Saunders & Ors v R

In these three appeals against sentence a non mandatory sentence of life imprisonment was imposed. They were listed for hearing at the same time and, because some of the grounds of appeal appeared to raise issues related to the correct approach to non mandatory sentences of life imprisonment following the changes to the dangerous offender provisions found in chapter 5 of Part 12 of the Criminal Justice Act 2003, as amended by the Criminal Justice and Immigration Act 2008, effected by ss.122-124 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”), they were heard sequentially.

The LASPO provisions came into force on 3 December 2012. As part of the submissions made on behalf of one or more of these appellants, it was suggested that as the new regime was clearly in contemplation at the date of sentence, and indeed in full force in relation to the sentencing decisions of those convicted on the dates when the offenders came to be sentenced, the earlier provisions should be regarded as having fallen into desuetude. That submission was unsustainable.

In the absence of express statutory language, whether the new regime will be more or less draconian than the regime which is being replaced, the sentencing court is not entitled to anticipate new sentencing provisions before they actually come into force. (See Att-Gen Ref No. 55 of 2008) (R v C) [2008] EWCA Crim 2790 and R v Instone [2012] EWCA Crim 1792.) Moreover, and by way of further emphasis, if it were otherwise, the consequent impact on release provisions (which are almost as prone to constant amendment as the sentencing provisions themselves) would be chaotic. The defendant cannot be sentenced on one basis and simultaneously be made subject to licence and release provisions applicable to a different sentencing regime. Therefore for offenders convicted before 3 December 2012, even if sentenced after that date, the sentencing regime in force at the date of conviction applies. In the sentencing decisions now under consideration, the approach of the sentencing judges to this issue was correct.

In view of the detailed written submissions made for the purposes of these appeals, we should take the opportunity to underline a number of features of the regime which will apply to those convicted after 3 December 2012.

There are now four situations in which the sentence of imprisonment for life arises for consideration.

Following conviction for murder, the sentencing provisions are unchanged. A sentence of life imprisonment is mandatory.

Following conviction for a second listed offence under s.224A, of the 2003 Act, inserted by s.122 of LASPO, a sentence of imprisonment for life “must” be imposed, unless the particular circumstances would make it unjust. (See s.224A(2)) In short, there is a discretionary power in the court to disapply what would otherwise be a provision requiring an obligatory sentence. It may nevertheless be convenient hereafter to distinguish between this new provision relating to life imprisonment (which we shall refer to as a statutory life sentence) and the existing and continuing discretionary life sentence.

The sentence of life imprisonment under s.225 of the 2003 Act following conviction for a “specified offence” continues in force; it has frequently been described as the discretionary life sentence. (See, for example, R v Wilkinson [2009] EWCA Crim. 1245). As the court explained in Attorney General’s Ref: No: 55/2008 (2009) 2 Cr. App. R (S) 22:

“The court must consider whether the seriousness of the offence, or the offence and one or more associated offences, justifies the sentence. If it does, however much judicial discretion (or more accurately, judgment) has been introduced into the assessment of dangerousness … a sentence of imprisonment for life “must” be imposed if conditions in s.225(1) and (2) are established”.

In the sense that it identifies the distinction between the mandatory life sentence following conviction for murder and the life sentence imposed in accordance with s.225. This description was correct, but it is open to the criticism that when the statutory conditions in s.225(1) and (2) are established it “must” be imposed. In that broad sense, therefore, this sentence, is also statutory, but it may only be imposed if justified by reference to the seriousness of the offence and the protection of the public in accordance with s.225(1) and (2).

The case of Edwards in this present group of cases provides a very good example of the circumstances in which a discretionary life sentence would continue to arise for consideration if he had been convicted after 3 December 2012. Despite his many convictions for knifepoint robbery, none of them fell within the ambit of the statutory life sentence. The public requires protection from a criminal who repeatedly holds up people owning or working in small shops at knifepoint. He is a danger to the public. The offences are serious. The judgment required of the sentencing court is to decide whether the provisions of s.225 of the 2003 Act apply. Although strictly speaking a reflection of the judgment rather than the discretion of the court, it will be convenient to continue to refer to life sentences imposed in accordance with these provisions as discretionary life sentences.

This leaves open the further question (addressed in the Criminal Law Review at (2013) Crim LR 508 in commentary on R v Cardwell [2012] EWCA Crim 3030) whether a sentence of life imprisonment may be imposed when the case does not fall within either the statutory life sentence or the discretionary life sentence analysed in the previous paragraphs. The jurisdiction to impose a life sentence in an appropriate case has survived the enactment of the 2003 Act and the changes to the sentencing regime affected by LASPO. If it had been intended to abolish it, the appropriate legislative change could readily have been made by provisions restricting the life sentence (other than the mandatory sentence) to the statutory sentence or the discretionary sentence under s.225(1) and (2). As it is, neither the 2003 Act, nor LASPO, imposed any limit on the power of the court to impose a sentence of life imprisonment in such cases. Some of these offences may involve a significant risk of serious harm to the public, but are not included within the list of “specified” offences in the dangerousness provisions in the 2003 Act. One obvious example is the offender who commits repeated offences of very serious drug supplying which justifies the imposition of the life sentence. In circumstances like these the court is not obliged to impose the sentence in accordance with s.225(2), but its discretion to do so is unaffected.

In reality, the occasions when this second form of discretionary life sentence is likely to be imposed will be rare, and no inconvenience has yet resulted from applying the description “discretionary” to both forms of sentence. We have reflected whether any advantages might accrue to sentencing courts if we were able to offer alternative descriptions which would identify the distinction between these two forms of discretionary life sentence. In reality, none is needed.

For those convicted after 3 December 2012, as a result of s.123 of LASPO the sentence of imprisonment for public protection (IPP) created for serious offences by s.225(1) and (3) of the 2003 Act will no longer be available. As we have explained, for dangerous offenders the statutory life sentence under s.224A of the 2003 Act has been abated and the discretionary life sentence remain. In relation to convictions returned before 3 December 2012 the protection of the public from dangerous offenders was achieved either by the discretionary life sentence or IPP. There are relatively minor distinctions between the two sentences which have no direct bearing on the issue of public protection. In relation to the discretionary life sentence, the court was theoretically able to make a whole life order, but, as far as we are aware, no such orders have been made or, if made, upheld. In relation to the IPP there was a supplementary jurisdiction in the Parole Board to give a direction that supervision under licence should come to an end 10 years after release.

In the overwhelming majority of cases these distinctions were irrelevant, and so the IPP was normally sufficient to address the protection of the public from a dangerous offender who would, if made subject to the order, continue to be detained until the Parole Board was satisfied that he no longer represented a risk to the public. (See R v Kehoe [2009] 1 Cr. App. R(S) 9). As the court observed in R v Wilkinson [2010] 1 Cr. App. R(S) 100:

“… as a matter of principle a discretionary life sentence under s.225 should continue to be reserved for offences of the utmost gravity. Without being prescriptive, we suggest that the sentence should come into contemplation when the judgment of the court is that the seriousness is such that the life sentence would have … a “denunciatory” value, reflective of public abhorrence of the offence, and where, because of its seriousness, the notional determinate sentence would be very long, measured in very many years”.

The new statutory life sentence has not replaced the IPP. Many offenders who represent a danger to the public may not “qualify” for the statutory life sentence. Yet, for some offenders, the imperative of public protection continues undiminished, and is not wholly met by the “new” extended sentence. Very long term public protection must therefore be provided by the imposition of a discretionary life sentence. That is consequent on s.225(1) and (2) which, in the context of the discretionary life sentence for serious offences continue, as we have explained, in full force.

S.123 of LASPO abolished the extended sentence created by s.227 of the 2003 Act. It is unfortunate that the description “extended sentence” has been retained by LASPO for the purposes of a sentence which is much more onerous, and therefore in significant respects different, to the “extended sentence”, as created in the 2003 Act.

The LASPO extended sentence produces the result that when the sentence is imposed the offender will not be released during the custodial term until at least the two-thirds point of it has been reached. Where the custodial term is 10 years or more or the offences for which the sentence was imposed included one in schedule 15B, he will not be released thereafter until the Parole Board has directed his release on the ground that his continued incarceration is no longer necessary for public protection. The former extended sentence was amended by the Criminal Justice and Immigration Act 2008, so that release half way through the custodial term was automatic. In relation to public protection as it arises under the LASPO extended sentence, having assessed the appropriate custodial term, the extension period during which the offender would be subject to licence, is limited, in the context of a specified violent offence to 5 years and in relation to a specified sexual offence, 8 years. In any event, of course, in relation to some of the specified sexual offences, the maximum available term is 10 years, or 14 years imprisonment. The maximum term may not be exceeded. It is therefore clear that in relation to the offender who will continue to represent a significant risk to the safety of the public for an indefinite period, the new extended sentence cannot be treated as a direct replacement for the old IPP.

Accordingly, in cases in which, prior to the enactment of LASPO, the court would have been driven to the conclusion that an IPP was required for public protection (on the basis on a judgment made on the particular facts rather than one to which the court was driven by some of the more troublesome assumptions required by the legislation in its original form) the discretionary life sentence will arise for consideration, and where appropriate, if the necessary level of public protection cannot be achieved by the new extended sentence, ordered. The “denunciatory” ingredient identified to distinguish between the circumstances in which the discretionary life sentence rather than the IPP should be imposed is no longer apposite. By that we mean that although the “denunciatory” element of the sentencing decision may continue to justify the discretionary life sentence, its absence does not preclude such an order. As every judge appreciates, however, the life sentence remains the sentence of last resort.

Nothing in this judgment is intended to reflect on whether the approach in R v Pinnell [2011] 2 Cr. App R(S) 168 to the adding of a consecutive sentence to an extended sentence continues to be correct. This particular issue was not addressed in argument.

On 23^rd November 2012 at the Central Criminal Court, following his earlier pleas of guilty, the appellant was sentenced by His Hon. Judge Rook QC on count 1 for rape of a child under 13, contrary to section 5(1) of the Sexual Offences Act 2003, to life imprisonment with a minimum term 8 years. He was given concurrent sentences for various other sexual offences, which we will detail later as we deal with the facts. His application for leave to appeal against sentence has been referred to the full Court by the Registrar.

The appellant is aged 23. He was a photography student. In 2005, when he was only 16, he was convicted of a sexual assault upon a 5 year old girl. He has admitted down-loading sexual images of children since he was 12. The probation officer described him as having an entrenched pattern of sexual offending against children.

In the autumn of 2011, the appellant answered an advertisement on the internet for a baby sitter for G, a little girl then aged 6. He provided the parents with a bogus employment history and bogus references. He said, again untruthfully, that he would provide the relevant criminal records check when it was available. To the parents and prospective employers, he appeared plausible, even charming; he seemed to interact with the child in a most natural way. This was all a front, for he had always intended to abuse G sexually whilst the parents were out. Indeed he literally even wrote the script in advance, describing what he planned to do. Following his script, he introduced G to a so called game. As he lay on the bed, fully clothed, but with an obviously erect penis, he made her to sit astride him and tried to persuade her to open her legs but the girl was reluctant. This was charged in count 7 as a sexual assault on G, a child under 13, contrary to section 7(1) of the Sexual Offences Act 2003. There was a further sexual assault, so charged in count 8, when they were both on the floor and he tried to lift up the child’s skirt; she was uncomfortable and unhappy about this.

All this he filmed, using his photographic skills; he later edited the footage, giving various crude titles, which we need not repeat. He increased the speed of the film, so as to give the impression that he was having intercourse with her. He added a sound track of a girl giggling and then screaming. This was charged in count 8, as taking an indecent photograph of a child contrary to section 1(1)(a) of the Protection of Children Act 1978.

In respect of each of these counts relating to G, he was sentenced to concurrent terms of 4 years.

Having thus abused G, he gave some excuse and left this employment. But he did exactly the same again to another family. He replied to another advertisement, placed by the parents of D, a little girl of 7. Again he appeared charming and caring, and again he was taken on as a baby sitter. Again he wrote the script in advance and this time he even acquired various props. The offences occurred on two consecutive days in April 2012. Again, he filmed what he had done. He lifted D's skirt so as to film her bottom and her vaginal area. He invited her to perform various games that involved stretching and exposing her knickers which he filmed. He made her wear a blindfolds with the words “I love cock” on it; this was charged in count 4 as causing or inciting a child under 13 to engage in sexual activity, contrary to section 8(1) of the Act. He put various phallic objects in her mouth asking her to guess the taste. All this was in the script he had devised in advance. He then covered his erect penis in a chocolate and twice put it into the child's mouth; this was charged in count 1 as oral rape of a child under 13, contrary to section 5(1) of the Act. On another occasion, having bought an Avatar costume, he cut out the area around the bottom and got the child to sit astride him bouncing up and down on his erect penis, this was charged in count 32 as a sexual assault on a child. At one stage her vaginal area can be seen touching the shaft of his exposed erect penis; this was charged in count 5 as causing or inciting a child under 13 to engage in sexual activity, contrary to section 8(1) of the Act. He then professionally edited film footage of the abuse giving it such titles as Pedo Productions. The other incidents during this course of conduct were charged in count 3 as sexual assault on a child and in count 6 as taking an indecent photograph of a child, contrary to the same section of the 1978 Act. D reported the matter to her parents, who reported the matter to the police.

When the police searched his house, they discovered the films that he had taken. They also found the receipts and boxes for the costumes he had bought, presumably as some kind of memento or trophy of what he had done, together with the script of his planned activities, to which we have already referred.

Nor was this all for on his computer, the police found over 4,000 indecent images of children, some being at level 4 and 5 on the Copine scale. He had also filmed young children in his area playing, they were clothed but he focused on their genital area. These activities gave rise to a series of other counts: being counts 17 – 21 and 25 – 31 of making indecent photographs of children, and counts 22 – 24 of possessing a prohibited image of children contrary to section 62 (1) and 66(2) of the Coroners and Justice Act 2009, which gave rise to concurrent sentences of 1 and 2 years.

He was asked in interview about the indecent images, he said that he considered the children to be willing participants. He told the writer of the pre-sentence report that, after a time, viewing was not enough and he wanted to be part of it.

The police also found a diary, which set out in disturbing detail how to abduct, sexually abuse, kill and dispose of a child. He wrote of selecting a girl at a particular primary school. He wrote that whoever discovered the material had discovered his heart's intent. When asked about this he said that these writings were just fantasy, and that he would never have carried it out,

The pre-sentence report made depressing reading. He had received a Supervision Order for his previous sexual offence, committed when he was only 16. His supervising officer described him as compliant, but he had continuing concerns about the appellant’s sexual preference for young children. He had an entrenched pattern of offending; indeed the appellant himself accepted that he had a sexual preference for children. The writer did not accept that his expressions of remorse were genuine. He was plainly dangerous.

In his sentencing remarks, which accurately summarised this lamentable story, the judge said that the appellant was obsessed with young girls. He was an intelligent young man who misused his talents to plan carefully the systematic sexual abuse of young girls who had been entrusted to his care. He acted out his sexual fantasies without any thought as to the consequences of his actions. It represented a massive breach of trust.

Rehearsing his sexual history, he said that his sexual offending towards young girls was well entrenched. He claimed that he would never behave in this way again but looking at all the material the court was absolutely clear that he represented a high risk of serious harm to young girls from the commission of further offences. By his own admission, there came a time when looking was not enough and he devised strategies so that he could be in a position to abuse young children sexually. In doing so, he had used a degree of guile. The judge said that his actions and admissions showed that he was prepared to act on his thoughts, and furthermore, there had clearly been an escalation in his behaviour.

He summarised, as we have done, the findings of the probation officer; he accepted the conclusion of the report that the appellant presented a high risk of causing serious harm by committing further specified offences.

In short, he concluded that these were truly grave sexual offences. He concluded that the public would consider that this offence warranted a sentence of denunciatory value and, accordingly, the appropriate sentence on count 1 was life imprisonment.

The judge accepted that he had pleaded guilty at the earliest reasonable opportunity and was entitled to the full one third credit. He considered first count 1 (the oral rape of D); the Guidelines gave a starting point of 13 years, with a range of 11 to 17 years, that, of course being for a person of good character. Having regard to the aggravating factors, he increased the notional starting point to 18 years. If he had been sentencing in relation to G, he would have imposed sentences totalling 6 years, to run consecutively, making 24 years in all; giving credit of one third for the timely guilty pleas, that reduced to 16 years. The minimum term was therefore 8 years with time spent in custody to count towards that sentence. He imposed concurrent determinate sentences for the other offences.

In presenting this appeal, it is accepted by Mr Payne on his behalf that the appellant met the statutory criteria for dangerousness. He argued that the Judge was wrong to impose a life sentence rather than a sentence of imprisonment for public protection or an extended sentence. In any event, it is further argued that a minimum term of 8 years based, as we have said on a notional determinate sentence of 24 years after a trial was manifestly excessive.

In our judgment the life sentence was correctly imposed. The facts we have narrated underline the appalling nature of the offences committed by the appellant. The evidence underlines that, for an indefinite period, he represents a very high risk to children. The problem for Mr Payne is that there is no getting away from the stark, profoundly disturbing facts. The minimum term fell within the appropriate bracket. The appeal is dismissed.

On 10 December 2012 in the Crown Court at Canterbury, following his earlier pleas of guilty, the appellant was sentenced by Her Honour Judge Williams on counts 3, 12 and 17 of rape of three children under 13, contrary to s.5(1) of the Sexual Offences Act 2013, to life imprisonment with a minimum term of 76 months. He was given concurrent sentences for various other sexual offences, with which we will deal later. He appeals the leave of the single judge.

The appellant is aged 35. He has no previous convictions. However he developed an obsession with and about sexually abusive behaviour in the home, accessing internet chat sites and viewing images of sexual activity between parents and their young children, including pre-pubescent children. He invited others to share such images with him which they did.

The appellant himself was the father of three children, an older son (who was not a victim of sexual abuse) and two daughters who at the material time were 6 years old (M) and 2 years old (V). M had another friend (P), a year or so older than she was.

On 3 March 2012 P returned to her own home after an overnight stay with M. Her father discovered that she was in possession of £2 and asked where she had found the money. The child told her father that she had been given in by the appellant in return for him taking photographs of her without any clothes on and that he had told her not to tell anyone. She said that he had done it before and touched her and M on their genitalia.

The police were immediately contacted. The appellant was arrested. Property, including mobile telephones, were seized during the course of the search of his home. The appellant was interviewed. He denied any wrongdoing. He said that the two little girls had taken a bath although he had ordered them not to, and he had gone into the bathroom to tell them off. Later they had been running around the bedroom in their knickers and so he pretended to take photographs of them to show their mother how naughty they were being. He had given them £2 for sweets as an incentive to be quiet, that is, not silent, but simply to be less noisy.

The explanation was revealed to be a lie when his mobile telephone was analysed. It contained some encrypted material which could not be analysed because the appellant stated that he did not know the appropriate code. But a number of indecent images of the appellant’s own children and other identified children were found on the telephone. There were 55 images at level 1, 7 at level 2, 15 at level 3 and 8 at level 4. Some of these images were still, and some were moving images. From the images it was clear that the appellant’s daughters had already been groomed, because they appeared to be compliant with whatever he suggested. It was also noteworthy that the filming stopped when the camera moved anywhere towards the appellant’s face or when one or other said “daddy”.

We must take our description of what was found when the moving images were retrieved and examined as briefly as we may. The first group (counts 1-4) were taken on 26 January 2012. They showed the appellant with his two daughters naked in the bath. The children took turns to masturbate the appellant, and his penis was filmed in V’s mouth on several occasions. He instructed her to stand with her genitalia close to his face and he filmed close up to her vagina. A few days later on 29 January (count 5) the appellant filmed himself masturbating over the naked vagina of a child, almost certainly V. On 4 February (count 6) the appellant filmed M and P, dancing while naked from the waist up. He incited them to dance in a more sexual manner saying “more, faster”. M knew exactly what was expected of her and exposed her bottom. On the following day (count 7-9) he filmed M standing facing the camera pulling down her knickers to expose her vagina. Shortly afterwards M and P were filmed with their backs to the camera looking out of a window when he approached them from behind, and pulled down their knickers to expose their naked bottoms. On 9 February (count 10) there was a clip of M masturbating the appellant, and on the following day (counts 11-14) M was filmed in the bath with the appellant. She masturbated him and he orally raped her. He rubbed her vagina with his finger and then licked her vagina. At the end he gave her a £1 coin. On 13 February (counts 15-16) M and P were recorded in the bath. The appellant touched M’s vagina with his finger and then cajoled her obviously reluctant friend to open the lips of her vagina, exposing it to the camera.

On the following day (count 17) a clip was made which showed an oral rape of V. A few days later on 21 February (count 18) he recorded himself masturbating to ejaculation over her naked vagina. On 2 March (counts 19 and 20) he recorded M and P on M’s bed. M was naked, on all fours. She pulled her vagina and buttocks apart for the camera. When P asked the appellant if he was taking a picture, he denied doing so. Shortly after that he tried to take her knickers off. She asked if she would get £1, he replied “100%”. With that incentive the girl pulled down her knickers and put her legs over her head, exposing her buttocks and vagina to the camera.

After this footage had been retrieved the appellant was interviewed again. He had no comment to make.

The pre-sentence report unsurprisingly concluded that the appellant represented a high risk of further offending in the future. His victims would be children, and if he should have access to them the risk would be imminent. Despite the evidence retrieved from his mobile phones, he was in total denial of his actions. For example he denied that he had any erection or that he had ejaculated over the children. Thereafter he accepted that he had ejaculated over them and over the floor close to them, but denied any sexual attraction or indeed any sexual motivation. He suggested that the police had “made a lot of it”. Then, when he admitted that he had committed some offences, he insisted that they had only taken place on two dates rather than the longer period shown in the retrieved material. The level of denial caused considerable concern to the writer of the report, as it does to us.

The judge approached her sentencing decision in her characteristically robust and sensible way. She immediately recognised the seriousness of the breach of trust, involving not only in the sexual activity with a visiting child, but, obviously, his own two daughters. It was also plain from the retrieved material that the sexual activity with them had begun before the dates first shown on the material. This showed that the filmed occasions were certainly not the first occasion when they had been engaged by him in sexual activity. They had already been taught to perform the acts they did perform. The children had been robbed of their innocence. The effect on them would be long term and traumatic, and they would be confused about the nature of relationships and sexuality.

The appellant had no understanding of the physiological damage he had caused. He had simply used the children as sex objects for his own gratification, to fulfil his perverted interest in children. He was in denial. He had shown no remorse. He represented a very significant risk of causing serious harm to children, and the level of risk posed by him was very great indeed.

We entirely endorse all these observations.

Having identified the considerations which were bearing on her decision, the judge concluded that the crimes were so grave that they called for a denunciatory sentence, to reflect the horror of these crimes. For the offences of rape the sentence would be life imprisonment. In assessing the minimum term, after giving full credit for the guilty plea, the determinate sentence would have been 12½ years imprisonment and the appropriate minimum term was specified as 76 months imprisonment, less the time spent in custody. The sentences on the remaining counts was 3 years imprisonment to run concurrently, save that on counts 18 and counts 21-25 the sentence was 12 months imprisonment also to run concurrently. Appropriate orders following the conviction for such serious sexual offences were also made.

The criticism of the sentence of life imprisonment is that, notwithstanding the seriousness of the offences, such a sentence was not justified. Without minimising the seriousness of the offences, it was suggested that a number of aggravating features present in different cases were absent from the case. Thus, there was no evidence of violence. There was no digital penetration of the vagina or anus, nor any evidence of physical injury or pain. The rape offences, we were told, were limited to oral penetration with a flaccid penis. The culpability of the appellant was not sufficiently high and his offending was not sufficiently grave to justify this sentence. Rather, he should have been subjected to a very substantial sentence taking the form of an extended sentence.

In our judgment as with the previous case, the problem for Mr Webber is that there is no getting away from the stark facts. We are dealing with a man who, after grooming his small daughters, subjected them to oral rape, and in addition, after starting on the grooming process with one of his daughters’ friends, subjected her to the same offence. There was no need for violence: the girls were groomed. For the same reason they did not suffer physical injury or pain. It is true that there was no digital penetration of the vagina or the anus of any of the girls, but in the context of the grooming that had already taken place and what the appellant actually did to them, that is neither here nor there. These were offences of the highest culpability, and the appellant represents a significant serious danger, and will do so for an indefinite period. The appeal is dismissed.

On 7 December 2012 at the Central Criminal Court, following his earlier pleas of guilty, the appellant was sentenced by Mr Recorder Wood QC on 6 counts of robbery contrary to s.8(1) of the Theft Act 1968 to life imprisonment on each count. The sentences were ordered to run concurrently with each other, and concurrently to the sentence to which the appellant was already subject. The period of 8 years was specified as the minimum term under s.82(A) of the Powers of Criminal Courts (Sentencing) Act 2000. On the same date, his co-accused, Kenneth Westfield was sentenced to 6 years imprisonment concurrent on counts 6 and 8 of which he had been convicted by the jury. The application by Edwards for leave to appeal against sentence has been referred to the full court by the Registrar. We shall grant leave.

The appellant was born in 1967. He is a professional criminal. He has appeared before the courts on twenty four previous occasions. To begin with his criminality predominantly involved theft, dishonesty and vehicle taking. However in 1997 he was sentenced to concurrent sentences of 8 years imprisonment following conviction for seven robberies and one attempted robbery, all taking the form of knifepoint robberies of small shops. In October 1997 he was sentenced to 4 years imprisonment consecutive for malicious wounding, an offence which took place when he appeared before the magistrates and produced a weapon, slashing the throat of a prison custodian. Following his release from those sentences, in July 2004 he was sentenced to concurrent sentences of 10 years imprisonment following conviction for five robberies, and 8 years imprisonment concurrently for an attempted robbery, again, knifepoint robberies of small shops, on this occasion committed after having failed to return to prison following day release. He was released on licence from that sentence in January 2012. His licence was due to expire in 2014.

Within a few short months of his release on licence, on 23 April 2012 (count 2), the appellant went into a small newsagent shop in the early afternoon. The shop was being minded by a 70 year old woman. The appellant pulled out a large kitchen knife, and pushed her against the wall and twisted her arm, shouting “Give me the money”. The victim’s niece heard her aunt screaming and came downstairs. The appellant dragged the shop minder towards the counter, and her niece opened the till to get him some cash. A customer came into the shop. The appellant said, “Get out mate, or else I’ll do her”. The appellant then pushed the niece out of the way. He emptied the till of all the notes, saying “Where is the rest?” He pulled the contents of the coin tray into his jacket pocket. He jumped out over the counter and left the shop taking with him between £350 and £400.

This incident had a substantial damaging effect on the niece, but as to the aunt, the niece explained how her aunt was too traumatised to return to work and was unable to provide the police with any statement. In due course the appellant was picked out on an identity parade by the niece and the customer.

A few days later on 30 April 2012 (count 3), in the late afternoon, the appellant visited a chemist shop where he approached members of staff who were working there. Wielding an eight inch long chef’s knife, he said “Give me the money. Where’s the safe?” and “Just give me the fucking money. It will get messy”. A female member of staff opened her till and the appellant ordered her to “stay there. Don’t fucking move. I’ll use this against others in the shop”. He then took about £300 in cash and leaving the shop he said, “No one follow me, or it will get messy, I promise”.

On the following day (count 4) at much the same time in the evening the appellant went into another chemist shop. He was holding a 20-25cm long kitchen knife. He ordered the staff not to move and to open the tills. They then put the cash on the counter and he grabbed it. He grabbed the coins from the till and left the shop with the cash, shouting, “Don’t move. No one follow me”.

A few days later on 6 May 2012 (count 6) the appellant sent a text message to Westfield which read “, I could do with a few quid today. If you want to take a ride local just the pair of us I’m sure we could make it work”. There then followed a number of telephone calls between them. The plan was organised, and Westfield agreed to become involved as a getaway driver.

In the early afternoon the appellant went into a post office and shop, where he pulled out a knife. He ordered the cashier to open the safe and the till. He grabbed another employee around the neck and threatened to stab him. He left the shop with a quantity of cash, as before, ordering the cashier not to follow him, and threatening to stab him if he did. Mobile telephone cell site analysis placed the appellant and Westfield at the scene, and Westfield drove the appellant away from it.

In the evening of the following day (count 7) the appellant went into a shop where he took some products off the shelves, and then after waiting for other customers to leave, he approached the till. There he pulled out a kitchen knife and pointed it at the cashier’s chest, demanding that the till be opened. The staff had cashed up for the evening and the till was empty. The appellant ordered him to “Get the money”. The cashier tried to leave the till area and the appellant lodged the knife between the cashier’s fingers, but the cashier managed to break free and run outside. The appellant grabbed hold of another member of staff by the jacket. He pointed the knife at his chest and demanded the money. He found a cash tray under the till and took a quantity of cash. He then fell and a member of staff grabbed hold of the knife. There was a brief struggle. The appellant fled the scene leaving behind him the knife and the bank notes scattered over the floor.

On the following day in the early evening (count 8) the appellant walked into a chemist shop and behind the till where he produced a 6 inch kitchen knife which he was holding at waist height. He pointed the knife at the chemist shouting “Open the till”. The till was opened. The appellant grabbed the money and emptied the cash tray into a carrier bag. He took about £300 in total as he left the shop.

A passing motorist saw the appellant run out of the shop and get straight into the back of a nearby car. Westfield was in the driver’s seat, and the other seat had been tipped forward to facilitate the appellant’s entry. Westfield drove the car away. The motorist was alert to the situation, and he drove after the car, making a note of the registration number which was later reported to the chemist and passed on to the police. The car was then traced to Westfield. He was arrested. In interview he denied any involvement in the robberies.

The appellant was arrested on 10 May. He made no comment. When produced for further interview, and informed that the police wished to take photographs of him for the identification procedure, speaking generally of the potential witness and victims, he observed “Fuck them. They are little cunts. I don’t give a shit about them”.

In his sentencing observations the judge summarised the relevant facts, noting the impact of the offences on a number of different victims. He was prepared to accept that the appellant had indicated an intention to plead guilty significantly before trial, and that the appropriate discount for this purposes was 25%. So far as the specific offences before the court were concerned, it was accepted on all sides that the case fell into the category of robberies of small businesses where a weapon was produced and used to threaten the victims. It was however an aggravating feature of two of the counts that there was more than one offender, and that the appellant was clearly the ring leader. These offences were clearly planned. The shops were targeted. The judge was unable to be certain that in any individual shop he was aware of any particular vulnerability of the victim, but it was an occupational hazard of robbery of shops of this kind, that the victims might very well be vulnerable.

So far as the appellant was concerned the judge summarised the different occasions when he had been before the courts. The number of occasions was “depressing”. Moreover this group of offences was committed while he was on licence, the first within barely 4 months of his release.

The judge rightly concluded that Westfield was not in the same league. He had no convictions for robbery or offences against the person, and he had not previously received a custodial sentence.

The judge was satisfied that the appellant had demonstrated that he represented a real danger to the public, particularly to those owning and working in small shops. Significant determinate sentences had not deterred him. It was clear that after his release on licence he had begun taking heroin again and started committing the offences to fund his addiction. Despite the guilty plea, the only available sentence was life imprisonment. The appropriate sentence after a trial, given his previous record, would have been 20 years. Making allowance for the guilty plea, the minimum term was assessed at 8 years.

It was submitted on behalf of the appellant that the discretionary life sentence was wrong in principle, first because the offences were not so sufficiently grave to call for the statutory maximum, with particular focus on the sentence imposed on Westfield for two of the robberies after a trial, which, it was said, gave some idea of the true level of criminality of these offences. Moreover if the appellant had been convicted after the new regime relating to dangerous offenders had come into force, the mandatory life term for these robberies would not have arisen for consideration because none of them involved the use of a firearm. In essence, the Recorder was wrong to approach the discretionary life term in the way that he did, in effect as a substitute for an order for imprisonment for public protection.

We are inclined to agree. An IPP sentence was available, and this sentence would have achieved the necessary element of public protection. We do not seek to minimise the seriousness of the robberies committed by this appellant, but on the basis that the sentencing regime in force did provide the necessary protection for the public, these particular offences did not fall within the ambit of the “denunciatory” considerations identified in the sentencing decisions.

It was further submitted that the minimum term was excessive. Attention was drawn to the sentences imposed on Westfield. These were irrelevant. Westfield was convicted on two counts rather than the large number of offences committed by the appellant, but much more important, he had not become a serial robber. Indeed he was not, as the judge put it, in the same league as the appellant. No basis for interfering with this minimum term has been established. Accordingly the appeal is allowed to the limited extent of replacing the sentence of life imprisonment with an IPP. This will not enable the appellant to be released any earlier than he otherwise safely should.