Yarboi, R v [2009] EWCA Crim 2760

Case No 200903409/A5-200903705/A5-200903654/A5[2009] EWCA Crim 2760
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 8th December 2009
Strand
London, WC2A 2LL
B e f o r e:
MR JUSTICE ELIAS
MR JUSTICE NICOL
HIS HONOUR JUDGE SCOTT-GALL
(Sitting as a Judge of the CACD)
R E G I N A
v
KIRK YARBOI
Essuman-Dadson
VINCENT MENSAH
Computer Aided Transcript of the Stenograph Notes of
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Mr N Beechey appeared on behalf of the Appellant Yarboi
Miss A Arnold appeared on behalf of the Appellant Essuman-Dadson
Mr S Willmer appeared on behalf of the Appellant Mensah
Mr I McLoughlin appeared on behalf of the Crown
J U D G M E N T
Between
YarboiDefendantRCrown
[1]MR JUSTICE NICOL: On 19th June 2009 Her Honour Judge Tapping sentenced these three appellants for their parts in the robbery of £11,530 from a cash in transit security guard. Essuman-Dadson had pleaded guilty on 18th March 2009. He was 16 at the time of the offence and is 17 now. He was sentenced to 3 years' detention in a young offender institution. Mensah pleaded guilty on 14th May 2009, shortly before trial. He was 24 at the time of the offence. His sentence was 4 years and 6 months' imprisonment. Yarboi, who was also 24 at the time of the offence, was convicted after a trial. He received 6 years' imprisonment. At the time of the offence he was also subject to a suspended sentence of 6 months' imprisonment for supplying cannabis. Judge Tapping activated 4 months of this to run consecutively. All three now appeal with the leave of the single judge.[2]The robbery took place outside the tube station in Willesden Green. The security guard was replenishing two ATM machines. This required him to make a number of trips between his van and the machines carrying a cashbox. On one of these journeys he felt the box being grabbed from his grip. It was Essuman-Dadson who had taken it and who then ran off. A police car happened to be passing. The security guard flagged it down and the officers gave chase. Essuman-Dadson was also spotted by a community support officer, who saw Essuman-Dadson climb into a Renault Clio car. This was driven by Mensah. The Clio had no registration plate on the rear of the car although the plates were on the back parcel shelf. The Clio drove off at speed.[3]About half a mile away Mensah and Essuman-Dadson abandoned the Clio and got into an Alfa Romeo which was waiting for them and was driven by Yarboi. The police car which had first been notified of the robbery had its lights flashing and sirens sounding. This startled the driver of a Mercedes, who began to reverse. As it happened the Alfa Romeo was now immediately behind and collided with the Mercedes. The officers in the police car stopped to question the drivers of the two cars but Yarboi drove off fast. He collided with a second car, this time a parked car, and drove around the block and found himself again confronting the police from the patrol car. They saw a pair of rubber gloves thrown out of the Alfa Romeo. The unopened cash box was found a little later on one of the roads through which the Alfa Romeo had driven. The three appellants were then arrested.[4]Essuman-Dadson made admissions on his arrest but claimed that he had been acting under duress from Yarboi. Cell site analysis of the considerable mobile phone traffic between the three appellants showed that this was unlikely and the judge discounted it. Yarboi and Mensah gave no comment interviews.[5]Yarboi's suspended sentence had been imposed for an attempt to pass cannabis in a SIM card to another defendant whilst they were both in the dock. On 29th September 2008 he had been sentenced for the drugs offence. The 6-month sentence of imprisonment was suspended for 18 months. He was also required to undertake 120 hours of community service. He had completed 51 hours at the time of the robbery. Yarboi had four previous convictions. The oldest, possessing a bladed article, had been committed when he was just 16 and led to an attendance centre order. Two offences of attempting to obtain property by deception had resulted in community punishment orders. We have already described the last which had led to the suspended sentence. He had not therefore previously received an immediate custodial sentence.[6]Mensah had seven previous convictions. They had all resulted in either financial or community penalties. None were for any acquisitive offence. Essuman-Dadson, although the youngest of the three, had the more serious criminal record. Nine months before the present offence a referral order had been imposed for possession of a bladed article. Just 1 month before the present offence he had taken part in a very similar attempted robbery. He was on bail for this offence at the time of the present robbery. He was sentenced to a 10 month detention and training order on 28th January 2009.[7]The judge acknowledged that no weapon had been used in this robbery. As she said, reliance was placed on the weapon of surprise. She said that considerable thought had gone into this robbery. The three robbers had come from the southeast to northwest London. She thought that there must have been some earlier observations to find out when the security van came to the station and the system that was used. An attempt had been made to disguise the Clio by removing its numberplates. A second and "clean" getaway car was ready and waiting. Rubber gloves were carried. It was only because of luck that the plot had failed.[8]All of these features led the judge to reject the submission that this case came within the category of "less sophisticated commercial robbery." In consequence the judge did not appear to find assistance in the Sentencing Guidelines Council's guideline for such robberies. The judge agreed that it was not a professionally planned commercial robbery either. She commented that the case illustrated the difficulties of rigid pigeonholing of criminal offending into boxes.[9]The judge treated the roles of all three appellants as indistinguishable. It was not possible to identify a ringleader and the driver of a getaway car was equally important to the enterprise.[10]The 6 year sentence on Yarboi, who had contested his guilt, shows that the judge took that as her starting point. He was in breach of his suspended sentence but she activated only two-thirds of that sentence to reflect the fact that he had completed about one-third of the unpaid work order.[11]Mensah's sentence of four-and-a-half years reflected his plea of guilty, not at the first opportunity but before the date of trial and other matters in mitigation.[12]Essuman-Dadson's starting point would have been higher in view of his previous conviction for a very similar offence and because the present offence was committed while he was on bail. Nonetheless, in view of his age, his early plea of guilty and the progress report following his detention, she reduced his sentence to 3 years in a young offender institution. The Alfa Romeo was forfeited and appropriate orders were made in respect of time spent in custody.[13]All three appellants focus their attention on the judge's unwillingness to apply the Sentencing Guidelines Council's guideline for less sophisticated commercial robberies. There are three levels or sentencing brackets in the guideline for this type of robbery. The lowest level is where the offence includes the threat or use of minimal force and removal of property. For an adult offender, with no previous convictions, who pleads not guilty, the starting point is 12 months with a sentencing range of up to 3 years' imprisonment. For a young offender the starting point is a community order with a range of up to 12 months' detention and training order.[14]Level 2 applies where a weapon is produced and used to threaten and/or force is used which results in injury to the victim. Level 3 is where the victim is caused serious physical injury by the use of significant force and/or use of a weapon. This grading of seriousness is consistent with the earlier part of the guideline which says:
"The factors to be taken into account in assessing seriousness are:  It is the element of violence that is the most serious part of the offence of robbery, but it is not the only determinative factor.  The relative seriousness of each offence depends on factors such as the degree of injury to the victim or the nature and duration of threats.  The degree of force used is important in determining the seriousness of the offence but the degree of fear which was experienced by the victim is a relevant consideration.  Use of a weapon or presence of a weapon even if not used."
[15]The guideline also identifies various aggravating and mitigating matters which may affect the precise sentence within a range. If the aggravating features are exceptionally serious, the Sentencing Guidelines Council says the case may move to the next level of seriousness.[16]In the present case the most obvious aggravating feature was that this was a preplanned, not an opportunistic offence. More than one offender was involved, but that too is a feature of this being a pre-planned offence. It was not the kind of offence which came within the Sentencing Guidelines Council's comment that "group offending will aggravate an offence because the level of intimidation and fear caused to the victim is likely to be greater." That was the position in R v Adeojo and Mugambwa[2009] 1 Cr App R(S) 66, where three gang members confronted a security guard and together wrestled the cash cassette box from his grasp. In this case only one person, Essuman-Dadson, took part in the actual snatch of the cashbox.[17]The Sentencing Guidelines Council says its use of the term "less sophisticated commercial robberies" is to cover "... a wide range of locations, extent of planning and degree of violence including less sophisticated bank robberies or where large commercial establishments are the target but without detailed planning or high levels of organisation." It contrasts these with "professionally planned commercial robberies", which are not further defined. The Sentencing Guidelines Council provides no sentencing bracket for this category but refers instead to existing Court of Appeal authority.[18]In the Attorney-General's Reference Nos 32, 33 and 34 of 2007 (Dean Bate) [2008] 1 Cr App R(S) 35, three defendants had carried out two robberies. In both cases the target had been consignments of cigarettes. In the one case they had threatened the driver to stay still or he would be hurt. In the second case the driver had been rugby tackled to the ground. No weapons were used but the defendants wore masks. The Crown conceded that these had been "less sophisticated commercial robberies". Hughes LJ, giving the judgement of this court said that the boundary between a "less sophisticated commercial robbery" and "professionally planned commercial robbery" is clearly not a hard and fast one and there were many cases which could fall within either. The court accepted that the Crown's concession in that case had been correct. The Crown had though argued that the sentences were too lenient, in part because the delivery drivers should have been regarded as vulnerable victims.[19]The Sentencing Guidelines Council says in its guideline, "Targeting the elderly, the young, those with disabilities and persons performing a service to the public, especially outside normal working hours, will aggravate an offence." The court said that the drivers of the cigarettes were not like any of these examples although they were on their own and were performing a service. It could be said that they were at a "low level of vulnerability".[20]In R v Hedlam [2008] EWCA Crim 2578, the appellants had pleaded guilty to a series of robberies from cash in transit vans. The trial judge had not expressly addressed the Sentencing Guidelines Council's guidelines but they featured prominently in the appeal. The prosecution had conceded that there was no elaborate planning and that the offending was opportunistic (see paragraph 23 of the Court of Appeal's judgment). The court expressed surprise at this. They thought there had been significant planning, in the sense that the roles to be played by each participant were determined before the robbery was committed and the robberies themselves were committed quickly and efficiently by a number of offenders who targeted what they hoped to be large amounts of cash. Nonetheless the court treated the offences as within the Sentencing Guidelines Council's third category, ie less sophisticated commercial robberies (see paragraph 20).[21]Hedlam illustrates what we would regard as any way obvious. Cases can come within the Sentencing Guidelines Council's third category even though there is some preplanning. The number of offenders involved in a "less sophisticated commercial robbery" can be an aggravating feature if they are indicative of planning. So too can the deliberate selection of disguises. The targeting of a victim is another aggravating feature. These are all characteristics which the Sentencing Guidelines Council intended could still be embraced within its third category. This third category is "less sophisticated commercial" robberies, not unsophisticated or opportunistic robberies. Bates' case shows that the boundaries between the third category and the professionally planned robbery is far from clear cut. We accept that.[22]In this case the features of the offence which the judge identified did show a level of preplanning which could justifiably have been described as more than minimal. Many "less sophisticated commercial robberies" will involve the targeting of a particular victim. The use of gloves to avoid fingerprints is hardly a sign of sophistication. But the removal of the numberplates of the Clio and the provision of a second clean getaway car, make this case rather more unusual. As the judge said, this case did not fit easily within any of the Sentencing Guidelines Council's categories.[23]However, having said that, we also consider that the judge did not pay sufficient attention to the Sentencing Guidelines Council's comment on "assessing seriousness", which we have already quoted. What distinguishes robbery from theft is the use or threat of force. It is what justifies a maximum sentence of life imprisonment rather than the 7 years' imprisonment which is the maximum sentence for theft. Here, the force which was used by Essuman-Dadson was minimal: only that which was needed to snatch the cash container from the hand of the security guard. It was a single robber who was involved. There was no intimidation from a group. There was no weapon, nor threat of force. Essuman-Dadson wore no disguise, a matter which the authorities recognised can be intimidating in itself.[24]If this had been a less sophisticated commercial robbery, the top of the range would have been 3 years' imprisonment. While the planning of this offence may have taken it out of this category, it is difficult to conclude that it was of such sophistication as to justify a starting point of double this maximum. We think it is of some significance that the Crown conceded before the judge this was a less sophisticated commercial robbery. That concession would not have bound the trial judge, but it is indicative of how close to the borderline this case was.[25]In our view, in all the circumstances the proper starting point would have been four-and-a-half years. Yarboi does have previous convictions but they are not of particular relevance to this offence. This is his first sentence of imprisonment. On his behalf it is argued that separation from his young daughter is particularly painful, but that is an inevitable consequence of committing an offence of this kind. We consider that the proper sentence for the robbery in his case would have been four-and-a-half years.[26]It is also argued that the judge offended the principle of totality by making the activation a part of the suspended sentence consecutive. We do not agree. The suspended sentence had been passed for quite different offending. The judge made an appropriate reduction for Yarboi's completion of part of the unpaid work requirement. There was nothing wrong in ordering the reduced part of the sentence to be served consecutively to a proper sentence for the robbery. Consequently, in Yarboi's case the sentence will be quashed and a total sentence of 4 years and 10 months will be substituted.[27]In Mensah's case the judge appears to have taken the same starting point and applied a reduction of some 25 per cent to reflect his guilty plea and other mitigation. With what we regard as the proper starting point, approximately the same reduction would lead to a sentence of 3 years and 5 months' imprisonment. Accordingly we quash his sentence and substitute 3 years and 5 months' imprisonment in its place.[28]In the case of Essuman-Dadson, we agree with the judge that if he had been an adult who had contested his trial, the starting point would have been higher than the other two, in view of the fact that he had very recently attempted to commit a very similar offence and was on bail at the time of this offence.[29]However, because of his age, his early guilty plea and other mitigation, the judge imposed a sentence that was one-half of the starting point. We consider that this was appropriate. In view of the starting point which we take, this means that after quashing the sentence imposed by the judge, we substitute a sentence of 2 years and 3 months in a young offender institution, pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000.[30]In each case we will make a like direction, as did the trial judge, as to the days spent on remand counting towards the sentence.

LORD JUSTICE ELIAS: Miss Arnold, with respect to your client, is there any order in place about publishing the name?

[32]MISS ARNOLD: My Lord, I believe he is now still under 18, so there is, I believe, yes.

MR JUSTICE NICOL: Was an order made at the Crown Court?

[34]MISS ARNOLD: I believe that there was, yes.[35]MR JUSTICE NICOL: Well, before we make any similar order, subject to what my Lord has to say in this court, we would want to know for certain what the position was in the Crown Court. If his name could be published in the Crown Court, it will be difficult for us to justify any anonymity restriction here. If there was a restriction on publishing his name in the Crown court, then a similar order would be likely to follow here?[36]MISS ARNOLD: If I could check with the prosecution?

LORD JUSTICE ELIAS: I see no reference to it in the summary we have, and there usually is if an order was made.

[38]MR MCLOUGHLIN: Nor I. While my learned friend has been addressing your Lordships, I have been through the record from the lower court and there is no record in amongst the other orders that were made at any stage of the proceedings of that order having been made. I cannot say, as I have said already, whether one--

LORD JUSTICE ELIAS: We are not at the moment inclined to make an order. You would have to make an application.

[40]MISS ARNOLD: Thank you.

Cited in 2 later judgments