Attorney-General's Reference No.16 of 2007

LORD JUSTICE HUGHES: Her Majesty's Attorney General seeks to refer under section 36 of the Criminal Justice Act 1988 a sentence of three and a half years' imprisonment imposed for the offence of conspiracy to rob. We give leave.

The defendant supplied four motor cars which had been stolen previously to people who then used them to carry out robberies. His role was, if not to steal them himself, and there was no evidence of that, to receive the cars, disguise them perfunctorily by equipping them with false number plates, and in one case by darkening the window glass, and then supply them to the robbers. The robbers, whoever they were, were never caught. The defendant's fingerprints, however, were found in all four stolen cars after they had been used to commit the principal offences.

The robberies carried out were serious, although they were not right at the upper end of the scale. They were planned and the robbers carried weapons, although not firearms, on at least three of the four occasions.

One of the offences was an attempted robbery of a Securicor van as it made a cash delivery. There were two masked robbers. If there were weapons on that occasion they were not seen. The approach of the robbers was noticed, the alarm sounded and the attempt was aborted. The second was a day-time robbery of a post office. It was carried out by three masked men, one of them carrying an axe. There were threats of violence, although no actual violence. The four people in the shop co-operated, no doubt sensibly and in the face of armed assailants. The third offence was a very similar day-time post office robbery, again carried out by three masked men, this time equipped with a hammer and a sword. Lastly, on the fourth occasion a further attack was made on a Securicor van which was making a delivery. There were on this occasion three masked robbers and they had between them an axe and a machete. One guard was in the course of that offence kicked in the stomach. That is the only example of actual force used, but the threats were designed of course to avoid the necessity for actual force. Those were the robberies.

This defendant was 25. He had fairly frequent previous convictions from the comparatively early age of 13 onwards. They were for burglary, motoring and dishonesty, but not for violence. The judge did not regard a conviction for snatching a bag, nor one at the age of 13 for affray, as altering that analysis; nor do we. The defendant had on three previous occasions been sent into custody for periods up to but not exceeding 21 months. So his record showed that he was well used to burglary and dishonesty, significantly less serious than the present offences.

When the defendant was initially interviewed by the police, he admitted straightaway that he routinely supplied cars which he realised would end up in the hands of criminals; indeed, he said "The vehicles I sell do invariably end up being bought by people with criminal links". Thereafter in the course of interview he preferred to answer no questions, except that he disputed the suggestion at that stage that he knew that the cars would be used in robbery. In the end, he did plead guilty to the offence of conspiracy to rob. He did not, however, do that until the first day of his trial. He pleaded guilty expressly on the basis that he supplied vehicles to people whom he knew would use them in robberies and that there would be robberies in which some sort of weapon, such as a baseball bat or similar, would be used to threaten the victims.

We have been referred by counsel for the Attorney General to the Attorney-General's Reference (No 52 of 2004) R v Chilton [2004] EWCA Crim 2768. There this court increased a sentence of five years which had been imposed for a series of four robberies, among other offences, saying that it would have been a case for eight or nine years on a plea of guilty. Exactly what the stage was at which the plea had been tendered in that case does not appear from the report. We do not for a moment doubt the analysis in that case. It is enough to say two things of that case. Firstly, the offences were somewhat more serious than these because they involved very frightening threats made at night to vulnerable victims, some of whom were invaded in their bedrooms. Secondly, it is common ground between counsel for the Attorney and counsel for the present defendant that, placing the present case in its proper position in relation to cases such as Chilton, those who committed the present robberies, had they been caught and had they been convicted after contested trials, could have expected sentences in the general region of ten years. With that latter proposition we agree.

A person such as this defendant, who supplies stolen motorcars suitably disguised for use in robbery, is as much guilty of the offence of conspiracy to rob as those who carry out the attacks. In some cases a facilitor of such crimes may well be in the position of instigator, organiser and perhaps a large-scale sharer in the proceeds. That kind of defendant may well merit a sentence equal to or even sometimes greater than those who carry out the robbery themselves. Fagin, if prosecuted, deserved a longer sentence than the boys deployed. That, however, is not the allegation and never has been the allegation against this defendant. This defendant was in an ancillary role. There are a number of potential ancillary roles to offences such as robbery. The important question is at what level ought the sentence to be fixed for this kind of ancillary role. This defendant knew that he was dealing with a team of armed robbers -- armed robbers in the sense that we have described, not at the top of the scale, but people who could be expected to extract money from others by threatening them with weapons such as baseball bats.

For the Attorney, Mr Hilliard submits that, after a contested trial, such a defendant as this should normally expect a sentence in the general region of six years. For Mr Hargreaves, Mr Meadowcroft dissents from that only to this extent: he submits that the appropriate bracket is something in the region of four and a half to five years.

We take the view that, for a man who on four separate occasions supplies disguised vehicles to enable people who he knows are armed robbers to carry out their offences more effectively, the sentence proposed by Mr Hilliard is nearer to the mark than that proposed by Mr Meadowcroft. There is of course a proper bracket of discretion for any judge dealing with an offence of this kind, but in our view it would be somewhere between five and six years and nearer to six, normally, than to five years.

The present sentence of three and a half years was imposed after a late plea of guilty. A late plea of guilty does not attract the same level of reduction as does a plea promptly tendered. There was, in reality, no significant level of negotiation between the parties at the court door on the occasion of this trial. The defendant ultimately, but belatedly, accepted the case which the Crown had always made against him. The Crown had never suggested that he could be shown to be a participant in these robberies; he was always prosecuted as an ancillary supplier of motor vehicles knowing the use to which they were likely to be put.

In those circumstances, the judge's sentence of three and a half years is, we are satisfied, outside the available bracket for the offence. We take the view that the sentence which ought to have been imposed upon this defendant ought to have been five years or a little more. We are satisfied that the sentence is sufficiently far below the proper sentence for it to be a case in which we ought to interfere. Not every case of a sentence which is lenient comes into that category, but we think this one does. We propose to vary the judge's sentence to one of five years. That will be the order of the court.