Toomey & Anor, R v

LORD JUSTICE ROSE: On 24th February 2004, at Blackfriars Crown Court, these applicants pleaded guilty on re-arraignment and the following day they were sentenced by His Honour Judge Hitching, in the case of Toomey to eight years' imprisonment for robbery and in the case of Francis to seven years' imprisonment for robbery. Counts of false imprisonment and theft were left on the file on the usual terms. They now renew their applications for leave to appeal against sentence following refusal by the single judge.

The victim of their activity was a 30 year old man who lived alone on the top seventh floor of a tower block in Plumstead. He was a homosexual. He sought to maintain the privacy of his private life.

Soon after he moved into that flat he met the applicant Toomey, who visited him and asked him for money. On a number of occasions the victim of this offence, as he became, handed over money to Toomey, usually in the sum of £20.

These sort of events came to an end when Toomey was sent to prison in November 2002, but during the spring and summer of the following year the applicant Francis started to visit the complainant and ask for money, which was handed over.

At about 9.30 on the evening of 8th October 2003 the two applicants visited the complainant at his flat, and at Toomey's request the complainant handed over to him £20. At the time the complainant was with a 17 year old youth, as must have been apparent to his unwelcome visitors.

Shortly after 11 o'clock the same evening, while the victim and the youth were watching a film, there was a knock at the door and Toomey was shouting through the door. For a while the victim ignored this, but then there was a loud thud from the roof of the flat. The victim looked out and saw Toomey jumping down onto his rear balcony, brandishing a hammer with which he smashed the lounge window. The complainant ran to his front door, but when he opened it he was confronted by Francis and another man. He was pushed back into the flat and forced to the ground. He cried out for help, a hand was put over his mouth and money was demanded from him. He handed over £40. The men left.

Later that evening the two applicants were arrested. In interview they declined to make any comment.

When he passed sentence, the learned judge referred to the vulnerability, by reason of his sexuality, of the victim of this offence, and he referred to the bullying in the background history to the offence which we have briefly summarised. The judge pointed out that the victim of that bullying was, as was anticipated by those bullying him, reluctant to go to the police, and indeed when they returned on the occasion that the robbery was committed, they did not wear disguises because, as the judge described it, they were quietly confident that their victim would not do anything. They were both, the judge pointed out, big men, well able to overpower their victim.

The picture which, in summary, the judge described was of a vulnerable victim, terrified in his own home by two much larger men. He indicated that he would give credit for the pleas of guilty, but pointed out that they were tendered at a late stage and there was no obvious demonstration of remorse by either of the applicants. Indeed until the very last moment the complainant had been faced with the prospect of giving evidence against them.

The judge noted that Toomey's record was more serious than that of Francis and, furthermore, he was on licence at the time when he committed this offence. Toomey is 29 years of age. He has previous convictions for affray, burglary, attempted burglary, inflicting grievous bodily harm with intent and common assault. Francis, who is about ten years older, also has two previous convictions for assault with intent to resist arrest and one for threatening behaviour.

The submission which is made by Mr Cray, on behalf of Toomey, is that the learned judge, in indicating a starting point of nine to ten years following a conviction, chose too high a starting point bearing in mind that this was a single offence, albeit committed against an unusual background. Mr Cray draws attention to Attorney General's Reference No 48 of 2000, R v Johnson [2001] 1 Cr App R (S) 423, where, at page 427, following a review of some of the authorities, Roch LJ indicated that in relation to a single offence where an offender had pleaded guilty (and he clearly had in mind where a maximum discount was being given for a plea of guilty), the range appropriate is between four and seven years' imprisonment.

Mr Reid, on behalf of Francis, added to that criticism of the judge's approach a criticism of further observations which he made which seemed to suggest that he believed that he was imposing, in the sentences which he selected, sentences at the lower end of the appropriate bracket, and that, submits Mr Reid, is not right.

The crucial question for this court is whether it is arguable that the sentences imposed on either of these applicants were manifestly excessive. In our judgment, these were severe sentences. But this was an extremely unpleasant offence, committed by two large men with previous convictions for violence against a vulnerable victim in his own home. In our judgment, it is not, even arguably, a manifestly excessive sentence. Accordingly, these renewed applications, despite the succinct and attractive submissions of both counsel, are refused.