Thomas, R. v

On 25 June 2010, in the Crown Court at Woolwich, before His Honour Judge Pegden QC and a jury, Aman Kassaye was convicted of conspiracy to rob (count 1), kidnapping (count 2) and possessing a firearm at the time of committing an offence (count 3). On 29 June 2010 Thomas Thomas was convicted of conspiracy to rob (count 1). On 6 July 2010 Jamal Mogg was similarly convicted. Another co-accused, Solomon Beyene, was convicted of conspiracy to rob (count 1). Four further co-defendants, Benjamin McFarlane, David Joseph, Courtney Lawrence and Gregory Jones were acquitted. The jury were unable to reach a verdict in relation to Craig Calderwood. They were discharged and a new trial was ordered. On 4 March 2011, at the same court, before the same judge he was convicted of conspiracy to rob and possessing a firearm at the time of committing an offence.

On 6 August 2010, Thomas Thomas was sentenced to sixteen years' imprisonment. Aman Kassaye was sentenced to two years' imprisonment for kidnapping, sixteen years' imprisonment for conspiracy to rob, and five years' imprisonment for possessing a firearm at the time of committing an offence. Those sentences were ordered to run consecutively, making a total of 23 years' imprisonment. Jamal Mogg was sentenced to sixteen years' imprisonment. On 4 March 2011, Craig Calderwood was sentenced to sixteen years' imprisonment for conspiracy to rob, and to five years' imprisonment for possessing a firearm at the time of committing an offence. Those sentences were ordered to run consecutively, making a total sentence of 21 years' imprisonment.

In each case appropriate directions were given in accordance with section 240 of the Criminal Justice Act 2003 in relation to time spent in custody on remand.

Thomas now renews his application for leave to appeal against conviction following refusal by the single judge. Kassaye renews his application for an extension of time (approximately one-and-a-half months) in which to apply for leave to appeal against conviction and renews his application for leave to appeal against conviction following refusal by the single judge. The single judge granted Thomas, Kassaye and Mogg leave to appeal against sentence. Calderwood seeks leave to appeal against sentence. His application has been referred to the full court by the Registrar who granted a representation order for leading counsel. Because leave to appeal against sentence has been granted to the other three co-accused, we shall grant him leave to appeal.

The facts of the offences can be taken briefly. In a carefully planned crime, Graff jewellery store in New Bond Street, London was the target of a robbery. Arrangements were made to organise the getaway after the robbery had taken place. Very careful arrangements indeed must have been made to dispose of the fruits of the robbery after it had taken place. £40 million worth of jewellery was taken. None of it has been recovered.

On 4 August 2009 there was either an aborted attempt at the robbery, which was to take place two days later, or there was a "dummy run".

On 6 August Kassaye and Calderwood entered Graff jewellery store. They posed as customers. They had been professionally made up to look older than they were. They carried converted hand guns (imitation hand guns which were able to fire live ammunition) which they used to threaten four of the employees who were ordered to the ground and ordered not to look. A fifth employee was forced to open the display cases. In a rapid exercise the two robbers made off with £40 million worth of jewellery. On their way out, Kassaye grabbed hold of a female employee as a hostage. He held her for approximately 40 seconds in order to facilitate the escape. In holding her, he took her out through the security doors. Death threats were made to the hostage and indeed to the other employees.

The two robbers went to the getaway car. One of the security officers employed by Graffs, with great courage, approached them to confront them. At that stage Kassaye fired a shot towards the ground. The case was dealt with by the judge on the basis that it was not proved that the ammunition fired on this or later occasions was live ammunition. He approached the case on the basis that the ammunition may have been blank.

As the getaway car was driven away, a member of the public gave chase. Calderwood fired shots at him. Kassaye left the first vehicle and made away on foot. Again he fired a shot in the direction of the same member of the public.

The precise details of the getaway scheme do not need elaboration. There was a carefully organised arrangement for vehicles to be made available so that the robbers could escape and so that other vehicles could be put in place to block and delay any cars that might follow them.

The getaway car was eventually abandoned within a one-way system, which had itself been blocked by two other getaway vehicles to facilitate the escape. Fortunately, a mobile telephone was accidentally left in the first getaway vehicle. It was this mistake that allowed a full police investigation to take place, which enabled the details of the conspiracy and those involved in it to be examined and eventually put together for the purposes of a prosecution.

CCTV footage showed Kassaye and Calderwood outside Graff's premises on 4 August. They wore the same suits as they wore on the day of the robbery and they had been made up to look older than they were. Among other things, Kassaye wore a false beard and he had bought the mobile phones used in the organisation of the conspiracy.

Thomas was involved in the hiring of trucks used for blocking purposes. He admitted that he had made a telephone call on 4 August 2009 to the truck hire company from a mobile telephone number (ending 8510) from Marble Arch informing them that the hire truck had broken down. This was the number of one of the telephones purchased for the purposes of the conspiracy. It was subsequently used to contact other phones used by the conspirators. It was sited very close to the vicinity of the robbery.

Mogg provided access to an address where a make-up artist was employed on 4 August 2009 to disguise Kassaye. He was also involved in the area when the relevant mobile phones were activated.

Following a press release after this very serious robbery a number of individuals came forward. They identified Kassaye. Several of the men on the CCTV footage were also identified as people who had been made up.

On 20 August 2009 Mogg was arrested. He made no reply to the caution. In interview he denied any involvement in or knowledge of the conspiracy.

On 4 September 2009 Kassaye was arrested. He produced a prepared statement in which he denied any involvement or participation in the robbery.

On 14 October 2009 Thomas was arrested. When cautioned he said that he did not know what the police were talking about. In interview he made no comment.

It is unnecessary to record the brief details of the arrest and response to arrest by Calderwood.

We deal first with the applications for leave to appeal against conviction. The prosecution case against Thomas was that he was involved in the conspiracy. The allegation was based on his involvement in the hiring of the trucks and the telephone calls from the mobile telephone number ending 8510. He had used that number to call the hire company on 4 August 2009. The jury was invited to infer that he must have been responsible for the subsequent calls to the other phones which were used during the course of the planning of the conspiracy.

The defence case for Thomas, who did not give evidence, was that he contacted the truck hire company from Marble Arch on 4 August in order to arrange for the attendance of mechanics to deal with the breakdown, and that he had made no other calls to the telephones used in the conspiracy.

The Crown's case against Kassaye was that he was identified as one of the robbers.

At trial Kassaye gave evidence. His case was that he was not one of the robbers; he was not at the scene; and he was not involved in the conspiracy. He ran an alibi defence. All the identifications of him were wrong. Separately, there was a suggestion advanced on his behalf that there had been no robbery; that the apparent robbery represented "an inside job" which had been arranged by the owner of the shop who therefore, as a matter of law, had consented to what would otherwise appear to have been the theft of his property.

The issues for the jury in relation to both Kassaye and Thomas were whether there was a conspiracy, and, if so, whether each was involved in the conspiracy and whether in the end this was, or may have been, the inside job to which we have referred.

In the grounds of appeal against conviction prepared on behalf of Thomas it was suggested that the judge had put before the jury a version of events which was unsupported by the evidence and which caused prejudice and therefore produced an "unsafe conviction". The single judge, having carefully examine this ground, gave detailed reasons for refusing leave. He said:

A second ground of appeal has been advanced which was not before the single judge. New counsel has been instructed. It is submitted by Mr Davis on behalf of Thomas that the conduct of his defence at the Crown Court was of such a level of inadequacy that the conviction should be regarded as unsafe. In the papers which we have examined much attention is focused on the relative lack of experience of defence counsel -- inexperience contrasted with the application made by counsel that Silk should be assigned to lead him. In the result, a representation order for leading counsel was not made. Looking at the matter in the round, we can see no reason why it should have been. We remind ourselves that Thomas appears to have been the last defendant on the multi-handed indictment. Before his counsel took any part in the process, there were three Silks and juniors instructed on behalf of the first three defendants, and junior counsel instructed for the remaining defendants. So far as Thomas is concerned, although it was alleged that he was involved in a very serious crime, the case against him and the way in which it had to be dealt with reflected neither any significant difficulty nor any great complexity. We have looked for indications among the papers to lead us to the conclusion that counsel's inexperience and alleged incompetence while acting for Thomas may have prejudiced the defence. Apart from the issue raised about the phone numbers, to which we have referred already, nothing has been drawn to our attention to create any concern. In reality, that is not the point advanced by Mr Davis. The principal criticism, and therefore the primary ground of appeal, is based on the circumstances in which Thomas decided that he would not give evidence on his own behalf. It is submitted by Mr Davis that he should have been advised in the strongest possible terms that he should give evidence. Without that advice, he was not sufficiently informed about the decision to be made in his own best interests. All this, it was said, was flagrantly incompetent.

Nevertheless, when the realities are examined, Mr Davis agrees that counsel made it clear to Thomas that the decision whether to give evidence, or to decline to give evidence, had to be made by Thomas personally. It is equally clear that the decision not to give evidence was indeed made by him.

We have examined a document entitled "Endorsement of Decision Not to Give Evidence" that deals with these matters. It is a lengthy document. Given the way in which the assertion is made on behalf of Thomas we propose to set it out in full. It will speak for itself. It reads:

In reviewing the prosecution case the following areas of evidence currently stand against me:"

I understand that the prosecution will say that, although the burden is not on me to prove anything, I have not presented any evidence to challenge or explain the points above."

The particular points are discussed are:"

Although the prosecution referred to my Defence Statement in their opening saying that I had hired the vans for a friend and was not part of a conspiracy, the judge will tell the jury that they must not rely on that as it was not tested by me giving evidence about it.

I understand that of the seven defendants left in this case only Kassaye and Calderwood have elected to give evidence and the other defendants have decided also not to give evidence.

Despite this, I am not just doing what the other defendants have done from pressure by them or anyone else. I have considered my case and the impact this decision will have on me and I know that once I make this decision I will not be able to change my mind and later give evidence.

I have read through this document and had the chance to correct anything that I do not agree with."

That document makes it plain that Thomas knew precisely what the impact of his decision not to give evidence would (or might) be, including the judge's comment to the jury that his decision not to give evidence might count against him and the precise reason why. We do not propose to re-read paragraphs 7, 10, 14 and 17, but it is perfectly obvious that the issue of whether or not the applicant should give evidence at the trial was most carefully analysed in the light of the evidence against him and in the light of the very limited matters which could be advanced on his behalf by counsel in his closing speech. In full appreciation of the difficulties of his case, Thomas made the decision that he would not give evidence.

We can find nothing to suggest that the way in which this important element of the trial was handled by counsel appearing at trial on behalf of Thomas Thomas could in any way merit the epithet "incompetent". In those circumstances his renewed application for leave to appeal against conviction is refused.

We turn to the renewed application by Kassaye. Kassaye's original grounds of appeal alleged that part of the defence case was that the robbery was the inside job that we have described and the complaint was made that the judge failed adequately to direct the jury about what might constitute an "inside job". Pausing there, we believe that the jury would have known precisely what an "inside job" meant without any judicial explanation. It is a colloquial term well understood by everyone.

The second ground of complaint was that the judge had misdirected the jury by telling them that counts 1, 2 and 3, as they affected the applicant Kassaye, had to be treated as if they were the same so that the same verdict would be reached for each. It was suggested that, notwithstanding the practical realities of the case, it might have been possible that the jury would have concluded that the robbery was a staged inside job, while at the same time being satisfied that the victim of the kidnap was unaware of the fact that the robbery was a staged robbery and therefore that she had indeed been kidnapped, in which case the jury could have returned a guilty verdict on that count while acquitting the applicant on the robbery count.

We have described this ground in as clear language as we can, but even as we express it, we find it difficult to see how this issue could have been addressed by the judge to the jury, at any rate, while at the same time leaving them with any idea that he had the slightest grasp of practical realities. In fact, the judge left the issues on each count for decision by the jury.

We have today been provided with a nine page, legibly handwritten document prepared by the applicant himself in which he sets out carefully prepared, balanced grounds. In effect they repeat the grounds prepared by counsel, but they also include some criticism of counsel for the way in which the defence was conducted.

However, the starting point is to remember that the issue raised by the applicant in his defence was that he was not at the premises. This was an alibi defence. The possibility that this crime may have been an inside job, and therefore no crime at all, was a matter of theory and speculation. We pause to note that if the applicant was indeed inside Graff's at the time when the robbery took place -- participating as it was alleged that he had -- and the jury was sure that he was there (as indeed they were in his case, and indeed as they were in the case of Calderwood), neither he nor Calderwood had offered the jury any suggestion which implied in any way that this was not a real robbery, that they had taken part in it at the behest of the owner of the premises in order to advance whatever fraud or dishonesty the owner was involved in. We therefore emphasise, so that there can be no doubt about it, that there is before us not the slightest shred of evidence that this was, or may indeed have been, the inside job to which our attention has been so repeatedly focused. As we have said, the concept is easy to grasp. The jury would have had no difficulty in grasping it. It did not need any great elaboration.

Much, however, has been made of the way in which the issue was approached. We take one passage from the applicant's own written grounds to indicate the way in which he has elaborated on these matters. At page 9 he says this:

However, given the total absence of any evidence on these matters, and assuming (because we are told so by the applicant), without examining, that it is indeed correct that counsel worked from the two different platforms identified by the applicant, the truth is that the investigation of this part of the case in the course of the trial was entirely speculative.

In refusing leave the single judge dealt with the written grounds prepared by counsel which cover these matters. His observations apply equally to the new nine page document containing amplified grounds which we have considered today. Again, as before, he dealt with them in some detail. He said:

We turn to the appeals against sentence. Kassaye is 25 years old. He has three previous court appearances which are of no relevance and his previous sentences have been non-custodial.

Thomas Thomas is 46 years old. His convictions are ancient and have no relevance to the sentence in this case.

Jamal Mogg is 43 years old. He has made a number of court appearances right through until 2009, largely for offences of dishonesty. He has had a variety of different sentences imposed on him, the longest of which was imposed in 1997 for twelve months. Again, his convictions have no significance in the context of this case.

Craig Calderwood is 28 years old. He has nine previous court appearances up to 2009 for a variety of offences relating to violence, property, fraud, dishonesty and so on. The sentences imposed on him have ranged from non-custodial sentences to a single sentence of imprisonment for three months which was imposed in 2008. Accordingly, his convictions are of no relevance when set against the crime with which the judge had to deal.

In his sentencing remarks the judge summarised the essential features of the trials over which he had presided. In sentencing Calderwood (and the same applies to the others) he said that this particular robbery, carried out where security was extremely high, required meticulous planning and a very significant number of conspirators. He recorded that the fear of the public on the street was plain to be seen from the CCTV footage. That fear was also partly captured on mobile phone footage which recorded the screaming in the street when the first shot was fired. The terror and trauma of the staff in particular lay at the heart of the case, although the judge had in mind the terror and trauma which was visited on other members of the public. He identified the significant aggravating features of the crime. They included: the carrying, use and discharge of the firearm in a busy public street by men who were disguised; the death threats to members of the staff; the terror and life-long trauma caused to the staff who believed that they would be shot; the very high value of the property taken; the fact that it was not recovered; the meticulous and detailed planning, coupled with the number of people who must have been involved, together with the measures used to achieve their goal, to make their escape and to avoid detection. When sentencing Calderwood, the judge suggested that this robbery fell into the most serious category of commercial robberies and that the appellant's own role took him into the "wholly abnormal range of sentences".

That was echoed in his sentencing remarks in the course of the first trial involving the three other appellants. When addressing Kassaye the judge said that his role took him into the "wholly abnormal range of sentences". Having looked at the offence in its overall context with all its aggravating features, the judge came to the conclusion that Kassaye was at the heart of the conspiracy, deeply involved in its planning and in its execution. He took account of such mitigating features as there were.

So far as Calderwood was concerned, the judge expressed the view that Calderwood, too, was at the heart of the conspiracy, deeply involved in its planning and execution.

So far as Thomas and Mogg were concerned, each played an important part in the conspiracy, but they had not entered Graff's and they had not carried or used firearms, or threatened anyone. Accordingly, their roles were lesser. On the other hand, they both knew the target of the robbery; that it was a very high value robbery and, importantly, that firearms would be brandished. Although their individual roles did not take them into the "wholly abnormal range of sentences" which were applicable in the cases of Kassaye and Calderwood, they had still played their parts in a very serious armed commercial robbery.

The main argument advanced on behalf of Kassaye in written submissions is that the judge was wrong to place this case in the category of cases of utmost seriousness or one which was "wholly abnormal", and wrong to impose a consecutive sentence for the offence of kidnapping.

The same argument is put forward on behalf of Calderwood in relation to the "wholly abnormal" nature of the offence. It is also suggested that the judge was wrong to conclude that he was heavily involved in the organisation of the robbery and therefore, to that extent, the judge misdirected himself when taking that feature into account in the course of his sentencing decision.

So far as Thomas was concerned, the argument is that the judge having found that in his case the offence was not "wholly abnormal", a sentence of sixteen years' imprisonment was manifestly excessive, and that he had passed the same sentence on Thomas as he had on Kassaye, notwithstanding that he had attributed a much more significant role to Kassaye, and therefore the sentence was disparate.

Finally, precisely the same point is made in a slightly different way on behalf of Mogg. The role played by Mogg, when compared to Kassaye, meant that he should have a lower sentence. No consideration was given to his lesser role in the conspiracy. The starting point adopted in his case was too high and insufficient allowance was made for his lesser role.

To a large extent in the course of careful arguments advanced on behalf of each of the four appellants, the same matters have been put before us on the hearing of the appeal. In his written submissions Mr Bourne QC drew our attention to a number of sentencing decisions to which we will come, but he suggested that Calderwood was neither a career criminal (as demonstrated by his previous convictions which were in a completely different league to these and irrelevant), nor was he an organiser. He was a "follower not a leader", and therefore he should not have been sentenced in the same way as Kassaye because his involvement was less.

So far as Kassaye is concerned, the argument was slightly different: that it was wrong to describe his involvement as coming within the "wholly abnormal" category; there was nothing absolutely exceptional or horrifying; no submachine guns were taken; and no actual violence resulting in serious injuries was administered to anyone, whether in the shop premises or indeed on the street. The sentence for the kidnapping offence should have been seen as part and parcel of the robbery and therefore a consecutive sentence was inappropriate.

So far as Mogg is concerned, our attention was focused on what were described as his limited antecedents. He was, it was contended, a foot soldier, not an organiser, nor a prime mover. His participation was at the lower end, and it was therefore inappropriate for him to be sentenced in the same way as Kassaye and Calderwood.

So far as Thomas is concerned, our attention was drawn to the fact that he is a man of mature years. This would be his first custodial sentence. It was recognised that his role, as found by the jury, was important, but it was, on any fair view, a lesser role and therefore the sentence was too long. There was an element of disparity as between him and Mogg and Kassaye and Calderwood.

On an examination of these submissions the essential structure is based on the foundation that the judge's use in his sentencing remarks (and on behalf of the appellants it is contended the inappropriate use by the judge in his sentencing remarks) of the words "wholly abnormal" to describe the offence and to explain the sentences was simply wrong. It did not apply either to Kassaye or to Calderwood, and therefore so far as the other two appellant are concerned, they, too, must fall in line with Kassaye and Calderwood. If Kassaye and Calderwood were not within the "wholly abnormal" range, then their range should be described differently and at a lesser level, and therefore correspondingly Thomas and Mogg would also come down in the analysis.

As to this submission, it is rarely wise to approach sentencing decisions as if every criminal offence can be rigidly subjected to linguistic compartmentalisation. That approach does not work. We have examined a large number of sentencing decisions to which our attention has been drawn, not only on behalf of Calderwood, but also on behalf of the Crown. They include: R v Turner (1975) 61 Cr App R 67; R v Reed (1988) 10 Cr App R(S) 243; R v Mehmet Arif and Others (1994) 15 Cr App R(S) 172; R v Farrer (1995) 16 Cr App R(S) 904; R v Greaves [2003] EWCA Crim 3229; R v Betson [2004] 2 Cr App R(S) 52; R v McCartney and Others [2003] EWCA Crim 1372; R v Atkinson and Smith [2005] 2 Cr App R(S) 34; R v Buckley [2008] 2 Cr App R(S) 17; R v Jenkins and Others [2008] EWCA Crim 1372; and Attorney General's Reference Nos 56, 57 and 58 of 2008 [2009] 2 Cr App R(S) 52.

The most important feature of the discussion arises from the well-known decision of this court in Turner from which the words "wholly abnormal" are derived. It is right to notice that the decision in Turner was referred to as recently as the July 2006 Sentencing Guidelines Council's Definitive Guideline on Robbery. That led to a discussion about its significance in the course of Attorney General's Reference Nos 56, 57 and 58 of 2008. Having narrated the facts, Toulson LJ turned to the definitive guideline. In the course of the judgment he repeated the way in which the Council had referred to "Category 5 offences" (professionally planned, commercial robberies), and that the guidance had continued that it was unnecessary to provide specific suggestions as to the sentencing range or the appropriate starting point for such cases because for them "existing case authority is still valid and this is summarised in Part 2". He then set out the passage contained in Part 2 as follows:

The problem with the Sentencing Guidelines Council's Definitive Guideline on Robbery (at any rate in relation to this aspect of the crime and sentencing for it) is that the reference made by the Sentencing Guidelines Council was not (at any rate so far as the text in Part 2 is concerned) entirely apt. Perhaps the most significant feature of discrepancy is this. The analysis of the sentencing guidance in Turner began by referring to the terms of imprisonment which, in 1975, were served by those who were convicted of murder. In Turner Lawson LJ said (at page 90):

That point was perhaps not sufficiently appreciated when the Sentencing Guidelines Council issued its 2006 definitive guideline. That is unsurprising. The Criminal Justice Act 2003, and in particular Schedule 1 to the Act, which deals with the minimum terms to be served by those convicted of murder, cannot have had any impact on the day-to-day work of the courts (or for that matter the Council), as it only applied to murders committed after April 2005. However, Turner established that there is a relationship -- not a mathematical calculation -- between the level of sentences for murder and for all serious cases involving violence. Therefore it is inappropriate wholly to ignore the simple reality that terms of imprisonment on conviction of murder have become significantly higher now than they were in 1975. In any event, sentencing decisions from 1975 are overwhelmingly out of date. We offer these examples in the context of the present case: first, there was then no minimum term normally to be imposed, save in exceptional circumstances, for the possession of a firearm. Second, there was no sentence of imprisonment for public protection to be applied to the dangerous offender. Third, the court specifically and expressly ignored any questions of possible remission for good behaviour or release in any circumstances, until that change in the sentencing process was brought about as a result of the implementation of the Criminal Justice Act 1991, with automatic release provisions. In sentencing terms, therefore, sentencing arrangements from the 1970s are usually to be regarded as coming from a different sentencing epoch.

In more recent guidance the court addressed the issue arising in this case in R v Jenkins and Others [2008] EWCA Crim 1372, [2009] 1 Cr App R(S) 20 (at page 109). That was a case in which security guards were robbed by men armed with firearms. In giving the judgment of the court Moses LJ said:

This court returned to the issue in R v Twomey & Others [2011] EWCA Crim 8, where there were appeals against sentence in cases of robbery. At paragraph 81 the judgment of the court includes this passage:

In short, therefore, we repeat and emphasise that the sentencing decisions on offences of this kind before Jenkins must be approached with the great caution Turner no longer provides the level of assistance to sentencing judges as it did when it was promulgated in 1975 and when sentences in this class of case are considered, there should be sensible recognition of the broad changes in sentencing practice across the entire range of offences of violence. We further emphasise that the fact-specific nature of the criminal activity involved in each offence remains the paramount consideration.

The present case is one of great seriousness. We have taken into account the arguments advanced before us. Our approach has been to examine the totality of the sentence imposed on each of the appellants. We are satisfied that the trial judge was well able to assess the role of each appellant, and where on the ladder of criminality each stood and the importance of the part played by each in the achievement of the overall enterprise. In the context of the totality, it is possible to argue on behalf of the other appellants that the sentence on Kassaye may have been slightly less than it might have been. But in the end we can find no argument on disparity or unfairness in the way in which the judge produced total sentences on each of the appellants in relation to each other.

Looking at this as a matter of totality, the conclusion to which we have come is that none of these sentences is either manifestly excessive or wrong in principle. Accordingly, the four appeals against sentence must be dismissed.