men drove around the area looking for somewhere to rob. They stopped near a Spa shop. Bowers went inside but there were a number of customers there. They continued to drive round and found a newsagent in Meir Heath. Rushton drove a short distance away from the shop. He told Bowers to go into the newsagent's. He was told to commit the robbery and to call them afterwards so they could pick him up.[17]Bowers went into the shop with the gun hidden in his pocket. He thought there were some paper boys inside so he bought a drink and left. He said he waited outside for the boys to leave. After they had left he went back inside, took some chewing gum from the counter and as the shopkeeper opened the till he produced the gun and pointed it at him. He took some money from the till, left the shop and ran away. He could not find the car and telephoned Rushton who collected him by car shortly thereafter. He gave Rushton and Clegg the money and the gun and he was dropped off later. In the days after the robbery he spoke to Rushton about what had happened. Rushton threatened to give the gun to the police and tell his partner what he had done. Bowers told his partner what had happened and on 10 August she called the police and he was arrested.[18]Telephone evidence obtained by the police showed contact between all three offenders on the day of the robbery and around the time of the robbery itself. Cell site evidence showed that their telephones had converged in the general area of Rushton's address shortly before the robbery and those of Rushton and Bowers were in the general area of the robbery soon afterwards. There was no cell site evidence as to the location of Clegg's phone at that particular time. The evidence also demonstrated the high volume of calls from Rushton to Bowers and his partner in the aftermath of the robbery, calls which ended abruptly after Bowers was arrested.[19]On 15 February 2008, prior to the date of the trial, Bowers appeared before His Honour Judge Maxwell in the Crown Court at Stafford and submissions were made that Bowers was contemplating changing his plea to guilty and making a witness statement to assist the prosecution. When asked the judge declined to give a Goodyear indication but stated that if Bowers took this course he would undoubtedly receive a very substantial degree of extra credit. Bowers pleaded guilty to both the charges.[20]On 28 April 2009 Bowers appeared before Mr Recorder Wasik on three separate indictments to which he had pleaded guilty at various times. The first indictment related to the robbery of the newsagent. As to the second indictment, this contained a single count of possession of a prohibited weapon, namely a CS gas canister. In October 2007, while on bail for the robbery and firearms offences, police attended Bowers' home address in relation to an allegation of assault and found the gas canister.[21]In March 2008 he pleaded not guilty to this offence but changed his plea to guilty on 3 June 2008 when the case was listed for trial. He pleaded guilty on a particular basis. In September 2007, after he had implicated Rushton and Clegg, associates of both men visited his home address and work address in order to speak to him. He was in fear and obtained the gas canister from a third party for his own protection. This basis of plea was accepted by the prosecution and by the court.[22]The third indictment contained counts of assault occasioning actual bodily harm and criminal damage. These offences were committed on 17 April 2008 whilst he was on bail. Bowers had attacked his partner, Teresa Barton. During a drunken argument he repeatedly punched her to the head and body causing her to suffer multiple bruising, a broken nose and a broken finger. He also broke her mobile phone when she tried to call a friend for help. The victim had summoned the police by using an emergency alarm which had been installed at the address in relation to concerns for the safety of Bowers. Bowers pleaded guilty to both offences at a plea and case management hearing in July 2008. He pleaded guilty on the basis that he had caused all the victim's injuries by punches and not kicks. This basis of plea was accepted by the prosecution and by the court.[23]Rushton and Clegg appeared for sentence having been convicted after Bowers had been sentenced on 28 April 2009. Rushton also fell to be sentenced for possession of a stungun in August 2007. He pleaded guilty to that on the basis that he had bought it because his wife was alone at home when he was working at night.[24]Bowers has three previous convictions, none for violence. In 1995 for taking and driving away a motor vehicle he was fined, in 1996 for theft he was fined and in 2000 for criminal damage he was ordered to pay compensation.[25]Rushton has three previous convictions of which one was for violence. In 1986, which we emphasise is a long time ago, for assault occasioning actual bodily harm, he was fined and in 1997 for criminal damage and careless driving he was also fined.[26]Clegg has several previous convictions including one for violence. In 2005 for disorderly behaviour he was given a conditional discharge. In 2006 for assault occasioning actual bodily harm and disorderly behaviour he was given a community order. He appeared again before the court for further disorderly behaviour in 2007.[27]In the case of both Bowers and Clegg there were the following aggravating features of the robbery. We summarise:(1) it was pre-planned;(2) an imitation firearm was used;(3) a vulnerable small business was targeted;(4) the victim was in a vulnerable position because he was serving the public as a lone shopkeeper; and(5) the firearm was pointed at his head from very close range.[28]Those five aggravating features all apply equally to the offender Rushton, but in his case there was the additional aggravating feature, namely that he had subjected Bowers to a concerted campaign of threats and intimidation and he was the person who was primarily responsible for pressurising him into committing the offence of robbery with the imitation firearm. It was pressure which has been identified and is common ground was significant pressure, but, nevertheless, falling short of what would have amounted to a possible defence of duress.[29]In mitigation so far as Bowers was concerned he had the plea of guilty, albeit not at the earliest stage but only after he had been given a clear indication that there would be a substantial discount from his sentence in the event of the assistance which is apparent was given towards the conviction of his co-defendants. He also had the mitigation of having been pressured into committing the offence in the circumstances we have described preceded by the threats and intimidation.[30]In respect of Rushton Mr Cliff concedes that the total sentence of four years and three months was lenient, but he submits it was not outside the range appropriate for this case when one takes into account all the factual circumstances. He forcibly submits that the learned judge was in an unique position to assess the weight to be given to Bowers' evidence because he presided over the trial and, he points out, it was very much in Bowers' interest not to understate the influence that Rushton had had on his life and involving him in the offences.[31]It is not entirely clear how far, and this is part of Mr Cliff's submission, the learned Recorder accepted or rejected Bowers' evidence because the judge did not say so in his sentencing remarks. It is, however, plain from the observations that he made when passing sentence on Bowers that he regarded the impact of Rushton as having been very considerable in relation to Bowers' involvement and his life prior to the commission of the offence.[32]Mr Cliff also makes the point that a number of what he describes as common aggravating features of this kind of robbery were not present in this case. For example, there was no physical harm to the victim, he was angry rather than afraid, and the offences were committed in daylight and only a small amount of money was taken. Put in summary, what he says is that a lot of the features that take the case to the top of level 2 were not present.[33]Then he said that the personal mitigation for Rushton was strong. He is 42 years of age. He has no previous convictions for anything like the present offences, that is involving robbery or weapons. The pre-sentence report described him as having a low risk of reoffending. He was a committed hard worker, a good family man. He had been in full-time employment throughout the whole of his adult life and he had references which painted a far better picture of him than the bald facts of the case. Finally he submitted that Rushton had made good progress in prison. There were positive reports. He is a trusted prisoner and, in summary, that the sentence was not so lenient that this court should interfere.[34]Miss O'Reilly on behalf of Clegg made a similar submission. Her bottom line also was that, although this was a lenient sentence, it was not unduly lenient. Further, she submits that the judge should have distinguished Clegg's position from that of Rushton because of the important additional aggravating feature in Rushton's case. Further, she submits that there was limited involvement by Clegg, only on the day of the offence, and that he was a secondary party as he never went into the shop in question. She points out that his past is of very limited relevance to sentence in this case and that he, too, has positive references. He has coached very young children, also helped the elderly and has been making the best of his time in prison.[35]Mr Wild on behalf of Bowers also makes the submission that while 18 months for these offences might be considered lenient that it was not unduly so. He says, and he is obviously right about this, that the offences were not pre-planned by him. He also submits that the court must have in mind the totality of the three year sentence that was passed, including the penalties on the other two indictments, and that because of his fear and concerns Bowers has had to move from where he lived and start his life afresh, and, perhaps most importantly of all, he was released from custody some two months or so ago and it would be a very harsh penalty indeed (and this is really a double jeopardy point) to send him back to prison now.[36]The learned Recorder in sentencing Rushton and Clegg rightly directed himself that the range from the Sentencing Guidelines document was in the region of two to seven years and that the starting point was one of two years. We will not refer in any detail to the Guidelines but suffice it to say that it is common ground that this fell into the category, as identified by the Recorder, as a level 2 offence.[37]Unfortunately, however, the Recorder, having started with the correct approach did not identify any of the aggravating features of the offence here that were relevant to the present case but mentioned in respect of both of Rushton and Clegg that they had good references and that there were positive attributes about them, for example, that Rushton had a full-time job and had always been in employment, Clegg likewise and had done voluntary work. He said that Clegg played a slightly lesser role in the offences, but, on the other hand, had a somewhat poorer record. The learned Recorder did not identify how he alighted on his final point of four years' imprisonment. Merely,indicating that it was a Sentencing Guidelines Council starting point and also, as far as he was concerned, his end point.[38]It is fair to say that the Recorder does not appear to have been referred to any of the relevant authorities for sentences for this kind of offence. We cannot emphasise too strongly that the Sentencing Guidelines Council's Guidelines are a starting point and it is crucially important that they should be carefully applied in relation to the particular facts of the individual case.[39]As to the authorities we refer briefly to some of those to which we were referred. In the first place, in the case of Razack [2008] EWCA Crim 954 a 24-year old pleaded guilty to robbery with an imitation firearm and a sentence of seven years was reduced by this court to five years. It is relevant in that case that the firearm was not used, but it is also right to point out that there is likely to be a greater degree of fear when an offence is committed at night.[40]Then Tershalla [2008] EWCA Crim 1853, a 31 year old was convicted of robbery of a bookmaker with a loaded firearm. He received from this court, having overturned imprisonment for public protection, a determinate sentence of eight years. There were two other offenders involved.[41]Then the next case was Watkins [2007] EWCA Crim 2341. A 19-year old pleaded guilty to robbery with an imitation firearm and a sentence of four and three quarter years was reduced to four years. The starting point in that case of seven years' imprisonment was regarded as too high for a young man of the age of the offender in that case, where it was said that the starting point should have been in the region of six years. At paragraph 11 the court said:
"Several aggravating features identified by the guideline were present here: the offence was committed at night by a team of two; there was a strong element of planning; the offenders had with them a motor vehicle; each of them was armed with a replica firearm and each of them was disguised. The target was vulnerable, being a small convenience store, on the occupants of which actual force and the threat of force were used. Those occupants were frightened by their experience although no physical harm was done."
[42]We do not think it is necessary to refer to the case of Hope [2005] EWCA Crim 1990 in this judgment upon which some submissions were made because the offender in that case was significantly younger than those in the present case.[43]The final authority was that of Craig Darren Davies [2003] EWCA Crim 850 when ten years' imprisonment for robbery of an off-licence by a man armed with an air pistol was reduced to seven years. That was a case in which there was a plea of guilty but it seems to us that the facts of that case were rather different and, indeed, more serious than those of the present case. The court said at paragraph 12 that:
"... for an offence of this kind a period of six to eight years' on a plea of guilty is the normal range of sentence for a crime in which a firearm or other weapon is used, and where otherwise there is a mixture of mitigating and aggravating features but also an absence of the full range or more serious aspects of aggravating features which can occur in cases of this kind."
[44]Where does that leave us in the circumstances of the present case? It is, as we have said, regrettable that the Recorder did not identify the particular aggravating features that were relevant in this case. He simply referred to the guidance in the Council's Guidelines which identified common aggravating features.[45]In our judgment, the most serious aggravating features in the present case were (a) that an imitation firearm was used at close range and (b), and this applies to Rushton but not to the other two offenders, the circumstances in which he had harassed Bowers and caused him to participate in the robbery.[46]We are satisfied that the sentence imposed on Rushton was unduly lenient. The total that we think was appropriate for his involvement in this robbery following a trial was one of seven years' imprisonment. There was, of course, also the consecutive three month sentence which is not directly under consideration. The judge passed a sentence of four years' imprisonment and three months' imprisonment, whereas, in our judgment, he should have passed a sentence of seven years and three months' imprisonment. Bearing in mind the feature of double jeopardy, we increase the sentence of four years and three months to one of six years and three months.[47]As to Clegg we are of the view that the starting point in his case following a trial would have been rather less than that appropriate for Rushton because he did not have the aggravating feature in his case, namely the involvement of Bowers, to anything like the same extent. We think that the right sentence in his case would have been one of six years' imprisonment following a trial. Bearing in mind double jeopardy, we increase the sentence that was unduly lenient in our view, which was four years, to one of five years' imprisonment.[48]That leaves the third offender Bowers. His position was very different from the other two. He had, of course, as a starting point the same aggravating features as did Clegg in relation to his offence, but the most important mitigating feature was, first of all, that he pleaded guilty, but additional to that is the fact of the assistance that he gave to the prosecution with regard to bringing the other offenders to justice.[49]We think that the Recorder should have started on the basis of the aggravating features at the same level as Clegg, but then there fell to be taken into account, in the first place, the very considerable assistance that he gave to the prosecution in bringing the other two to justice and secondly the fact that he qualified for perhaps not the full one-third discount for the plea of guilty, which was not made at the very earliest stage, but nevertheless a very significant discount. We do not propose in the present circumstances to go through any arithmetical exercise but suffice it to say that we have to come to the conclusion that the figure on which the judge alighted of 18 months for the robbery and the firearms offence, which was, of course, in addition to the 18 months for the other offences, was in the circumstances lenient, but not, looking at the whole picture, which indeed includes the sentences for the other offences, unduly so. We also have in mind that he had served a long period in custody before sentence and consequently has now been released and has been free for the best part of two months from that three year sentence, albeit he remains for the time being on licence. Accordingly we have come to the conclusion that we should not interfere with his sentence which should be allowed to stand.

LORD JUSTICE SCOTT BAKER: We are very grateful to all counsel in this case and each member of the court has commented that it is a long time since we have heard a case so impressively argued by all counsel in the case and we are extremely grateful to everybody for it.