Yohannes, R. v [2011] EWCA Crim 1362

[2011] EWCA Crim 1362Case No 201101278/D2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 13th May 2011
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE LAWS
MR JUSTICE LLOYD JONES
HIS HONOUR JUDGE GOLDSTONE QC
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
SIEM YOHANNES
Computer Aided Transcript of the Stenograph Notes ofQWordWave 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 B Gordon appeared for AppellantMr D Jupp appeared for Crown
J U D G M E N T
[1]MR JUSTICE LLOYD JONES: On 7th February 2011 in the Crown Court at Isleworth before His Honour Judge Winstanley the appellant was convicted unanimously of robbery, which was count 1 on the indictment. On 11th March 2011 he was sentenced to 12 months' detention in a young offender institution. He was acquitted by the jury on count 3, an offence of having an imitation firearm with intent to commit an indictable offence. The Crown had offered no evidence on the alternative count, count 2, having a firearm with intent to commit an indictable offence. He now appeals against conviction by leave of the single judge.[2]On 15th August 2010 the appellant met the complainant, Mr Joueid, having earlier agreed to purchase a watch from him. The appellant was accompanied by two men and the complainant was with his brother. Shortly after they met, one of the men produced from his waistband what appeared be a revolver. The appellant, who was at that time in possession of the watch, ran off with it followed by the two males. It was the prosecution case that at the point at which he ran off he also snatched the box belonging to the watch from the hand of the complainant. The pursuit was unsuccessful.[3]The prosecution case was that whilst the appellant was in possession of the watch, his friend, an unidentified male, who was referred to throughout the proceedings as "Mr X", had produced a revolver or imitation revolver and the appellant and his friends then left the scene with the watch and the box.[4]The defence case was that the complainant was not telling the truth and no revolver had been produced, but during the incident the complainant's brother had come towards him and the complainant had demanded money, that he panicked and believing that he was about to be attacked dropped the watch and left the scene.[5]There is one ground of appeal. It is submitted by Mr Gordon, on behalf of the appellant, that the conviction on count 1, robbery, is inconsistent with the acquittal on the imitation firearm offence, count 3. Mr Gordon points to section 8 of the Theft Act 1968 which provides that a person is guilty of robbery if he steals and immediately before and at the time of doing so and in order to do so he uses force on any person or puts or seeks to put any person in fear of being then and there being subjected to force.[6]It was the Crown's case at trial that one of the appellant's friends had drawn an imitation firearm during the street exchange and that the appellant and his accomplices had then run off with the watch and the box. It was agreed that the complainant had already handed over the watch by consent although he had not consented to its removal from the scene and it was suggested by the prosecution witnesses that the box had been snatched from the seller's hand after the weapon was brandished.[7]Mr Gordon points to the fact that apart from the allegation that the firearm had been brandished, the prosecution witnesses did not allege that any other element of force or threat of force had been employed by the applicant or his friends. Furthermore, he submits that it was confirmed in evidence that no oral threat of any kind had been issued and that no act of violence had been committed.[8]The Crown's case in respect of the robbery allegation was that the relevant force was the implied threat and brandishing of the imitation firearm. That was certainly the basis on which the judge left the matter to the jury. In his summing-up he said:
"...the prosecution must make you sure that Mr Yohannes, or someone in a joint enterprise with him, used force on Mr Joueid or put him in fear of being there and then subjected to force in order to steal from Mr Joueid immediately before or at the time of the stealing. Of course, what the prosecution refer to is the evidence of someone pulling out a firearm just before -- just at the time the watch was stolen."
The judge had already directed the jury that the Crown's case was that the appellant had committed both offences jointly with the other participants and he had given them a direction on joint enterprise which was on the lines of the first section of the standard Judicial Studies Board direction. He told the jury that if they were sure that the appellant, with the intention of committing these offences, took some part in committing them with the other men, he was guilty.[9]With regard to count 3 the judge directed the jury that the prosecution must make them sure, first, that Mr X had in his possession something that had the appearance of being a firearm and secondly, that Mr X intended to have the imitation firearm with him and at the same time had the intention to commit an indictable offence. The judge went on to say:
"The prosecution say that Mr Yohannes was part of a joint enterprise to commit the offence charged in Count 3, certainly with Mr X, the man who, the prosecution say, produced the imitation firearm."
[10]Against this background Mr Gordon submits that the conviction for robbery is unsafe, as it is inconsistent with the acquittal on the firearms charge. He submits that the appellant having been acquitted of jointly possessing the imitation firearm, the only element of force, or the threat of force has been removed from the allegation of robbery.[11]Before us today Mr Jupp, who appears on behalf of the prosecution but who did not appear below, says that it was open to the jury to convict the appellant of robbery on an alternative basis and that is that he had used force of a different kind by snatching the watch box from the complainant's hands. Here, he has drawn our attention to R v Clouden [1987] Crim LR 56. We note the observation of Professor JC Smith that the mere fact of snatching ought not to be considered sufficient for the offence of robbery to be made out. Be that as it may, it is not a matter on which we have to express any concluded view.[12]Even if one assumes for present purposes that that would be sufficient to establish the offence of robbery, in the context of this particular case it was not the basis on which the prosecution put its case. Accordingly the defence had no opportunity to deal with the point. Furthermore, the judge did not leave the issue to the jury on that basis. We proceed therefore in considering this appeal on the basis that the only force or the threat of force involved was the producing an imitation firearm to threaten. On that basis the appellant's argument involves the following steps: 1. He was convicted of robbery on a joint enterprise basis where the only force or threat of force was the use of the gun to threaten. 2. Accordingly he must have known that Mr X had a gun. 3. Therefore he must have been in joint possession of that gun with intent to commit an indictable offence.[13]We are persuaded that there is a true inconsistency between the two verdicts. We consider that having regard to the way in which the case was put by the prosecution and the basis on which it was left to the jury the appellant could not have been convicted unless the jury was sure that the appellant knew that Mr X had an imitation gun and that there was a joint plan to use it to threaten. It may well be possible to envisage various alternative theoretical bases on which the appellant might have been convicted of robbery without such knowledge, for example, the production of the imitation gun by Mr X without any prior knowledge on the part of the appellant but that was not the basis on which the case was put below.[14]Once it had been established that the appellant knew that Mr X had an imitation gun and was party to a joint enterprise to use it to threaten, it seems to us to follow that the appellant must, on a joint enterprise basis, have been in possession of that imitation gun, with intent to commit an indictable offence. On the authorities, that of itself would not necessarily make the conviction unsafe. The court will only intervene if it is satisfied that no reasonable jury, who had applied their minds properly to the facts of the case could have arrived at that conclusion. We have been referred by Mr Gordon to the decision of this court in R v Dhillon [2010] EWCA Crim 1577. However, we consider that the test is satisfied in this case. As my Lord Laws LJ observed in the course of argument, the verdict on the firearm point negatives the only relevant alleged threat of force. The conviction for robbery is therefore unsafe and must be quashed.[15]However, in these circumstances it is necessary for this court to consider whether it should substitute a conviction for theft. Mr Gordon realistically accepts that the jury must have accepted that this appellant was a party to the theft. In these circumstances, the appropriate course is for this court is to quash the conviction for robbery and to substitute a conviction for theft.[16]We then invited Mr Gordon to make an application for leave to appeal against sentence. We grant leave.[17]This appellant is a man of previous good character, and having regard to the very different nature of the offence of which he now stands convicted, we have come to the conclusion that the appropriate sentence is not a lesser custodial sentence but is one of a conditional discharge. Accordingly the sentence of 12 months' detention in a young offender institution will be quashed and a conditional discharge will be substituted.

LORD JUSTICE LAWS: Do we have to specify a period?

[19]MR GORDON: I think so. The maximum is 24 months.

LORD JUSTICE LAWS: Twelve months. My Lord is reminding me it has to be explained to the defendant by the court.

[21]Stand up would you. I hope you have understood the judgment that has just been given. Your custody sentence has been set aside so you will be entitled to be released. The court has imposed what is called a conditional discharge. That means that if you keep out of trouble for 12 month from the date of the conviction in the Crown Court -- from today. If you keep out of any trouble for 12 months from today you will hear no more about it. Do you understand? If however you commit another offence in that period you will be liable to be brought back and dealt with again for this one. Do you follow?[22]THE APPELLANT: Yeah.

LORD JUSTICE LAWS: If you have any questions ask your counsel after the hearing.

JUDGE GOLDSTONE:

[24]It must be today Mr Gordon because the conviction for which the sentence is imposed is today.[25]MR GORDON: My Lord, yes and that is why of course I had not applied initially for leave to appeal the sentence. If the robbery conviction stood then the year was a reasonable term to pass.

LORD JUSTICE LAWS: There we are. Thank you.