Kiely, R v

Mr Justice Beatson: On 7 July 2008 in the Crown Court at Manchester the appellant, now aged 25, pleaded guilty to three counts of robbery, one count of attempted robbery, two counts of possessing a firearm with intent to endanger life, two counts of possessing a firearm at the time of committing an offence and one count of arson. On 16 September 2008 His Honour Judge Gee QC sentenced him to life imprisonment pursuant to section 225 of the Criminal Justice Act 2003 with a minimum term of five years, less 360 days spent in custody on remand, concurrent on each count.

He appeals against sentence by leave of the single judge. We have been assisted by Mr James on behalf of the appellant and by the skeleton argument on behalf of the Crown by Mr Monaghan.

The offences were committed in a period of some three and a half weeks between 23 August and 14 September 2007. The facts of the offences can be summarised as follows.

On the morning of 23 August 2007 the appellant was driving a black Volkswagen Transporter. At a junction in Denton he intentionally collided with the rear of an Audi motor car driven by Mr Davies in order to cause the Audi to stop. Mr Davies spoke to him and took the details of the Volkswagen. He then knelt down to show the appellant the damage at the rear of his car. The next thing he remembered was that he woke up on the pavement with his car and the contents of his pockets gone. He was taken to Tameside Hospital. He suffered a large lump on the right-hand side of his head, a hole in his cheek, significant bruising to his head, and swelling to his mouth. There was damage to three ribs and a whiplash injury to his neck. He remained in hospital for three days. On 17 September at a Viper procedure he identified the appellant as the driver of the VW Transporter that collided with his car. This incident was the subject of count 3.

On 1 September 2007 Margaret Greene, who was pregnant at the time, was another victim of a deliberate rear end shunt. She got out of her vehicle, had a conversation with the driver and was punched on the left-side of her jaw by him after which he got into the car and drove off at speed nearly running her down. She was treated in hospital for a bruised and swollen jaw. Her motor car worth some £17,500 was subsequently recovered but it was damaged. She also identified the appellant at a Viper identification procedure. This incident formed the subject of count 5.

In the early hours of 4 September Mr Gill was sitting outside his house at an address in Longsight when he was approached by a man. They spoke and Mr Gill invited the man into his house. The man left after a short time but returned with the appellant. The two men had a drink with Mr Gill who became suspicious of the appellant. He then realised the appellant was holding a £20 note which he had taken from Mr Gill's pocket. Mr Gill picked up some numchucks that he used for martial arts practice, shouted at the appellant to get out of the house, and chased him towards the living room door. At that point the appellant took out a gun, pointed it in Mr Gill's direction and pulled the trigger. The gun discharged but the bullet, fortunately, did not hit Mr Gill. The appellant ran to the front door and discharged the gun again in Mr Gill's direction, again without hitting him. The other man escaped through the window. Mr Gill made a partial identification of the appellant at a Viper procedure. Ballistic evidence and DNA testing linked the appellant to the scene of this incident. This incident formed the basis of count 9, possession of a firearm with intent to endanger life.

Count 14, arson, related to a Vauxhall Corsa motor car taken from the car park of a hotel in Manchester in the early hours of 8 September by two men. On 11 September police officers found the car abandoned and damaged by fire. A witness provided video footage of two men setting fire to the car. The two men were identified as the appellant and his co-accused Roberts who pleaded guilty to the arson and a count of aggravating vehicle taking.

The remaining counts, counts 16 to 20, of robbery, attempted robbery, possessing a firearm at the time of committing an offence and possessing a firearm with intent to endanger life, related to an incident in the early hours of 14 September at a house in Longsight where Wesley Randle lived with his mother and a lodger.

Mr Randle was woken up by a man knocking on the front door of the house apparently seeking to buy drugs. He told the man to "fuck off". The occupants in the house then heard the sound of breaking glass. A gate had been thrown at the living room window which broke. Mr Randle's mother barricaded herself in her bedroom and other occupants of the House, Michael Walsh and Amanda Colquhoun, left.

Wesley Randle saw two men, one at the top of the stairs and the other, the appellant, halfway up. Using a ladder, he forced them back down the stairs. The appellant then produced a gun and discharged it. Mr Randle thought he had been shot but in fact suffered no injuries. He ran back into his bedroom and jumped out of a window to escape, breaking his ankle and suffering other injuries in the process. He later discovered that the men had stolen his mobile telephone and car keys. That part of this incident formed counts 16 to 18.

Mr Randle then ran down the road dressed only in his underwear. He met Michael Walsh and Amanda Colquhoun, the people who left the house, and he got into Michael Walsh's car. Walsh and he drove off, leaving the two men running towards the car with the appellant still holding the gun and pointing it at the car. The two men then chased Amanda Colquhoun towards the house. The appellant grabbed her, held the gun to the right side of her neck and said, "Give me the money and the drugs." She told him she had none of either. The appellant then searched her and demanded to know where Wesley Randle's car was, showing her that he had already taken Randle's car keys. The appellant then spotted the car parked nearby and, with the other man, ran towards it and drove off just as the police arrived. The car was followed by police officers until it was abandoned near a railway line. There was a brief chase after which the appellant was detained. Amanda Colquhoun identified the appellant at a Viper identification procedure. This part of the incident formed counts 19 to 20.

The appellant has 17 previous convictions recorded for some 40 offences, including robbery, possessing an imitation firearm with intent, possessing a firearm with intent, and other offences including assault occasioning actual bodily harm, driving and drug offences, blackmail and bail offences.

A pre-sentence report stated that he had made great attempts to minimise the seriousness of the count 9 offence. The report writer stated that it was her assessment that the appellant's recognition of the seriousness of that offence was so limited that he did not feel it warranted further thought. She formed the view that he was irritated by her questions and lacked understanding as to their relevance. He said that he was remorseful for his actions and was sorry to have upset the victims, but she did not consider him at any point to be genuinely remorseful.

She also said his attitude towards the seriousness of the offences could be described as complacent and the significant degree of recklessness he repeatedly displayed was of momentous concern. She assessed him to be at a high risk of reoffending and his risk of potential harm to others was also assessed to be high.

When sentencing the appellant the judge stated that he was properly to be regarded as a very dangerous and violent young criminal. The offences to which he had pleaded guilty were serious specified offences punishable by a maximum sentence of life imprisonment. The judge agreed with the assessment of the probation officer, was satisfied that there was a real and significant risk that the appellant would commit further serious specified offences of violence if released and that, in such an event, there was a real and significant risk of serious harm being caused thereby. He stated that he had taken into account all that was known about the appellant, his previous convictions and the facts of these offences. The public required protection from this appellant.

He concluded that the seriousness of the offences individually and taken together were such as to justify the imposition of a sentence of life imprisonment pursuant to section 225 of the 2003 Act. The judge stated that the notional determinate sentence after a trial for these offences would have been 20 years. Notwithstanding the appellant's late guilty plea and the assertions in his subsequent defence statement, the judge allowed a 20 per cent reduction to reflect the plea. The judge stated that a further 30 per cent reduction would be allowed to reflect various personal matters. It is clear that the personal matters he referred to was assistance which the appellant had given the prosecution in relation to other matters. We return to this matter later in our judgment. But at that stage that was all the judge said. Accordingly, the starting point of 20 years was reduced by 50 per cent to ten years, which had to be divided by two because the early release provisions do not apply to this sentence. The result was the minimum term to which we referred at the beginning of this judgment.

In the grounds of appeal and his advice, Mr James submitted that the imposition of a life sentence was inappropriate in the circumstances of this case. It was submitted that it did not adequately reflect the age and relative immaturity of the appellant, his guilty plea, the fact that the offences were all committed over a three-week period when he was addicted and under the influence of drugs and alcohol and the likely rehabilitative effect of a lengthy determinate custodial sentence. It was also submitted that the sentence did not take any or sufficient account of the fact that the longest sentence previously served by the appellant was 21 months in a young offender institution for possessing a firearm with intent to cause fear of violence in 2001 and that was the last offence of any gravity committed by him before the index offences. Reliance was also placed on the appellant remaining drug free while in custody and having engaged constructively with drug agencies to address his addiction and the substantial assistance he gave to the authorities.

The judge was required to apply the test in section 225 of the Act because the appellant had been convicted of serious offences committed after the commencement of the section and had a qualifying conviction. He was required to ask the section 225(1)(b) question, whether there was a significant risk to members of the public of serious harm occasioned by the commission by the appellant of further specified offences. He then had to consider the question whether the seriousness of the offence, or the offence and one or more offences associated with it, and whether that seriousness justified the imposition of a sentence of imprisonment for life.

We first address the issue of dangerousness. Notwithstanding the criticism in the written grounds of the pre-sentence report, the judge was entitled to rely on it. Insofar as the pre-sentence report relies on the OASys assessment, this court has said that such tools are a satisfactory basis for reaching conclusions by the report writer and thus by the sentencing judge: see Boswell [2007] EWCA Crim 1587.

In the light of the circumstances of the index offences, the appellant's previous convictions and the contents of the pre-sentence report, the judge was entitled to conclude that the appellant was a dangerous violent criminal from whom the public required protection.

We turn to the seriousness of the offences. The court has given guidance as to the determination of the gravity of the index offence in a number of cases, in particular Attorney General's Reference No 32 of 1996 [1997] 1 Cr App R(S) 261 and Chapman [2001] Cr App R(S) 377.

The guidance in those and other cases must, however, now be considered in the light of the decision in Kehoe [2008] EWCA 819 Crim. In that case this court, presided over by the then Lord Chief Justice, considered the distinction between a sentence of life imprisonment and one of imprisonment for the protection of the public. It stated that, in the light of the introduction of the latter sentence by the Criminal Justice Act 2003, life imprisonment pursuant to section 225 should now be reserved for those cases where the culpability of the offender is particularly high or the offence itself is particularly grave. This is because the public will be properly protected against dangerousness by an indeterminate sentence.

In this case the robberies were premeditated and very serious. They were street robberies involving the use of a car in effect as a weapon to stop the victim who was diverted by concern about damage to the car and then attacked. A firearm was used on two occasions. It was only by good fortune that serious injuries were not sustained. In the incident involving Mr Gill, which formed the subject of count 9, the appellant discharged the firearm twice, pointing the weapon in Mr Gill's direction. He also discharged the weapon at Mr Randle's house, pointed it at the car and held it to the neck of Miss Colquhoun when he threatened her. Since an intention to endanger life was accepted in the case of counts 9 and 16 and the questions in the case of Avis were all answered adversely to the appellant, we consider that the judge was entitled to consider that the firearms offences were very serious.

While the offences were undoubtedly very serious, in the light of what was stated by this court in Kehoe, which case does not appear to have been before the judge, we consider that in all the circumstances, including the appellant's age, and the fact that the public can properly be protected by an indeterminate sentence of imprisonment for the protection of the public, that sentence will suffice. The practical consequences of the two sentence are almost identical. The difference, and it is a difference which may be of significance in the case of a relatively young person, arises from section 31A of the Crime (Sentences) Act 1997, introduced by Schedule 18 to the Criminal Justice Act 2003. Those provisions enable a person released on licence after a sentence of IPP to apply to the Parole Board after ten years on licence for the licence to be revoked.

Mr James submitted that, in the light of the minimum term set by the judge and his submissions as to the appropriate discount to reflect assistance, this case could properly be dealt with by a long determinate sentence. We do not accept that argument. The judge, for the reasons we have given, was entitled to find that the appellant was a very dangerous criminal.

The remaining point, accordingly, relates to the discount to be offered as a result of the substantial assistance that this appellant provided. He gave information about a confession to a murder and told the authorities that the person who had confessed to that murder knew the identity of a potential witness to it and alerted them to the potential for a further offence of interfering with that witness.

The decision in P and Blackburn [2008] 2 Cr App R(S) 16 suggests that in these cases while a mathematical approach should not be taken, the court should consider the criminality of the defendant, giving weight to the mitigating and aggravating features in the case, and then the quality and quantity of assistance and particularly whether evidence was given and whether this assisted in the conviction for serious offences.

In this case this appellant gave information and evidence about a murder. He also gave evidence at the trial after he was sentenced in this case. He did so although the suggestion that he might be protected by special measures, including anonymity, was not pursued. Mr James submits that he has not benefited by the discount of between a half and two-thirds of the appropriate sentence that is indicated in P and Blackburn.

We agree that overall insufficient discount was given for the assistance that was given. We take into account also that after sentencing the appellant gave evidence. However, we do not consider it appropriate to approach this in a mathematical way. We consider that, given the timing and the circumstances of the plea, the 20 per cent recognised by the judge was generous and may have reflected a desire to wrap up the matter of his co-operation (which was not then public). Doing the best we can, standing back and taking into account all the circumstances, we consider that the appropriate discount is a discount that produces a minimum term of four years less 360 days spent in custody. To that extent this appeal is allowed.

Accordingly a sentence of imprisonment for the protection of the public is substituted for the life sentence with the minimum term that we have stated.