Mayers & Ors, R. v

This is the judgment of the court to which all members of the court have contributed.

These 10 cases have been heard together because although the appellants were tried in two separate trials, the convictions arise out of the same incident and the challenges which are now made to the sentence of each appellant have certain common themes. Further it is right that in considering the appropriate sentence for each appellant, the court should have regard to the sentences which were imposed on the other appellants and to the extent that any challenge succeeds, any adjustment to the sentence should have regard to the court’s findings in relation to the other appellants.

During the hearing we gave leave to those appellants who did not otherwise have leave (in whole or in part) and in relation to Baker, we grant an extension of time (4 weeks and one day) in which to renew his application for an extension of time (3 days) for leave to appeal against sentence and a representation order for junior counsel to Baker.

On 5th January 2017, in the Crown Court at Maidstone, the appellants, Danquah, Mayers, Myers, Jenks, Miller, Baker and Alieu were convicted after trial of conspiracy to rob. Each of the appellants was found not guilty of the offence of carrying a firearm or imitation firearm with intent to commit an indictable offence.

In addition, Myers was found guilty of a separate offence of possession of a disguised firearm in the form of a Taser disguised as a torch.

On 13th January 2017 they were sentenced as follows:

On 24 May 2017 the appellant, Kenny, pleaded guilty to conspiracy to rob and not guilty to possession of a firearm offence with intent to commit an indictable offence.

On 12 December 2017 the appellants, Issah and Smillie (and another) were found guilty after trial of conspiracy to rob and acquitted of the offence of possession of a firearm with intent to commit an indictable offence.

On 19 January 2018 Issah, Smiley, Kenny (and another) were sentenced as follows:

Two other participants in the attack (Dewson and Ali) have separately pleaded guilty to conspiracy to rob. Four further alleged participants are awaiting a trial/retrial. This court is not concerned with any of these individuals.

The facts of the case were that on 26 April 2016 a group of in excess of 17 men attacked a travellers site at Wheat Gratten Stableyard in Kent. The attackers wore dark clothing as well as wearing face masks or balaclavas. They were armed with a variety of weapons. They had prepared in advance a collection of cable tie handcuffs ready to restrain the victims. They stormed the site and attacked victims in their homes. One of the travellers, Mary Powell, was tied up with cable ties and threatened and her husband was punched and tied up. Another, Moses Smith who came out of his caravan when alerted to the attack, suffered blows to his head and stab wounds to his arms and leg: his wife and seven children were in the caravan. The caravan of Mr Connor and his partner Cherry Powell and their four children was attacked, Mr Connor and his partner were tied up with cable ties

The attack had been planned some time before 26 April 2016. It was an agreed fact at trial that the police had information that the site was connected to the unlawful supply of controlled drugs and that large sums of money had been held there. The judge inferred that the attackers expected large sums of money to be on site and hidden.

On 25^th April a meeting was held in Tunbridge Wells between a number of participants and a reconnaissance was made of the site.

Purchases of items to be used in the attack were made: CCTV showed appellants, Myers and Jenks, purchasing items, including cable ties, from Poundland in Tunbridge Wells on the day before the attack. Other participants were shown by CCTV purchasing items including demolition bars and wrecking bars from B&Q in North London on the evening of the attack. Items taken to the site included wrecking bars, reinforced tape, cable ties, crowbars, a baseball bat, a machete and knives.

On the day of the attack, the various members of the group, including the appellants, met up converging on Wheat Grattan Stable Yard. The group came from North London, South-east London, Essex, Eastbourne and Tunbridge Wells.

The occupants of the site responded to the attack by pursuing the attackers, driving at their cars parked by the side of the road and driving the men from the site.

Moses Smith was treated in hospital for a minor head injury (which was stapled and glued) and stab wounds to the arm and thigh. In his victim impact statement Mr Smith said that the stab wound in his leg still causes him pain and he could no longer work to his full capacity.

As a result of what happened Mary Powell suffered ongoing fear and anxiety (as evidenced by medical reports) and in her victim impact statement Cherry Powell stated that she had suffered anxiety attacks and that her seven-year-old son had been up in the night screaming and not sleeping. Her evidence was that she had been forced to move away from the site altogether as she could not settle.

The taser (the subject of the conviction for possession of a disguised firearm) was recovered from the home address of Myers but was not linked to the attack.

We turn to consider the part played by each of the individuals. The judge found they were all “equally culpable” and knew what was involved. However in our view it is important to consider the actual roles in determining culpability and arriving at the appropriate sentence.

Danquah was involved in the meeting the day before the attack and in the reconnaissance as well as participating in the attack itself. The evidence showed significant phone contact with a number of people involved in the attack. In sentencing, the judge referred to the evidence that Danquah was at the scene with a knife although he did not find that Danquah had stabbed Moses Smith or threatened Mary Powell. The judge also referred to the blood that was found on Danquah’s jacket that matched that of Moses Smith but although the judge found that Danquah was involved in the assault, the judge concluded that he was not the only one. When arrested with Mayers, a cable tie was found in the footwell of the car.

Danquah was 31 at the time of the offence. He had no recent relevant convictions: he had a conviction aged 17 in 2003 for his part in a street robbery (for which he received an 18-month custodial sentence in a young offender institution) and in 2005 convictions for having a bladed article; his other offences were largely drugs related, the most recent being a conviction in 2011 for supply of class A drugs.

Myers was described in the sentencing remarks as the “communication hub”. He also was involved in the purchases of equipment in preparation for the attack as well as participating in the attack itself. A glove with his DNA was found within the site close to the fence.

He was 30 at the time of the offence. In sentencing the judge referred to his record showing offences of disorder, violence and drug supply noting that the “frequency of offending has diminished” and that this offence represented “an escalation in your record”. His most recent conviction was in 2010 and whilst this was a conviction for battery, it was dealt with by the magistrates court resulting in a custodial sentence of 16 weeks. His other offences were largely drug-related.

Mayers was not involved in either the planning or the purchases of equipment but in sentencing the judge expressly found that he had entered the site. The prosecution submitted that given the dark clothing and wearing of disguises, it was not possible (in the absence of specific evidence such as DNA evidence) to say what an individual did in the course of the attack. Mayers was arrested with Danquah around midnight following the attack and the car they had used was seized. A cable tie was found in the driver’s footwell.

Mayers was 31 at the time of the offence and had no relevant recent convictions: he had one conviction for having a bladed article in 2004 and a number of other offences, primarily drugs related, of which the most serious and most recent, was a conviction for supply of class A drugs in 2011.

Alieu was not involved in the planning or the reconnaissance. He was also not involved in the purchases. According to the prosecution, Alieu was contacted by Baker late on the 25^th April. He was at the scene but there was no specific DNA to link him to particular incidents.

He was 30 at the time of the offence. He had no recent convictions for violence although he was convicted in 2008 of robbery for which he received a five-year custodial sentence. We understand from counsel that the robbery was as part of a group against a jewellers’ shop and that this involved the use of a hammer but that no injury resulted to any person. His recent convictions in 2012, 2014 and 2016 are drugs related.

Baker was not involved in reconnaissance. He brought Alieu and another to the site. His car was found abandoned at the scene.

He was 26 at the time of the offence. His counsel accepted that he was “heavily convicted” (23 convictions for 59 offences) but there were no recent relevant convictions and although he was found guilty of robbery in 2007 and 2009 these were accepted at trial not to show propensity.

Jenks was involved in the purchases and was in contact with Myers and Kenny. There was evidence that he provided postcodes by text message to Kenny on the 25^th and 26^th.

He was 22 at the time of the offence and had no recent relevant convictions: an earlier conviction for robbery in 2008 was when he was aged 14 and his most recent conviction was in 2011 for shoplifting.

Miller was a “late” recruit. He was not involved in the purchases of equipment or in the reconnaissance. Although phone evidence placed him in Tunbridge Wells at the relevant time, counsel submitted that Miller did not attend the meeting in Tunbridge Wells the day before the attack, although counsel accepted that Miller did attend the meeting in Sussex on the day of the attack. There was evidence of significant phone contact with Jenks over the two day period leading to the attack. His car was found abandoned at the scene.

He was 20 at the time of the offence and had no previous convictions (only a caution in 2013).

Issah was involved in the reconnaissance but not otherwise in the planning or organisation. He was 22 at the time of the offence and had not previously received a custodial sentence.

Smillie was present for the purchases and was involved in the reconnaissance. The prosecution submitted that there was evidence of significant contact with one of the other participants and he was there on both 25^th and 26^th.

He was 23 at the time of the offence and had no relevant convictions.

Kenny took a crowbar to the site which was found inside the site near the fence. He was not involved in the purchases or the reconnaissance. His basis of plea that he did not foresee the use of violence was not accepted by the sentencing judge (and he elected not to give evidence on the issue).

He was 23 at the time of the offence and had no recent relevant convictions.

A common theme of these appeals has been that the judge applied the wrong guideline and/or that he erred in his approach to the guideline for robbery in a dwelling. On the face of things the appropriate guideline would appear to be that for robbery in a dwelling, but in the course of his sentencing remarks the judge also made reference to the robbery guideline for a professionally planned commercial offence. He appears to have made reference to the latter guideline because, as the guideline shows, it is concerned with robberies involving a significant degree of planning, sophistication or organisation, as was plainly the case here. That explanation is included in that guideline primarily to distinguish it from a third guideline concerned with street and less sophisticated commercial robberies. In our judgment, this case was essentially one which targeted occupied dwellings and should have been approached by reference to the guideline for robbery in a dwelling. That guideline is well capable of providing for an offence which is sophisticated and organised in nature and involves targeting or obtaining very high-value goods in circumstances where physical injury or psychological harm is caused to the victim.

The judge said that in his view the case did not fit squarely into either guideline but we disagree for the reason already given. He went on to say that he was satisfied that the offence had a starting point which fell outside the guidelines since it was an exceptional case. When he came to pass sentence, he did not make reference to any starting point or range within either guideline although he said that they assisted the court generally. There was no need to refer to the professionally planned commercial robbery guideline at all but the judge’s sentencing remarks show that he did not in fact apply it in any particular way, choosing instead to sentence with a broad-brush approach.

Applying the robbery in a dwelling guideline, this case clearly falls into the top category, Category 1A. This was a highly organised offence involving the production and use of weapons including bladed articles to inflict or threaten violence and it was reasonable to infer that very high-value sums were targeted. The significant harm that was done to victims (notably the psychological harm) and some ransacking of property were also features of the offending even if they fell short of the top levels of culpability and harm. There is no serious dispute by the appellants as to this categorisation.

The guideline shows for Category 1A a starting point of 13 years’ custody with a range of 10 to 16 years. That sentencing table at step 2 is preceded by these words:

“In a case of particular gravity, reflected by extremely serious violence, a sentence in excess of 13 years may be appropriate.”

That reference to 13 years is clearly an error, since the range in Category 1A itself permits the court to increase the sentence to one of 16 years. The cause of that error can be traced back to the Sentencing Council’s consultation paper which, at that stage, for a Category 1A offence, was showing a starting point of 11 years’ custody and a category range of 9 to 13 years. At that time the consultation paper explained that the wording above the sentencing table had been added to give guidance where cases may fall outside the guideline. When the definitive version of the guideline was promulgated it is clear that there was a failure to substitute the figure of 16 years in place of the 13 years which appears. It was accepted before us that an error had been made.

Accordingly, the definitive guideline is to be read as if the words above the sentencing table referred to a sentence in excess of 16 years as being appropriate in a case of particular gravity.

In this case the starting point for a Category 1A case is 13 years, but that falls to be adjusted by reference to multiple features of culpability or harm and by aggravating and mitigating features. In this case there was a significant number of aggravating features. The offence was committed at night; the offenders were disguised; occupants of the site were tied up; a significant number of victims were women and young children; at least one victim had to leave her home as a result of this offending. In addition, the offence was committed by a very large group of men in numbers designed to overwhelm the caravan site. Whilst the guideline is clearly predicated upon robbery of a single dwelling, in this case at least four dwellings were attacked and the number of victims affected was significantly larger than would be the case in an ordinary single dwelling robbery.

In our judgment, those factors justify the judge’s description of this case as exceptional and would combine to move the sentence significantly upwards from the starting point of 13 years. In addition to those factors which are common to all appellants, the presence or absence of previous convictions will further aggravate or mitigate.

We have come to the conclusion that this case was one of particular gravity, justifying a sentence in excess of the top of the range for a Category 1A offence because of its nature, as already described. There was a submission that the reference to a case of “particular gravity” was confined to those cases where extreme violence had taken place. In our judgment, what took place on the night in question overall may be capable of being so characterised, even if no particular individual sustained extremely serious injury. In any event, the nature of this case was exceptional and particularly grave and would justify sentencing in excess of the category range, since in the circumstances we are satisfied that it would be contrary to the interests of justice to do otherwise. Counsel did not resist the proposition that such an approach was legitimately open to the court.

Five of the appellants (Danquah, Myers, Mayers, Alieu and Baker) were assessed as dangerous within the meaning of section 226A of the Criminal Justice Act 2003 and were sentenced to extended sentences. The judge referred to the leading authority of Lang [2006] 2 Crim App R 3.

The submission that the judge applied the wrong approach in assessing future risk, an argument based on criticisms of the observations of Lord Phillips in R vSmith (Nicholas) [2011] 1 WLR 1795 by Lord Mance in R (Sturnham) v Parole Board [2013] 2 AC 254 is in our view met by the decision in R v MJ [2012] EWCA Crim 132 at [26] – [28]. The real issue for the court is whether the judge fell into error in his assessment of the risk in relation to the individual appellants by adopting an approach which reflected an assessment of the collective risk posed by the appellants rather than assessing the future risk by reference to the individual’s own circumstances including both the individual’s role in the index offence and the evidence of past behaviour (including relevant convictions) and personal circumstances.

In sentencing the appellants in question, the judge said:

“The assessment of dangerousness must be made principally on the facts of the offence of which they are all convicted. That being said, the convictions demonstrate a number of relevant previous convictions against a number of these defendants and what might be described with some of them as persistent offending.”

He went on to say:

“Each played a full role in an offence, which given those features or planning, disguise, weapons, threats, restraint and the willingness to use significant violence upon their victims in their homes and in the presence of their children, demonstrate an obvious danger in the future.”

He described the appellants in question as “mature men with previous convictions” but in relation to Jenks and Miller he concluded that they would not pose a risk of serious harm by reference to their offending history and their ages.

The judge did not have the benefit of a pre-sentence report for any of the appellants. Whilst we accept that it may be regarded as normal or usual to obtain a pre-sentence report before making a finding of dangerousness, there is no requirement in the statute or the authorities to obtain one and the judge is not required to accept its findings. We note that none of the counsel appeared to have thought that such a report would be helpful in this case and requested such a report. Nevertheless, the absence of a pre-sentence report tends to support the submission that in this case the judge’s assessment was based almost entirely on the facts and circumstances of the index offence. Had a pre-sentence report been available a more nuanced approach might have been taken.

Whilst (as accepted in Johnson [2007] 1 Cr App R 112) there may be circumstances in which such a finding based solely on the facts and circumstances of the offence is justified, in this case no specific features were identified which would support a finding that a particular individual posed a significant risk. Rather the judge took an approach that they were all equally culpable.

In the absence of specific findings as to what actions supported a finding based solely on the particular circumstances of the offence, we cannot be satisfied that the finding of dangerousness was justified. Further when one looks at the previous offending of each of the relevant appellants, notwithstanding the judge’s comment that there were relevant previous convictions and with some of the appellants, persistent offending, there was in our view, an absence of relevant recent convictions which would support a finding of dangerousness.

Having concluded that the exceptional nature of this offence entitled the judge to take a starting point beyond the top of the range of the guidelines for domestic robbery, we then move to look at the individual roles of the appellants and their personal mitigation. We do not propose to consider the authorities referred to in R v Ibrahim [2017] EWCA Crim 339 (a case to which we were referred by counsel) as in our view the particular circumstances of the offence mean that it is a matter which falls to be considered on its specific and exceptional facts.

In his sentencing remarks (page 8) the judge said:

“the fact that a small number of people may have conceived of the idea does not mean that they take a greater or more significant role… I find that all the defendants knew what was intended and share the responsibility.”

“Later involvement, a late recruit, would not serve to lessen culpability either. It was clear that whoever joined this attack, and at whatever stage, knew what they were joining and what it entailed. What is clear is that all were at Wheat Grattan Stable Yard and all have been convicted of being knowing and willing participants in the conspiracy to rob and I find that all and each of these involved knew intimately what the attack would entail, what weapons were present and entered the site to play their part. They are each equally culpable in my judgment.”

Whilst we stress that the appellants are undoubtedly culpable by reason of their participation in this violent attack, we cannot agree that their role in terms of being involved in the planning and organisation or by contrast being “a late recruit” should be disregarded in assessing the culpability of individual offenders.

Dealing first with Danquah, there are a number of features noted above which indicate that he was fully involved in the offence, both before and during the attack. Accepting that on the evidence it was not suggested that he was the organiser or leader of the group, he bears high culpability for his role. The mitigation referred to by the judge in sentencing, while showing a positive side to this appellant, when weighed against his culpability, the harm and the aggravating factors, does not have a material effect on the overall sentence.

Taking all these matters into account we find that the sentence of 18 years custody was not manifestly excessive.

However, in relation to the finding of dangerousness the judge referred to Danquah’s antecedents of a robbery, possession of a bladed article and sentences for drug supply. The judge noted however that the offending was “an escalation” in his offending history. The judge therefore found that he was dangerous “on the basis of the facts and circumstances of this offence.”

For the reasons set out above, in our view the judge did not give sufficient consideration to the particular circumstances and background of the individual. Notwithstanding Danquah’s role in the attack, particularly the attack on Moses Smith, the DNA on the knife and the blood on the jacket, the judge did not find that Danquah stabbed Moses Smith. Accordingly in our view notwithstanding his participation in the violence, set against the context of his background including the previous convictions, there was insufficient material to support a finding of dangerousness.

Accordingly the finding of dangerousness cannot stand. We quash the sentence of 18 years plus an extended licence of two years and impose a determinate sentence of 18 years imprisonment.

Turning to Myers, as noted above, he was involved not only in the attack itself but in its organisation and planning and the sentence must reflect this culpability. We have regard to the mitigation referred to in the sentencing remarks and the absence of recent relevant convictions.

In relation to the finding of dangerousness, there is nothing in the facts found by the judge in respect of Myers’ role in the offence which would support a finding of dangerousness beyond participating in the attack. Taken in the context of his background and previous record there was nothing to support a finding of dangerousness based on his role in the offence.

It was submitted for the appellant that the sentence for the taser should have been concurrent not consecutive to reflect overall criminality. It was submitted for the appellant that the sentence for conspiracy already reflected the overall seriousness of Myers’ offending.

The judge in sentencing rejected the submission that there should be a concurrent sentence on the basis that that would in effect mean that possession of the disguised firearm would go unpunished.

Having regard to the sentencing guidelines for Offences taken into Consideration and Totality, the judge is entitled to impose a consecutive sentence where the offence arises out of unrelated facts as was the case here. The judge reduced the statutory minimum sentence to reach a just and proportionate sentence and his approach was not in error.

Accordingly for these reasons the finding of dangerousness cannot stand. We quash the sentence of 18 years plus an extended licence of two years and impose a determinate sentence of 18 years custody for the offence of conspiracy to rob and 3 years for possession of a disguised firearm to run consecutively.

Mayers’ culpability derives from his participation in the attack but it is reduced through his absence of any role in the planning or purchases. We also have regard to the mitigation referred to by the judge. In our view, taking into account the aggravating features referred to above and the individual mitigation of Mayers, the sentence of 18 years was manifestly excessive.

Based on Mayers’ involvement in the offence, there was an insufficient basis for the judge to conclude that Mayers poses a significant risk for the future and there is nothing in the recent history or circumstances of the appellant which taken together with the participation in the offence would support a finding of dangerousness. In sentencing the judge expressly stated in relation to Mayers:

“this is an offence far beyond your previous offending and certainly amounts to an escalation.”

We note for completeness that counsel for Mayers before this court also sought to rely on evidence from a consultant psychiatrist in this regard. However, in our view such evidence did not bear on the question as the judge had made his finding of dangerousness solely on the basis of the facts and circumstances of the offence although we derive some comfort for our conclusion from the psychiatric evidence.

Accordingly, we quash the sentence of Mayers and impose a determinate sentence of 16 years imprisonment.

In sentencing, the judge took the view that he did not see any basis upon which to distinguish his involvement from the others. However, Alieu was not involved in planning or preparation of the offence and in our view, this is a basis upon which to distinguish his involvement. Accordingly, the level of his culpability derives from his participation in the attack. We also take into account the mitigation which was referred to by the judge in sentencing. In our view the sentence was manifestly excessive and must be quashed.

The judge found Alieu to be dangerous on the basis of the circumstances of the offence. For the reasons discussed above and having regard to the absence of recent relevant convictions, we are of the view that the judge fell into error in his approach in relation to Alieu and the finding cannot be sustained.

In our view the appropriate sentence is a determinate sentence of 16 years imprisonment in place of the 18 years imposed.

In sentencing Miller, the judge drew a distinction in relation to his age and background but took the view that he was a “full party” to the offence. In our view Miller’s culpability is less than others in that he was not involved in the organisation or planning including the purchases of equipment. We also take into account his relative youth and his absence of previous convictions, both factors which constitute significant mitigation in our view, as well as the evidence of his personal circumstances.

For these reasons we find that the sentence was manifestly excessive. We quash the sentence of 16 years and impose a sentence of 13 years imprisonment.

In sentencing the judge referred to Jenks’ difficult childhood and the efforts that he had made and his achievements since 2011. He noted that:

“there are some prospects for the future”

and he reduced the sentence to reflect his youth and limited record.

In our view although the judge correctly adjusted the sentence to reflect the mitigation of youth and absence of recent convictions, he failed to address culpability by reference to his role and as a result the sentence was manifestly excessive. We therefore quash the sentence of 16 years six months and impose a sentence of 14 years imprisonment.

The judge in sentencing stated that he did not see any basis upon which to distinguish the involvement of Baker from the others. For the reasons set out above, in our view he fell into error in this regard. We therefore assess his culpability on the basis of his involvement in the attack and distinguish him from others who were involved in the organisation and planning. In determining the appropriate sentence, we take into account the mitigation in his case including his background, his family and the personal information made available to the court which taken together are material mitigating factors. Although the judge referred to persistent offending, we note that the offending is not recent. Accordingly in our view the sentence was manifestly excessive.

In relation to the finding of dangerousness, this was based principally on the circumstances and factual background of the offence. For reasons that we have already set out above, in the absence of specific findings in relation to Baker which would indicate a risk, the circumstances of the offence when weighed against his background circumstances leads us to the conclusion that such a finding cannot be upheld.

We therefore quash the sentence of 18 years with an extended period of licence of two years and impose a determinate sentence of 12 years imprisonment.

In our view, as in the case of Miller, Issah’s culpability is less than others in that he was involved in the reconnaissance but not otherwise involved in the organisation or planning. We also take into account his relative youth and his absence of previous relevant convictions; both factors which constitute significant mitigation in our view, as well as the evidence of his personal circumstances as referred to by the judge in sentencing.

For these reasons we find that the sentence was manifestly excessive. We quash the sentence of 16 years and impose a sentence of 14 years imprisonment.

In our view, Smillie’s culpability is less than others in that he was not involved in the organisation, but greater than others, being involved in the reconnaissance and the purchase of equipment. In determining the appropriate sentence, his relative youth is a material factor by way of mitigation as is his background.

For these reasons we find that the sentence was manifestly excessive. We quash the sentence of 16 years and impose a sentence of 14 years imprisonment.

It was submitted on Kenny’s behalf that he was vulnerable and counsel relied on a report on his cognitive function that indicates that he is at the bottom of the low average range in terms of IQ although counsel accepted that he did not have a formal disability. We note however that in his basis of plea he indicated that he expected to receive a significant amount of money/drugs in exchange for his participation and in our view therefore he understood the nature of what was proposed notwithstanding his relatively low IQ. In our view this does not affect his culpability. His culpability is however affected by the absence of any involvement in the planning or organisation but balanced against the fact that he took a weapon to the site. His relative youth is a material mitigating factor and other mitigation is to be found in the references that were before the court.

In our view the sentence was manifestly excessive and must be quashed. The appropriate sentence before credit for the guilty plea would be 14 years and, giving full credit for the guilty plea, we therefore substitute a sentence of 9 years 4 months’ imprisonment.