Morris & Anor, R v

LORD JUSTICE RIX: The court is concerned with two appeals concerning two young men who in the space of a few weeks, in January 2009, went on a rampage of robbery and aggravated burglary and were sentenced to life imprisonment with very significant minimum terms.

The question on these appeals is whether those sentences of life imprisonment were justified in circumstances where the danger, which no one suggests that these appellants do not present, can be dealt with by equivalent indeterminate sentences of imprisonment for public protection. The question is also raised whether, in the light of the appellant's absence of the use of the weapons that they carried to terrorise their victims, the minimum periods specified were somewhat too long.

These appeals concern Daniel Morris and Damian Long. Both appellants pleaded guilty to their offences and were entitled to maximum credit for those pleas. Morris faced sentence for three robberies, two aggravated burglaries and a kidnapping. Long faced sentence for six robberies, one attempted robbery, two aggravated burglaries and a kidnapping.

They both received life imprisonment for the kidnapping on count 6, the two counts of aggravated burglary on counts 8 and 9, and two particularly serious cases of robbery in the home (counts 11 and 12). In addition, Morris received a sentence of 4 years' imprisonment concurrent for the robbery count on count 1, and Long received concurrent sentences of 4 years' imprisonment for three counts of robbery, count 1 again, but also counts 2 and 3, in respect of which he stood alone and count 4, a count of attempted robbery. He also received a concurrent sentence of 6 years' imprisonment on a further count of robbery, count 10, again where he stood alone, that is to say apart from his co-defendant, Morris. Having sentenced both appellants to sentences of life imprisonment, the judge specified a minimum period of 7 years and 3 months for Morris, representing a determinate sentence of 22 years, had there been a trial and no plea of guilty. In the case of Long, he specified a minimum period of 8 years, representing a determinate sentence of 24 years after a trial, or 16 years in the case of a plea as occurred.

They appeal against sentence by leave of the single judge.

The facts of these very serious offences are as follows. At about 11.00 am on 1st January 2009 a 45-year-old woman, Mrs Payne, had stopped her car in a car park in order to have a cigarette and make a telephone call. She was about to drive away when the appellants, wearing dark clothing and balaclavas, approached the car. They dragged her out of the car and pinned her to the ground before getting into the car and driving off at speed. Her handbag was also in the car. Eventually the car was recovered but by then it had sustained fire damage and had to be written off. That was count 1. Mrs Payne, in her victim impact statements, referred to her shoulder being injured in the course of the incident as she was pulled from the car. She suffered a lot of pain and was taking strong pain killers every 8 hours. She was now far more guarded than she had been when out in a car in public spaces and had also experienced trouble sleeping.

The next offence occurred on 3rd January 2009, in the early hours of which two friends, a Miss Harrington and Mr Winstanley, were walking home with other friends when they were accosted by Long and an unknown man. The two assailants had used Mrs Payne's car, which the appellant's had robbed her of under count 1, in an act of reconnaissance. The car screeched to a halt beside the two victims and there was an aggressive shout for Miss Harrington to hand over her bag. When she refused she was struck a number of blows to the head which caused her to fall to the ground. Her bag fell off her shoulder and the robbers picked it up. Long then approached her companion and demanded the laptop computer he was carrying. He kicked out at him and snatched the laptop. He and his accomplice got back into the stolen car and drove off. Those were counts 2 and 3.

About 30 minutes after those events, a man was walking towards his home when the same stolen car screeched to a halt next to him. Long and the other man got out and pushed the driver into the back seat of the car. They demanded his money and credit cards but he refused to hand them over. He was repeatedly punched and kicked but managed to get away. That was count 4, the count of attempted robbery against Long.

Later that same morning, 3rd January 2009, at about 4.45 am a 32-year-old man, Mr Palmer, was lying naked under a duvet in his sitting room where he had fallen asleep. He was awoken by the appellants, both of whom had the lower part of their faces covered. One of them was carrying two knives. They demanded money from him. The appellants found his wallet and demanded his PIN number as a knife was held to his throat. He was repeatedly punched in the face. His hands were tied behind his back with a belt. His feet were secured with some sort of cable and he was dragged from the sitting room and put in a cupboard under the stairs. His home was ransacked. A valuable television was stolen. His phone was ripped from the wall. He was taken outside and placed in the boot of his car before further threats were issued to him. The car drove off but stopped a few minutes later. Mr Palmer was taken out of the boot and ordered into an empty wheelie bin. Heavy rocks were placed on top. Palmer managed to get out of the bin and make his way home wearing nothing but a pair of boxer shorts and a thin coat. It subsequently transpired that the appellants had used his PIN card to withdraw £600 from his bank account.

He was told that if they had not been successful, he would have suffered still worse. His car was subsequently recovered but it too had sustained significant fire damage. Those matters were the content of counts 6, the kidnapping count and count 11, one of the particularly serious counts of robbery.

Mr Palmer suffered swelling to his face and both eyes and sustained bleeding to the back of his eye balls. He also suffered bruising and grazing to the chest and to the face. Over the following 2 weeks he suffered from repeated severe headaches, pain in his left ear and down the side of his face. In his impact statement, he said that he was relieved when the thing was over and he was still alive, but since then what had happened to him had started to sink in. Although he described himself as a fairly strong person, he now felt nervous if ever he hears a noise outside his home, he has trouble sleeping and has been described slipping tablets. He finds it difficult to relax. He has begun to think as everybody as criminal. He has required counselling. He doubted whether he would ever feel as relaxed and confident as he did before what he had suffered.

At 3.00 am, two nights later on 5th January 2009, a 51-year-old man, Mr Rogers, was asleep in his own home when he was awoken by the appellants who had their faces covered. One of them was holding a screwdriver and the other a claw hammer. They demanded money and bank cards. When Mr Rogers said he did not have any money they became angry and aggressive and started smashing furniture and ransacking the room. He was repeatedly punched in the face, dragged out of bed and taken outside to his garage. He was able to demonstrate that he did not have a car, whereupon he was dragged back inside the house and placed face down on the bed. His hands were tied behind his back. His phone line was ripped out. A substantial amount of property was stolen including electrical goods and some jewellery. Those matters covered count 12, the other particularly serious case of robbery.

The injuries that Mr Rogers sustained in the course of those events required him be taken to hospital. He had suffered extensive bruising and swelling to the head and face. His left eye was completely swollen. His jaw and mouth were swollen and he was unable to eat anything solid for the next few days. He said that one of the punches to his face had burst his nose open.

Ten days passed before the next events which occurred in the early hours of 15th January 2009, when the appellants targeted another home. This was a one-bedroom house occupied by a 19-year-old youth call Mr Daiken. His pregnant cousin and her partner were also staying with him at the time. They were awoken by someone shouting "It's the police, open the door". They were all alarmed, especially the pregnant woman. First they refused to open the door but the appellants insisted and threatened to kick it in. Then they broke the door open and entered. One of them was armed with a knife, the other with a screwdriver. They had their faces covered. One of them said: "Where's Chris? He owes me money for drugs". A man called Chris had been the previous tenant of the property. They demanded money, began searching the property and threatened the pregnant woman's partner when he tried to stand up to them. They did that by holding a screwdriver to his face. The woman told them she was pregnant at which point they left. That was the count of aggravated burglary charged under count 8.

That same night a woman, Mrs Myers, who was using her computer, heard some noises coming from the hallway of her home. She thought it might be her daughter coming home but when she went towards the living room she was confronted by the appellants, again masked. They were both holding large knives. Mrs Myers screamed whereupon one of them put his hand over her mouth and demanded to know if there was anyone else in the house as she was held up against a wall. Mrs Myers said she was alone although in fact her husband was asleep upstairs. They asked her for her car keys and demanded to know where her car was. Her husband was awoken by his wife's scream and came downstairs to investigate. He was confronted by one of the robbers. When he entered the living room he saw his wife lying on the floor. He was instructed to lie next to her. The robbers prodded both of them with the knives. Threats were made to paralyse Mr Myers for life by cutting his spinal cord. Mr Myers was forced to hand over the ring she was wearing and then they were tied up with the cord of the telephone. The robbers next demanded to know the combination of a safe which they found upstairs. Mr Myers felt compelled to oblige as a knife was being forced into her back and one of them said: "Tell me the fucking code now or I will slash you and I will kill you in front of your fucking husband." One of them set a birthday card alight and held it to Mrs Myers' face. The appellants then opened several cans of beer and poured them over the couple before they left taking Mrs Myers' car and about £4,000 worth of goods. That was the other count of aggravated burglary charged under count 9.

In her impact statements Mrs Myers said that she had felt completely humiliated by being soaked to the skin with the beer. She said that she had been unable to return to work since those events. She had lost half a stone in weight. She declined the offer of counselling but needed to go to her doctor where she was prescribed Diazepam. She has felt angry and vulnerable when on her own and the theft of her wedding ring had had a particularly profound effect upon her. In his impact statement, her husband said that the ordeal had impacted on the two of them immensely. He described his wife as too stressed and upset to be left on her own. He had himself lost a stone-and-half in weight and sought medication from his doctor. When on a recent excursion he had passed four youths wearing dark hooded clothing he had felt his knees go weak. He described the aggression and violence used by his and his wife's assailants as "extraordinary".

Around midnight on 17th January a 61-year-old man, Mr Baybutt, was walking home. He got to the driveway of his house and suddenly felt a hefty blow to the back of his head. It was delivered with such force that he was propelled forward and his head hit the front door. He was struck several further blows before his wallet was removed. His wife heard the noises and when she went to investigate found her husband lying unconscious by the front door. That was count 10, a further charge of robbery in respect of which Long alone pleaded guilty.

Mr Baybutt's wife described the moment when she found her husband unconscious by the front door as a moment that she would remember for the rest of her life. She described her husband's face as swelling to twice its normal size and it was discovered at hospital that he had received a fracture to his right cheekbone. In his victim impact statement, he described how he had been left stressed and depressed and unable to function as once he did. He could only get intermittent sleep. He was left with a fear of repercussions. Friends had had to walk him home at night when he had been out socialising with friends. Mrs Baybutt in her victim impact statement described similar effects upon herself and she said that the support that her husband had been giving her for the last 5 years, following a stroke which she had suffered, was now support which she had to try to give to her husband in turn.

In his lengthy and careful sentencing remarks the judge described these events and described the appellants as purveyors of terror. They had attacked people in their own homes and subjected them to violence, humiliation and terror in an endeavour to make them hand over their valuables. He described their behaviour as sadistic, savage and cruel, necessitating severe sentences to be imposed upon them. He described them both as ruthless, determined, brutal and dangerous men. He described the terror which the victims had plainly suffered. He said that he bore in mind everything that he had heard and read about the appellants, which included lengthy pre-sentence reports in each case. He had regard to their previous offending, and the fact that although Long was guilty of more offences in the past, Morris had had a previous serious specified offence of robbery in his background. He referred to the fact that both appellants had been on licence at the time of this offending. He bore in mind recent authorities such as Kehoe [2008] EWCA Crim 819 [2009] 1 Cr App R(S) 9, and what was said there about life sentences under section 225 of the Criminal Justice Act 2003, as amended, being reserved for those cases "where the culpability of the offender is particularly high or the offence itself particularly grave." However he regarded these offences as falling within those descriptions as being offences which were particularly grave where the offender's culpability was particularly high. He therefore sentenced them to life imprisonment in each case and to the specified sentences to which we have referred.

Morris was born on 10th March 1986 and is now 23. His previous sentences include 16 convictions in respect of 22 offences, beginning in 2001 and culminating before these offences in a robbery for which he was sentenced in 2006 to 33 months in a young offender institution.

Long was born on 8th March 1987 and is now 22. He had received 23 previous convictions in respect of 87 offences commencing in 1998 and culminating in a sentence of 15 months in a young offender institution for aggravated vehicle taking and other offending.

The careful and detailed pre-sentence reports in each case have particularly worrying features. It appears that Morris and Long met each other through Morris's relationship with Long's sister. It would seem that it was the circumstance of their meeting and combining together to perform offences of the kind we have described in this judgment which set each of them particularly acting together upon a hugely escalating series of offences which far outstretched their previous criminality. They both abused drugs and alcohol but the probation officers reporting in these reports do not ascribe their offending to the need to feed their addiction. It appears that, although their addiction was perhaps one element in their offending, another element was the desire for financial gain, but most worrying of all was the fact that neither of the offenders could rationalise or explain in any way their motivation for these offences. However, each of them sought to minimise his own offences and responsibility, while blaming the other. Although Long was pleading guilty, it was said that he struggled to comprehend that he was accepting guilt. This was despite a letter which was handed to the judge (to which the judge refers in his sentencing remarks) saying that he was deeply sorry to be standing before the judge for what he himself described as horrific crimes.

It is against the background of this offending and these reports and sentencing remarks that today Mr Jarvis on behalf of Morris and Mr Lowe on behalf of Long have joined in submissions with a common theme to this effect. First, that they both accept that the appellants are dangerous, within the terms of the dangerous offender provisions of section 225 and following of the Criminal Justice Act 2003, and that the judge would have been wholly justified in imposing sentences of imprisonment for public protection upon them. However, they submit that the specified terms of seven-and-quarter years and 8 years, specified by the judge, were too long when compared with previous jurisprudence referred to in the Sentencing Guidelines Council's Definitive Guidelines for robbery. They submit that the guideline range for particularly serious offences of robbery, in the home, is in the 13 to 16-year range, on the basis of a trial and on the basis of the absence of relevant previous convictions. They submit that the judge's starting point of 24 years in the case of Long and 22 years in the case of Morris are too far outside that range. They submit that the judge should have taken a starting point of less, although they do not submit that it should be much less.

Turning to the separate ground that the judge was in error in imposing a sentence of life imprisonment, they submit, by reference to the case of Kehoe, which we have already mentioned, that the question of dangerousness is entirely catered for by an available sentence of imprisonment for public protection, which is to all intents and purposes, in terms of the protection to the public against such dangerous offenders, the equivalent of a life sentence, with the only difference being that there is a possibility, but no more than a possibility, that following release by the Parole Board, upon licence, the licence period might be determined at the end of 10 years.

They point to the fact that there is no real guidance other than the general principle, to which we have referred, laid down in Kehoe as to when a sentence of life imprisonment is justified in the modern world of the 2003 Act apart from the additional comment of David Clarke J in the case of R v Porter [2006] EWCA Crim 2857, [2007] 1 Cr App R(S) 115 at paragraph 33, itself referred to in the judgment of this court in Kehoe, where it is said "particularly where there is a high level of criminal intent, for example, in cases of attempted murder and no doubt in other types of case."

In this connection, both counsel submit that the essential point about this case is that, when all is said and done about the terrible level of violence and intimidation inflicted upon the victims in the case of these offences, which they do not seek to minimise at all, nevertheless, it still has to be remembered that, violent and terrifying as these offenders were, they restrained themselves and did so repeatedly during their spate of offending from actually using the weapons, which they deployed for the purpose of intimidating and frightening their victims, so as actually to commit violence upon them by means of such weapons. Such violence, as the victim suffered, and we accept that that was very serious, was dealt with by blows from fists and such like.

At the end of the day, despite the extreme level of violence and tenor inflicted upon the victims in these cases, which we would emphasise, as the judge did, and despite the terrible fear and we are sure, lasting fear, which these victims must have experienced and will no doubt continue to experience in their lives, unsettling them in their future in ways which can be imagined but it is difficult to grasp, nevertheless, room must still be left for what are undoubtedly still more serious cases, where weapons are used either gratuitously or by acts of still further intimidation to inflict actual physical injury upon victims. We agree with the submission that room must be left for that still more serious case and that, in that respect, starting as we do against the background of a range of 13 to 16 years, the uplift of 50 per cent in the case of Morris and of not far short of that in the case of Long is going further than previous cases justify. We also accept that for the same reason, the possibility for life sentences should be reserved for the still more serious case, where weapons are used to cause still more serious injuries than the injuries which were caused in this case.

In reaching this conclusion, we have no sympathy whatsoever for these appellants. Of course, we have the utmost sympathy for their victims. We would stress nevertheless that the sentences of imprisonment for public protection, which we impose in place of the life sentences which we quash, are in the way that we have already described in this judgment indeterminate sentences, possibly stretching out indefinitely, over the lifetime of these offenders. They can only be released if they satisfy the Parole Board that they are safe to be released, and when they are released, they remain on licence and subject to recall, potentially for the rest of their life, although potentially that licence could, upon application, in a justified case, be limited to 10 years.

So far as the specified periods are concerned, we would reduce them in the case of Long to 7 years and 3 months and in the case of Morris to 6 years and 8 months. Those are minimum periods which we specify in relation to the sentences of imprisonment for public protection which we impose on them in each case.

We emphasise that those minimum periods represent determinate sentences of twice as long, that is to say fourteen-and-a-half years in the case of Long and 13 years 4 months, in the case of Morris. Moreover, those periods themselves reflect the full discount for an early plea to which these appellant are entitled, so that the starting point for determinate sentences in their cases would have been 22 years in the case of Long and 20 years in the case of Morris. We consider that those starting points, well in excess of the 13 - 16 years range mentioned in the SGC guidelines for violent person robberies in the home by reference to cases such as O'Driscoll (1986) 8 Cr App R (S) 121, and see now Purcell [2009] 1 Cr App R(S) 21, are required by reason of the poor offending background of both appellants, the profligate number of offences involved before us, and the extreme and sadistic nature of the tenor inflicted by these appellants on their victims. We maintain the concurrent sentences on the other counts which the judge imposed. But in respect of counts 6, 8, 9, 11 and 12, in respect of which the judge imposed life sentences, we quash those sentences and replace them with sentences of imprisonment for public protection with the minimum periods already specified. To that limited extent these appeals are allowed.