Langley, R v [2014] EWCA Crim 1284

[2014] EWCA Crim 1284Case No 201400723/A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 12th June 2014
Strand
London, WC2A 2LL
B e f o r e:
PRESIDENT OF THE QUEEN'S BENCH DIVISION
(SIR BRIAN LEVESON)
MRS JUSTICE PATTERSON DBE
SIR RICHARD HENRIQUES
Between
R E G I N ACrownv
Between
JOHN LANGLEY
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 R English appeared for ApplicantMr I McLoughlin appeared for Crown
J U D G M E N T
[1]MRS JUSTICE PATTERSON: On 29th November 2013 in the Crown Court at Luton the appellant was convicted of conspiracy to commit robbery. On 10th January 2014 he pleaded guilty to failure to surrender to his bail. He received sentences of 8 years' imprisonment for the conspiracy, 3 months' imprisonment for the bail offence to run concurrently and was disqualified from driving for a period of 5 years, under section 147 of the Powers of Criminal Courts (Sentencing) Act 2000. The appellant applies for leave to appeal against sentence on the count of conspiracy and in relation to disqualification from driving. He appeals against his sentence for the failure to surrender to bail.[2]The appellant appeared on a 14 count indictment with six others. He was convicted on count 1, on the basis that he was involved in six robberies. The robberies were the subject of counts 2 to 7 on the indictment. The appellant was the getaway driver on each of those occasions.[3]The facts are that a gang of robbers targeted Co-op stores and Ladbrokes betting shops based in and around the Luton area. The gang were responsible for 10 such robberies during 2012.[4]The first robbery which involved the appellant was on 29th January 2012 at about 21.00 hours. Two men entered the Co-op store in Birdsfoot Lane. Their faces were covered. One man jumped over the counter and told a member of staff that if she stayed out of the way she would not get hurt. The other man ripped away the cash boxes from under the tills. Approximately £300 was stolen. Both men ran from the store. Cell site evidence showed that at the time of the robbery the appellant's mobile phone was using a mast which covered the location of the Co-op store.[5]On 4th February two premises two-and-a-half miles apart were robbed within half-an-hour of each other. The first was a Ladbrokes betting shop in Hitchin Road, Luton. At about 19.40 a co-accused, Mr Gildea, and another man entered the shop wearing balaclavas. Both men were holding orange carrier bags which appeared to conceal guns. The first man shouted:
"Don't think about pushing the panic alarm, just open the door"
. The door was opened and two men went behind the counter and demanded the money. The shop worker, Mr Tole, opened the till and told the robbers that it contained all the money that the shop had. The robbers demanded the money from the safe. Mr Tole recalled that threats were made regarding shooting. That made him think that the robbers had guns. He opened the safe which the men emptied and took the cash, which totalled about £430. Telephone evidence showed that the appellant was contacting his co-accused on the day of the robbery and again his mobile phone was using a cell site covering the location of the robbery at the time that it occurred.[6]The next robbery was at an another Co-op store on Birdsfoot Lane. CCTV evidence showed the same two men entering the store wearing balaclavas. One vaulted over the till whilst the second pointed to a handle and hammer in his pocket and told the staff to stay still and remain silent. The other man ripped the cash boxes from under the two tills. Once again the appellant was linked to the location of the robbery by cell site evidence. Some £1200 was stolen.[7]On 7th February, at about 20.05 the target was a Co-Op store in Dunstable. Two men entered the store, one wearing a balaclava and the other a face mask. A hammer was being carried. Both men went behind the counter, knocked off the cash safes and smashed open the tills. Between £3,000 to £4,000 was taken. Once again, on the day of the robbery the appellant's phone was in contact with his co-accused. Cell site evidence placed it in the vicinity of the robbery at the relevant time.[8]The final two robberies in which the appellant was involved took place on the evening of 11th February. The first was an attempt to rob a Ladbrokes store on Eaton Green Road. Two men entered the shop wearing balaclavas. Upon seeing them the shop worker, Mr Sherwood-Smith, ran into the rear office and locked himself in. One of the men was carrying a white carrier bag which appeared to have some kind of weapon inside.[9]CCTV evidence showed that one of the men pointed the object in the carrier bag at Mr Sherwood-Smith. The men repeatedly demanded that the shop worker open the door but he refused. The two men eventually left empty handed. Again, the appellant's phone was identified through cell site evidence in the vicinity of the robbery at the relevant time.[10]The robbers then moved up the road to the Co-op on Wigmore Lane. Two men entered the store and one jumped over the counter. He shouted at the shop worker not to do anything stupid. He kicked two cash boxes off the counter and handed them to his accomplice. One of the robbers was holding a screwdriver and pointing it at a customer who was with her 9-year-old son. The robber, however, allowed her to leave the store. The robbers stole £150. They left the shop and got into a car, the make and registration of which was noted by the shop workers. The vehicle was jointly owned by the appellant's mother and uncle.[11]Following the robbery, a text was sent by the appellant, using a cell site situated just around the corner from the Co-op to one of his co-accused.[12]The learned judge, in his sentencing remarks, expressed the view that the evidence that the appellant was the getaway driver in respect of each of the robberies was overwhelming. Each of the robberies was carried out in more or less the same way, which showed they were planned and not spontaneous. They were carried out at the end of the day. They took about a minute. The robbers knew exactly what they wanted and how to get it. In most of the Co-op robberies a real weapon was produced or could be seen. In the Ladbrokes’ offences the impression was given that the offenders had a gun. Had they not given that impression, they would have had no ability to get into the protected area behind the counter. Staff and customers were scared and frightened but no one was physically injured.[13]Under the Robbery Guideline of the Sentencing Guidelines Council this was a case, the judge held, that fell either within the guidelines for robberies of small business or less sophisticated commercial robberies. The offences all fell within level 2 where a weapon was produced and used to threaten, with the exception of the first in time, where no weapon was used. The robbery guidelines were for a single offence, carried out by a first offender, after a trial. Where multiple offences were concerned, then the sentence imposed had to reflect the overall criminality. For a single offence involving an imitation firearm, the starting point after a trial was likely to be in the order of 7 years. The fact that the amount of money stolen was small was not a mitigating factor where the intention was to take a full cash till at the end of the day. The judge accepted that the appellant's role as a getaway driver put him into a different category. However, the appellant carried out an important role.[14]The position in the Ladbrokes robberies was different from the others and aggravated by the impression that the robbers had guns. It was that which made the shop workers react in the way they did. A further aggravating factor in relation to all the robberies was the fact that there were two robbers each wearing facial disguises. The combination of two disguised men with weapons was an aggravating factor.[15]The appellant had a long list of previous convictions including robbery. There was no doubt that he was aware of the weapons and disguises being used. There was no doubt that he knew it was necessary to pretend to have a gun for the Ladbrokes robbery. However, he played a lesser role than those that had gone into the shops. The letter he had written to the judge showed a degree of insight into the position in which he found himself and of the problems relating to drugs that he had faced in his life. The judge accepted that the appellant felt remorse for those affected by his co-accused's actions and that he appreciated the seriousness of his position. He had a loving partner and she and his family would suffer.[16]The judge took as a starting point a period of 9 years' imprisonment for the conspiracy but because of the lesser role of the appellant reduced it to 8 years. The appellant had pleaded guilty to a breach of bail for which a sentence of 3 months' imprisonment was imposed to be served concurrently. As the driver of the car used in the course of crime he was eligible to be disqualified. Applying the relevant section of Powers of Criminal Courts (Sentencing) Act 2000, the judge was satisfied the appellant should be disqualified for an appropriate period which was 5 years bearing in mind the sentence imposed.[17]Before us three points have been taken. First, it has been argued that it was wrong in principle for the judge to sentence the appellant upon the basis that he had knowledge of, or involvement with, an imitation firearm in circumstances where there was no firearm count on the indictment. That was a settled and clear principle of law. Various cases are relied upon in support. Those include the cases of R v Guy 93 Cr App R 108, R v McGrath 8 Cr App R 372, R v Eubank [2002] 2 Cr App R 4 and R v Murphy [2000] 3 Cr App R 39.[18]The difficulty with that submission is that all of the cases relied upon were decided before the current Sentencing Guidelines Council Guideline on Robbery. The guideline makes it clear that in assessing the overall seriousness of the robbery one of the factors to be taken into account is the use of or presence of a weapon, even if not used. In determining which level of seriousness it is appropriate to attribute to the offence, level 2 expressly deals with where a weapon is produced and used to threaten or to cause a victim harm. Criterion (c) directs that regard is to be had to the nature of the weapon used, whether it is real, and if it was a real firearm, whether it was loaded.[19]Since the coming into effect of section 125 of the Coroner and Justice Act 2009, the duty of the sentencing judge is to follow guidelines unless it would be contrary to the interests of justice to do so. It follows that as part of the sentencing exercise now the judge is obliged, when sentencing for a conspiracy to rob, to have regard to whether a weapon was present and used or threatened to be used in terms of determining the level of seriousness of the offence in the resultant sentence.[20]In any event, taking into account the numbers of robberies involved here, the period of time during which the gang operated and the way in which they operated, it is our view that the sentence imposed by the learned sentencing judge was entirely appropriate. The sentencing judge's approach, which was to take into account the presence of a firearm in defining his starting point cannot be faulted. However, we do note that the Sentencing Guideline on Robbery is currently under review by the Sentencing Council. It would be appropriate for them to consider the interrelationship of the earlier authorities that have been relied upon in this case and the significance of them in relation to the formerly accepted principle that where a firearm is involved it should be charged as a separate count. However, as we have set out, in the particular circumstances here the ultimate sentence that the judge imposed having regard to the numbers of offences comprised within the conspiracy and the antecedents of the appellant was entirely appropriate.[21]Second, it is submitted that the sentence imposed for the Bail Act offence was manifestly excessive in light of the fact that the appellant surrendered voluntarily some days late and that there was minimal disruption to the trial which continued in his absence. The appellant had pleaded guilty at the first opportunity.[22]Those submissions totally ignore the criminal record of the appellant. In his extensive antecedents are five previous offences of failing to surrender to bail. They are clearly a serious factor which the learned judge was right to take into account and impose, as he did, a sentence of imprisonment within the appropriate range. Following the relevant sentencing guideline the starting point is some 14 days imprisonment with a range from a community order up to 40 weeks' custody.[23]Third, it is submitted that the power to disqualify from driving under section 147 of the Powers of Criminal Courts (Sentencing) Act 2000 is not available on conviction for a conspiracy and reliance is placed on the case of R v Terence Riley (1983) 5 Cr App R(S) 33. The case of Riley concerned disqualification under the Powers of Criminal Courts Act 1973 section 44(2). That reads:
"If in a case to which this section applies the Crown Court is satisfied that a motor vehicle was used (by the person convicted or by anyone else) for the purpose of committing or facilitating the commission of the offence in question (within the meaning of section 43 of the Act) the court may order the person convicted to be disqualified for such period as the court thinks fit from holding or obtaining a licence to drive a motor vehicle."
[24]The point that arose was whether, when there was a plea to a conspiracy, use of a motorcar facilitated the commission of the offence, namely the conspiracy. On the facts it was held it did not. Overt acts in which a conspiracy could be inferred did not in themselves amount to a conspiracy. There was, therefore, no jurisdiction to make the order.[25]That case, however, was distinguished in the case of R v Michael Devine (1990) 12 Cr App R 235, where the court held that an offender could be disqualified when he had used a vehicle in an attempt to avoid apprehension for a conspiracy. Having set out section 44(2) of the 1973 Act, the court then turned to section 43(2) of the Act. That provides:
"Facilitating the commission of an offence shall be taken for the purposes of this section and section 44 of this Act, to include the taking of any steps, after it has been committed for the purpose of disposing of any property to which it relates, or avoiding apprehension or detection."
[26]The court held that as the vehicle was being used for the purpose of avoiding apprehension and detection in relation to the conspiracy with which the appellants were charged the sentence had been properly imposed. It is of note that section 43(2) does not appear within the judgment in the case of Riley.[27]In this case the disqualification was made under section 147(6) of the Powers of Criminal Courts (Sentencing) Act 2000. That is in similar terms to section 43(2) of 1973 Act. The car being driven by the appellant was the getaway car, was clearly used to avoid apprehension and detection after the commission of the robberies and was used to take the property from the robbery away from the scene of the crime.[28]It follows that, in the circumstances of this case, the power to disqualify was exercised appropriately.[29]In any event the court had the power, under section 146 of the Powers of Criminal Courts (Sentencing) Act 2000 to, in addition to dealing with the appellant for the offence of conspiracy, deal with him by disqualification for driving for such period as it thinks fit.[30]Although a submission was made as to the duration of the disqualification, in the circumstances of this case we find that the length of the disqualification was entirely appropriate. In those circumstances we grant leave to appeal on grounds 1 and 3 but dismiss the appeal.