Khan, R v [2017] EWCA Crim 440

Case No 201604236 A3[2017] EWCA Crim 440
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 6 April 2017
Strand
London, WC2A 2LL
B e f o r e:
LADY JUSTICE HALLETT DBE - VICE PRESIDENT OF THE CACD
MR JUSTICE GREEN
MR JUSTICE MORRIS
Between
R E G I N ACrownv
Between
MOHAMMED TAHMID KHAN
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedTrading as DTI8th Floor, 165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr J MacNamara (Solicitor Advocate) appeared for AppellantThe Crown did not attend and was unrepresented
J U D G M E N T
[1]On 8 April 2016, at the Central Criminal Court, the appellant pleaded guilty to two counts of conspiracy to commit robbery and possession of an offensive weapon. Two other counts relating to unlawful wounding were ordered to lie on the file against the appellant. The appellant was sentenced to 8 years detention in a Young Offender Institution in relation to the count specifying conspiracy to rob. No separate penalty was imposed in relation to the plea of guilty concerning possession of an offensive weapon.[2]On 9 March 2016, the appellant, together with two co-accused, drove to Lloyds Bank in Commercial Road London E1 with the intention of committing robbery. In the period prior to the offence the appellant and his co-accused had planned the robbery. They purchased weapons, a knife and a hammer and gloves. They used as their getaway vehicle a black BMW belonging to the appellant, the number plates of which had been modified by tape for the obvious purpose of preventing detection.[3]We have seen the CCTV footage which depicts the actual robbery, which lasted just over 40 seconds, and then the movement of the appellant and his co-defendants through the streets of east London until the moment when they are arrested by the police, who had, unbeknown to them, been in close pursuit.[4]Shortly after 2.00 pm on 9 March 2016, the appellant and his co-conspirators, with their heads and faces covered, entered the bank. The appellant and the co-conspirator Hassan held the knives and hammers and brandished them around. The knives in particular had long thick blades. The third defendant stood by the door as a lookout. The two armed men went to a cashier and demanded money. This is clear on the CCTV. Two members of staff were attacked. The bank is open plan with cashiers sitting behind desks without any physical security or protection. We have no doubt that this was a reason why the defendants decided to target this particular branch, namely because they considered that the staff would be easy targets to intimidate and that in consequence there would be an increased possibility that they could obtain possession of cash held on the premises.[5]On the CCTV, one cashier, Miss Sethi, can be seen being grabbed by one of the defendants from behind. She has a knife held to her throat and she is, in effect, thrown to the ground. In the process her head was thrown back and it can only have been at this moment that her left cheek was cut with a slash injury. Mr Layfield was also injured. He sustained a slash mark to his left cheek.[6]Having failed, however, to gain access to the cash tills, the defendants grabbed a quantity of correspondence and made their escape using the appellant's motor vehicle. They were apprehended by police nearby shortly thereafter.[7]The appellant initially denied being involved in the robbery but subsequently pleaded guilty. In sentencing, the Recorder took into account the following facts and matters. First, that the offence had involved pre-planning, including the purchase of weapons and gloves and the use of the appellant's motor vehicle as a getaway car. Second, that the defendants took steps to conceal their identities, including the modification of the appellant's vehicle number plate and the use of disguises to render identification from CCTV impossible. Third, the fact that the offence was committed by a group of three, with one defendant acting as a lookout and the other defendants both having in their hands knives and hammers. Fourth, the fact that the impact upon the bank staff was "absolutely terrifying". The judge had before him victim impact statements describing the long-term and adverse effects of the incident upon the affected staff. Fifth, the persistence used by the defendants in their efforts to obtain money, albeit that the efforts were ultimately unsuccessful. Sixth, the use of violence upon bank staff. Miss Sethi, for instance, was described in the following way. She was "grabbed from behind, a knife placed to her throat and she was cut". The other bank employ was "cut in the face, almost certainly deliberately". Seventh, the judge took into consideration that the defendants went into the bank with their eyes wide open, knowing that weapons that could cause serious injury or death were being used. The defendants knew they may have to deploy those weapons in order to effect their escape and they were prepared to do so.[8]Having viewed the CCTV, we can see that the injuries sustained by the staff could easily have been worse than they actually were. The grabbing of Miss Sethi from behind with a knife to her throat could easily have led to her throat being cut.[9]In relation to the Sentencing Council Robbery Definitive Guidelines, the judge recognised that he had to place the offence either within the category of "robbery - street and less sophisticated commercial" or within the category "robbery - professionally planned commercial". The judge recognised that there was a difference in both the starting point and range depending upon which category of offence was applicable. The judge took account of the fact that under both categories a degree of pre-planning was treated as an aggravating factor. He described this as a "slight anomaly". He was ultimately of the view that there was, on the facts of the case, a significant degree of planning which had the consequence that the offence was "fairly and squarely" within the more serious category of a professionally planned commercial robbery. He did accept though that the offence was at the lower end of the category. He made the following observation about the offence:
"It is very difficult to see how this robbery could be regarded as anything other than having a significant degree of planning and organisation. And in that regard it is clear that as I have already said, there was a degree, a significant degree of preparation involved: The purchasing of weapons, gloves, car used, premises targeted. Roles defined. Weapons shared out. Everybody knew exactly what they were doing."
[10]In terms of culpability, it was common ground that this was a category 1A case, i.e. high culpability because of the use of weapons to inflict violence. So far as harm was concerned, this was also category 1A because of the serious physical and psychological harm inflicted upon the bank staff. In the circumstances, the judge concluded that under the guidelines the starting point was one of 16 years after a trial with a range of 12 to 20 years. The judge concluded that he would give the appellant full credit for the guilty plea at the earliest opportunity, he took into account that the appellant had no previous convictions and he recognised that his case was "particularly tragic given his background and his circumstances in the period leading up to this robbery". In this, the judge was referring to the fact that the appellant was a university student with an otherwise unblemished record and good prospects ahead of him. However, he also commented: "He has only himself to blame though that he got involved, he went into it with his eyes wide open in my judgment".[11]So far as culpability was concerned, the judge declined to distinguish between the three defendants in terms of role. They all knew what they were doing. They all knew the risks and the consequence if apprehended. The judge nonetheless gave the appellant credit upon the basis of his previous good record and took as his starting point thirteen and a half years. Taking all mitigation, including credit for early plea, into account a sentence of 8 years' detention was imposed.[12]Leave was given to appeal by the single judge.[13]It is argued before us that the Recorder erred in concluding that the offence fell into the category of professionally planned commercial robberies, where the starting point for an offence of category 1A harm/culpability was 16 years. It has been argued that the offence properly analysed was less sophisticated commercial robbery where the starting point for a category 1A offence was 8 years. It is also argued that even if the first ground did not succeed, the sentence was passed without proper regard to the appellant's personal mitigation. The discount accorded to him of 12 months for his lack of previous convictions was, it is argued, insufficient. It was also argued on the papers, and we have taken account of the argument, that the Recorder failed to give credence to the appellant's submission that he had been led into the offence by others who were experienced criminals and there was some degree of coercion by co-defendants because he was the owner of a motor vehicle.[14]We deal first with the question of categorisation of the offence under the guidelines. The less serious category of street and less sophisticated commercial robberies is defined in the guidelines in the following way:
"Street/less sophisticated commercial robbery refers to robberies committed in public places including those committed in taxis or on public transport. It also refers to unsophisticated robberies within commercial premises or targeting commercial goods or money."
[15]The more serious category of "professionally planned commercial robberies" is defined in the following way:
"Professionally planned commercial robbery refers to robberies involving a significant degree of planning, sophistication or organisation."
[16]It is, in our view, clear from the guidelines that there is a wide range or spectrum of activity which falls within these two categories. Indeed, the guidelines recognise that the categories will encompass a wide range of degrees of planning, sophistication and organisation, not least because under both classifications the degree of planning is relevant. It is thus important when considering any particular set of facts to see the categories as reflecting a range or spectrum of degrees of planning, sophistication and organisation.[17]In the present case, the judge concluded that the facts fell within the most serious category but at the lowest end of the range. In our judgment, this was a proper conclusion to arrive at. The facts involved a considerable degree of pre-planning. The defendants purchased identical clothing. As the police case file summary records, the getaway vehicle when subsequently seized was found to contain identical clothing, scarves and gloves as worn by the defendants during the robbery. These had been discarded in the rear nearside footwell of the appellant's vehicle. Also found were clothing tags relating to the purchase of the items as well as packaging relating to the purchase of the knives used during the robbery. The defendants took steps to disguise the identity of the vehicle by modifying the number plate and, as we have observed, it is to be properly inferred from the CCTV evidence that the defendants targeted this particular branch because it was open plan and the staff were vulnerable. This was a group attack, pursuant to which roles were allocated, with one of the defendants acting as lookout and the other two as principal armed protagonists. They targeted a commercial premises, a retail bank, where they believed that substantial quantities of cash would be present.[18]In short, the facts can be distinguished from the paradigm case described by the less serious classification of a robbery committed in a taxi or upon a bus. It goes well beyond a person who enters, for example, a newsagent and uses a weapon to demand that the shop staff hand over cash or goods. The facts move in the general direction of a robbery involving a significant degree of planning and organisation, even if it was in the event executed in a relatively unsophisticated and amateurish manner.[19]In our view, on the facts of the case the judge was justified in his conclusion. We have sought to test our view by standing back from the facts and asking, bearing in mind totality, whether a starting point of thirteen and a half years is appropriate in all the circumstances. The category range for the less serious classification is 7 to 12 years and the range for the more serious classification is 12 to 20. Insofar as this is an offence which is on the cusp of the two classification, a starting point of thirteen and a half years is entirely proper on the facts.[20]We therefore reject the appeal based upon the classification of the offence within the guidelines.[21]We now deal briefly with other matters relating to the personal circumstances of the appellant. We reject the appeal on this ground in addition. The judge squarely addressed the differences between the various defendants. The criticism made is, in essence, as to the extent of the discount given. The judge took account of the appellant's previous good character and his personal circumstances. In our view, the extent of the discount was a matter properly within the judge's discretion. He balanced the previous good character of the appellant with the fact that he went into the robbery with his eyes open and it is, in our view, significant that the appellant was one of those who brandished weapons and who participated in the physical attacks upon cashiers and staff, causing injury and he was, of course, also the owner of the getaway vehicle.[22]For the avoidance of any doubt, we do not accept that there is any relevant evidence that the judge was required to take into account to the effect the appellant was subject to any coercion or pressure which would amount to mitigation. Such a conclusion is inconsistent with the role played by the appellant in bearing weapons.[23]In all these circumstances, the appeal is dismissed.

Cited in 2 later judgments