Delaney, R v [2010] EWCA Crim 988

Case No 200900391/B3[2010] EWCA Crim 988
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 16th April 2010
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE MAURICE KAY
MR JUSTICE ROYCE
MR JUSTICE NICHOL
Between
R E G I N ACrownv
Between
SHANE PETER DELANEY
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)
Mr E Bindloss appeared for Applicant
J U D G M E N T

LORD JUSTICE MAURICE KAY:

Shane

[1]Peter Delaney, who is now aged 38, stood trial in the Crown Court at Hull for two offences of burglary and four offences of taking vehicles without consent. All the offences related to two incidents of ram- raiding. He was unanimously convicted by the jury. The sentences he received were ones of 4 years and 8 years consecutive for the burglaries, with concurrent sentences of 6 months for the taking of vehicles without consent. There was an appropriate order for disqualification. He now appeals against those sentences which of course total 12 years' imprisonment. We have today granted leave for his appeal and we turn immediately to the facts.[2]Two ram-raid burglaries of commercial premises took place in August and November 2007. The first was at Misterton in Nottinghamshire and the second Kirton in Lindsey in Lincolnshire. In each case automatic telling machines (ATMs) were ripped away from buildings and taken away. On each occasion a stolen JCB was used to attack the building and a further stolen vehicle was used to effect a getaway. Just over £10,000 was stolen on the first occasion and approximately £88,000 on the second occasion. In addition considerable damage was done to the fabric of the building.[3]The conviction of the appellant was on the basis that he had carried out the offences with at least two accomplices having stolen the JCBs and the other vehicles specifically in order to do so.[4]The Misterton ram raid occurred in the early hours of 20th August 2007. A white Transit van had been stolen from commercial premises in Sheffield over the previous weekend, 20th August being a Monday. A JCB had been stolen from a site in Misterton over the same weekend. Shortly after 4 o'clock in the morning a milkman was delivering in Grovewood Road when he saw a white Transit van being driven in a suspicious manner. He then heard a loud crash and the sound of breaking glass and he saw at the Co-op premises a JCB with a metal object suspended from the jib which was swaying wildly from side to side. The JCB was moving fairly quickly and revving highly. The milkman had to move his milk float rapidly to avoid being hit by the swaying object. He then saw a Transit van speeding as if to catch up with the JCB. He observed that the front entrance doors to the Co-op had been completely smashed and he called the police. The entire incident was captured on CCTV but the perpetrators were heavily disguised.[5]Another witness was awoken by the noise. He looked out and saw the JCB being driven off and two men running after it before getting into the white Transit van. Soon after that, the Transit van stopped. Two occupants got out and fled. A police officer, who had received a radio call, gave chase but the offenders escaped.[6]The Transit van was searched. Smoked cigarette butts were found in the driver's footwell and nearby within the vehicle. These were not sent for forensic examination until 20th December 2007 but when they were, they were found to contain the appellant's DNA.[7]A crucial witness in the case for the prosecution was the appellant's ex-wife who bravely gave evidence. She described how following the arrest of the appellant on 19th December 2007, she had taken police officers to some woods about 10 minutes away, to show them where a ATM machine was hidden. She informed them that it was the one that had been stolen from the Co-op in August. The appellant had told her all about it and how the money had been shared out among the three offenders. He had described the use of the JCB and the Ford Transit van. A few days after the burglary she and the appellant had gone for a walk in the woods and he had shown her the whereabouts of the ATM at a time when it was covered up with leaves and bracken. She said he had spent his share of the proceeds on cocaine.[8]She also provided evidence about the second offence, which had occurred at the HSBC bank in Kirton in Lindsey. She said that the appellant had told her he was going to have the ATM machine from that bank. He had told her the night before the offence that he was going to steal it and, after the offence had been committed, he told her that he had indeed carried it out. He had made some preparations. He was in possession of a JCB key and there were balaclavas in the kitchen drawer. She knew about the use of a stolen Toyota vehicle which she had seen. The appellant had told her that the safe from the HSBC bank was in a field somewhere near her mother's home. He also told her that each of the offenders had received a third of the proceeds, referring to the sum of £27,000.[9]So far as the Kirton in LindseyHSBC offence is concerned, the JCB used on that occasion had been stolen from a building site in Gainsborough over the preceding weekend and a Toyota vehicle had been stolen from a private address in Sheffield. The offence was committed soon after 4 o'clock on the morning of Monday 19th November. A nearby resident was awoken by loud thudding noises. She looked out and saw the JCB being driven backwards and forwards, ramming the front of the premises. The JCB then reversed out, dragging the ATM into the street. There were other witnesses whose attention had been attracted but, again, no one was able to identify the perpetrators.[10]The JCB was abandoned on Spar Hill, from where it was recovered by the police. The burglars drove off with the ATM on the back of the Toyota. It contained £87,000. It had been filled up on the previous Thursday, but by the Friday afternoon the card slot had been put out of action by being blocked up, no doubt so as ensure the maximisation of the amount of money that would be in it at the time of the burglary. Again the burglary was captured on CCTV television but that could cast no light on the identification of the offenders. The damage on that occasion was very substantial, estimated at some £40,000 or more. As on the previous occasion a cigarette butt was recovered from the cabin of the abandoned JCB and was found to contain the appellant's DNA.[11]When his home was searched on 19th December, a camera and a drill were seized. These had been in the Toyota at the time when it had been stolen. Also a key which was capable of starting any JCB was seized from the kitchen cupboard, together with a copy of a newspaper reporting the burglary. In addition a newspaper report of a similar type of burglary committed at Dronfield in Derbyshire in 2006 was recovered. The Toyota was hidden in undergrowth in woods near where the safe compartment of the ATM from the Misterton burglary had been found.[12]At his trial the appellant gave an extremely dishonest account of his movements and activities and it was emphatically rejected by the jury.[13]The appellant had a substantial number of previous convictions, including convictions for burglary, theft, handling and taking vehicles without authority. But it is right to say that his previous offending came nowhere near the level of seriousness which was attained in the present case. The judge proceeded to sentence on the basis of carefully expressed sentencing remarks, based upon her conduct of the trial. It is plain that she had formed a very dim view of the appellant and we can well understand why. She described the burglaries as being carefully planned, professionally planned and professionally executed. She referred to many of the facts which we have just recounted as being indicative of professional planning and execution, adding:
"The only mistake you made was smoking in the vehicle."
[14]She based some of her observations on what had been said by Lord Taylor CJ in the case of R v Burn & Ors (1995) 16 Cr App R(S) 140. We do not need to repeat those remarks. They are highly relevant to offences of ram raid and these particular offences were particularly sophisticated examples of such offending.

The judge said:

"It is a kind of military operation against whatever security precautions may be applied and the fact that you were well practised in it is shown by the fact that the whole operation was concluded in a matter of some 20 minutes."
Again, reflecting the words of the Lord Chief Justice, she referred to the aggravating feature of the breach of peace involved in the middle of the night and how offences such as this are "an affront to civilized society". She referred to the appellant's previous record as "deplorable", but did not exaggerate it because she added that it was "not the worst." She said, in our view entirely appropriately:
"...since you have committed those offences [that is the other offences] you have crossed the line from being a small-time thief into being a professional burglar and I propose to mark the sentences which I am going to pass by reference to that fact."
She then said that the sentences to be passed would be consecutive because two offences were completely different offences and were separated by a period of 3 months. She also said that she would have regard to the principle of totality. Having said all that, she passed the sentences to which we referred, passing the longer sentence on the second offence where the amount taken and the damage caused were more extensive.[15]In support of the appeal, Mr Bindloss first invites us to conclude that it was inappropriate for consecutive sentences to be passed in this case. We do not agree. There was no error in principle in passing consecutive sentences for two very serious offences of considerable sophistication, separated by 3 months. It is true that the appellant was not on bail at the time of the second offence but being on bail is not a prerequisite to sentences being ordered to be served consecutively.[16]Mr Bindloss then submits that the total sentence of 12 years is simply too long, having regard to the principle of totality. He suggested that the appropriate total in this case was 7 or 8 years. We unhesitatingly disagree with that quantification. In Attorney-General's References Nos 45, 46, 47, 48 and 49 of 2007 (Carl Kevin Callaghan & Ors) [2008] 1 Cr App R(S) 88, this court carefully reviewed the cases in which ram-raiding had been considered, going back to R v Percy (1993) 14 Cr App R(S) 10 and Burn & Ors, to which we have already referred. At paragraph 40 of the judgment in the Attorney-General's Reference, the court said that the previous authorities:
"...suggest that in the context of a single ram raid offence, a starting point in the region of or approaching 7 years, following a trial, is implicit in all of them."
[17]This is not a case of a single ram-raid offence. Moreover, it is a case where both offences were ones of high sophistication and professionalism. This appellant is a considerably more accomplished and ruthless criminal than were the younger and more reckless offenders who were before the court in the Attorney-General's Reference. We therefore reject Mr Bindloss' submission about the appropriate level of sentence. Nevertheless, we do accept that the total of 12 years for two offences of this kind, following a trial, was excessive. In our judgment, the judge approached the case on an entirely appropriate basis but simply erred in pitching the sentences as high as she did. We do not disagree with any of her comments or descriptions and we certainly do not disagree, as I have said, with the imposition of a consecutive sentence.[18]What we propose to do is to quash the sentences of 4 years and 8 years in this case and substitute for them sentences of 3 years and 7 years, those sentences to run consecutively and concurrently with the unappealed sentences of 6 months on the other counts. Accordingly the total sentence becomes one of 10 years' imprisonment, with the same order for disqualification and the same order for time spent on remand. To that extent the appeal is allowed.

Cited in 2 later judgments