Cummings, R. v [2017] EWCA Crim 457

[2017] EWCA Crim 457Case No 201604165/A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 28 March 2017
Strand
London, WC2A 2LL
B e f o r e:
PRESIDENT OF THE QUEEN'S BENCH DIVISION
(SIR BRIAN LEVESON)
MRS JUSTICE McGOWAN DBE
MR JUSTICE O'FARRELL DBE
Between
R E G I N ACrownDEVINA CAROLINE CUMMINGSDefendant
Computer Aided Transcript of the Stenograph Notes ofWordWave International Limited Trading as DTI165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr R Fitt appeared for AppellantThe Crown was not present and was unrepresented
J U D G M E N T (Approved)
[1]MRS JUSTICE McGOWAN: On 20th July 2016 the appellant, Devina Caroline Cummings, changed her plea to guilty to a count of robbery on an indictment which also alleged an offence of theft. For the offence of robbery she was sentenced to 3 years and 7 months' imprisonment by Mr Recorder Kovats QC on 17th August 2016. She appeals sentence today by leave of the single judge who granted a representation order and Mr Fitt appears on her behalf.[2]On 27th February 2016, at about 10.15 pm the appellant, the co-accused, Mr Cochrane, and an unknown third person, a man, entered a family-run newsagents and off-licence in Hither Green. A fourth person apparently was waiting outside in a car. The complainant in this case, Mr Varatharaja, who ran the shop with his wife, was alone at the time. All three went into the shop, went up to the counter and began to talk to the complainant. There were various acts of pointing at items on the shelving behind the counter and it was clear that each of them was seeking to distract him whilst others began to help themselves to bottles of spirits from behind the counter. When Mr Cochrane, who picked up a bottle was challenged, he swung the bottle at the complainant. Whilst this was happening at one end of the counter this appellant was leaning over the counter at the other end trying to reach cigarettes and other smaller items. At one point she lent right over the counter and took items out from underneath it. It is safe to infer from the CCTV footage that that was the point at which the bag of cash was stolen. She persisted in her efforts to retrieve property from underneath the counter and at one stage lost her balance and fell headfirst across the counter. She stood up and continued to take more bottles and more cigarettes. Whilst this was happening Mr Cochrane and the other man were also helping themselves to various items from behind the counter. Mr Cochrane was still wielding the bottle in a threatening manner. They were not in the shop for terribly long but they left a scene of considerable mess behind them. They had also taken the key to the complainant's car. That car was in fact stolen by Mr Cochrane sometime the following day.[3]When the appellant pleaded guilty she put in a written basis plea which read:
"1. I stole the cigarettes and alcohol from the shop on 27/2/16. 2. I did not use force or threaten violence. 3. There were no prior plan to use violence or threats. Cochrane waved the bottle at the shop keeper. This caused him to back away from me. I then opportunistically took advantage and carried on stealing. 4. Only on that basis do I accept that I am guilty of robbery."
[4]This was clearly, as the learned Recorder observed, an incident in which three people acted in consort: they went in together; they tried to distract the shopkeeper whilst others of the group sought to steal property and indeed there were points at which the poor complainant was running up and down behind the counter whilst each of the two defendants (this appellant and Mr Cochrane) were attracting his attention.[5]He made a witness statement in which he said at page 2:
"I was scared at this point and I took the spirit bottle to defend myself... [of one of the men he said] 'I'm going to kill you or knock you out' or something similar ... I was shaking with worry and panicking since the incident and I am not injured but it has been a bad experience."
He also spoke of the loss of £1400 in cash, a quantity of cigarettes, alcohol and the keys to his car.[6]In approaching sentence the learned Recorder treated this as a joint enterprise offence. He put it in category B, "medium culpability" on the basis a weapon had been produced and there was a threat of violence. There is no challenge to that assessment of the culpability category.[7]Mr Fitt, in his skeleton argument and in oral submissions before us today, does take issue with the categorisation of harm. Category 3 in the Definitive Guideline of the Sentencing Council for Robbery, described as "street and less sophisticated commercial" identifies the feature of harm as "no/minimal physical or psychological harm" caused to the victim and "no/minimal detrimental effect on the business".[8]Those submissions were made in the court below and the learned Recorder considered them. He rejected the submission as, in the view of this court, he was properly entitled to do. This was a shopkeeper alone in an off-licence at about 10.15 in the evening, providing a public service. He was vulnerable to attack and he was attacked. He was shaken and scared and it was, on viewing the CCTV, albeit brief, nonetheless a frightening incident.[9]We do not accept the argument that this could not be described as more than minimal psychological harm. In any event in addition to the effect on him, there was clearly more than minimal detrimental effect on the business in the loss of £1400 in cash and items of property or stock.[10]This appellant has a bad record of persistent offending. She has previously served a custodial sentence and no criticism can be made once the offence is placed into category B2 of the learned Recorder's taking the proper starting point of 4 years. He then applied the correct level of credit for her late guilty plea and reduced that sentence accordingly.[11]The sentence imposed of 3 years and 7 months properly reflects the categorisation of this robbery. It is not unduly aggravated by the presence of previous convictions or indeed by the fact that, as is clear from the CCTV and all that can be known about this appellant, she was under the influence of either drugs or alcohol or both at the time of an incident in which three people went into a shop to carry out a robbery.[12]For all those reasons, despite the care and charm with which Mr Fitt has advanced his argument today, this appeal is refused.