R v Craig Thorpe

On 11 June 2024 an order was made under section 4(2) of the Contempt of Court Act 1981 in the Crown Court at Kingston until further order in relation to one of the counts for which the applicant was sentenced at Kingston Crown Court on that day. That was count 1, a count of conspiracy to steal. We are dealing today with a renewed application for leave to appeal against the sentence that was imposed upon the applicant for count 1, amongst other matters. The purpose of the order was to avoid a substantial risk of prejudice to the administration of justice in the proceedings, namely that reports of the evidence given in the proceedings might prejudice the fair trial of other proceedings. It is clear from the transcript of the prosecution opening of the facts that the concern related to a police investigation that was underway into a third party, not the applicant, relating to a false insurance claim. We were told by counsel today that the police investigation did not result in charges or in a trial of that matter. In any event we do not consider that there is anything in this judgment that would cause a risk of injustice to any criminal proceedings against the third party if any have been or will be commenced. Accordingly, we lift that restriction. It follows that there are no reporting restrictions in relation to the judgment that we are about to hand down.

These are two renewed applications for leave against sentence with, in one case, an application for leave to appeal out of time and a further application to renew out of time. The first application relates to a sentence of imprisonment for public protection ("IPP") with a notional minimum term of five years and six months which was imposed upon the applicant by His Honour Judge Mole at Harrow Crown Court on 21 July 2008 after a trial for the offence of robbery. We will call this the "Harrow robbery".

The applicant was also given a sentence of nine months' imprisonment concurrent for possessing blank ammunition.

The second application relates to a total sentence of six years' imprisonment which was imposed upon the applicant at Kingston Crown Court on 11 June 2024 following guilty pleas for two offences of conspiracy to steal and one offence of fraud. We will call these the "Kingston offences".

As the time spent In custody between arrest and sentence for the second set of offences was spent on recall for the sentence of IPP, the applicant did not receive credit for the time served on remand when he was sentenced in June 2024 for the Kingston offences.

On 22 July 2024 the applicant filed an application for leave to appeal in relation to the Harrow robbery and for an extension of time of 5,818 days to do so. The single judge refused both applications.

Following what appears to have been a misunderstanding between solicitors and counsel, the renewed application for leave to appeal was lodged some 140 days out of time. Counsel only became aware that this had not already been done a few days before the date originally listed for the hearing of the application for leave to appeal in relation to the Kingston offences, which was 4 November 2024. Counsel applied to the court to take the hearing of the application in relation to the Kingston offences out of the list on 4 November 2024 and to relist it with the applications in relation to the Harrow robbery. This was on the basis that if leave to appeal were given in relation to the Harrow robbery, this may affect whether leave is also given in relation to the Kingston offences.

The court agreed, and so the application in relation to the Kingston offences was taken out of the list and was relisted for today so that it could be heard together with the applications in relation to the Harrow robbery.

We should say that if minded to grant leave to appeal and an extension of time for filing the application for leave to appeal in the Harrow robbery, we would not refuse an extension of time for filing the renewal application. It is clear that, whatever the full explanation might be, the fault does not lie with the applicant himself.

This means that there are three matters that we need to deal with today. The first is whether we should grant an extension of time to appeal of 5,818 days against the sentence in relation to the Harrow robbery. The second is whether, if so, we should grant leave to appeal against sentence in relation to the Harrow robbery. The third is whether we should grant leave to appeal against sentence in relation to the Kingston offences.

The applicant is represented pro bono by Mr Nicholas Fooks of counsel, who appeared for the applicant at the Crown Court both for the Harrow robbery and for the Kingston offences.

We will deal first with the applications in relation to the Harrow robbery. The facts of the offence can be summarised as follows. The Harrow robbery charge related to a robbery near Hayes on 2 October 2006 when £500,000 worth of computer chips and iPods were taken. The offence was committed by the applicant with others. The applicant was sentenced on the basis that the judge was satisfied that he was the organiser. He recruited the team to carry it out and he worked out the details. There was a considerable amount of pre-planning. The applicant and a co-defendant worked as security guards for a security company which provided security for a logistics company to which the computer chips and iPods were being sent by lorry. Two people carriers were stolen separately from a Heathrow Airport car park in the days leading up to the robbery.

On 2 October 2024, one of the stolen people carriers overtook the lorry on the A312 and then stopped suddenly, causing the lorry to stop. The applicant and one other man got out of the car wearing balaclavas and brandishing metal bars. They began to attack the lorry, smashing its windows. The driver was pulled from his cab and was struck on the arm with a metal bar. His mate locked the door in an attempt to deny access to the robbers, but his window was smashed and the door unlocked and he was sprayed in the face by a substance which caused burning and stinging.

The robbers then tied up the arms of the driver's mate with tape, put a Balaclava over his head and drove off with him in the lorry. They drove to a car wash where the intention had been to hide the lorry, but before this could be done the police arrived.

Both the driver and his mate were terrified. When the police rescued him, the mate cried out "don't kill me". He suffered flashbacks for a considerable period afterwards.

The applicant was sentenced on the basis that it had not been him who had inflicted the violence but the judge did not think that mattered much. The plan from the outset was to threaten violence so as to intimidate the driver and his mate. The defence, which the jury rejected, was that the robbery had been staged as part of a VAT fraud.

At the time of the sentencing hearing in 2008 the applicant was 29 years old. He was 27 at the time of the offence. He already had a large number of convictions, although many of them were motoring-related. He had been convicted of two relevant offences in 2001. One was the robbery of a pawnbroker and the other the robbery of an off-licence. These were committed when he was 21 years old. In both of these cases the applicant was part of a gang of robbers who were wearing balaclavas, and in both cases another participant carried a gun. He had been sentenced for these offences on the basis that he had been the getaway driver. His licence period for these offences had only just concluded when he committed the Harrow robbery.

The judge in 2008 had before him a pre-sentence report. The report writer said that the applicant's motives in the serious offending were always financial. He told the writer that he had never experienced any mental health impairment. The report writer assessed the applicant as posing a high risk of re-conviction and a high risk of harm to the public, saying that he had an established pattern of committing violent offences for financial gain. The report writer made a proposal that the applicant be sentenced to IPP because he was likely to commit further serious offences in the future and it was likely that those offences would cause serious harm.

The sentencing judge considered whether the applicant satisfied the test for dangerousness in the Criminal Justice Act 2003 and concluded that he did. In light of the finding of dangerousness and having concluded that a life sentence was not appropriate, the judge imposed a sentence of IPP. The judge imposed a determinate sentence of 11 years which meant that the minimum term that the applicant would serve before being considered for parole was half that, five-and-a-half years. The judge imposed a concurrent sentence of nine months' imprisonment for the offence of possessing blank ammunition. In the event the applicant served 12 years and five months' imprisonment before he was released.

In March 2015 the applicant received a report from a clinical psychologist, Dr Gemma Casey. This report had been commissioned by his solicitors for the purposes of a parole application. Dr Casey interviewed the applicant and carried out a number of tests. The results led her to express the clinical opinion, based on the information provided, that the applicant experiences mild (the word was emphasised) impairment as a result of symptoms associated with Asperger's syndrome, now known as Autism Spectrum Disorder. The report did not say that this diagnosis meant that the applicant was not dangerous as defined in the Criminal Justice Act 2003. Rather, Dr Casey suggested that the views that she expressed would help probation officers in dealing with the applicant upon his release from prison. For example, in that any appointment or requirements should be communicated clearly to him.

Shortly after he was sentenced for the Harrow robbery, the applicant lodged an appeal against conviction. That application was refused by the single judge in January 2009. The application was renewed and was refused by the full court on 1 July 2009. Mr Fooks represented the applicant on that occasion.

We have read the full court's judgment. The applicant did not seek leave to appeal against sentence at that stage. Mr Fooks filed grounds of appeal dated 22 July 2024 against the sentence for the Harrow robbery. These have been supplemented by a skeleton argument in support of the application for renewal. There are three grounds. These are: 1. The imposition of a sentence of imprisonment for public protection was manifestly excessive. 2. A determinate sentence should have been passed as the applicant would have had sufficient time to consider his behaviour. 3. The diagnosis of Asperger's syndrome may well have made a difference to the consideration of dangerousness.

We will deal first with the question whether any of the grounds of appeal are arguable. Mr Fooks has drawn our attention to several authorities dealing with IPP. This sentence was abolished by the Legal Aid Sentencing and Punishment of Offenders Act 2012 for all offenders convicted after 3 December 2012, but the abolition was not retrospective and so did not affect sentences of IPP that had already been passed by that date. In Roberts [2016] EWCA Crim 71, this court made clear that a change in penal policy of this nature does not entitle this court to reduce sentences in light of the subsequent regime and that where it was properly open to a judge to pass an IPP sentence in accordance with the law then in force, this court would not revisit the sentence. This was reiterated more recently by a different division of this court in Darren Hilling [2024] EWCA Crim 1279 at [13].

Mr Fooks referred us to the well-known case of Attorney General's Reference No 55 of 2008 [2008] EWCA Crim 2790. In that case Lord Judge, CJ, described IPP as the most draconian sentence available to the court after a discretionary life sentence and said that when exercising its judgment as to whether to impose a sentence of IPP the court should have in mind all of the alternative cumulative methods of providing the necessary public protection against the risk provided by the offender.

As this is an appeal against a sentence of IPP we have carefully considered whether there are any arguable grounds of appeal. There are none. It is not arguable that the sentence of IPP was manifestly excessive. Section 225 of the Criminal Justice Act, as amended by the Criminal Justice and Immigration Act 2008 for sentences imposed after 14 July 2008, provided that where, as here, the offender was convicted of a serious specified offence and the court was of the opinion that there was a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences, then the court may impose a sentence of imprisonment for public protection if the notional minimum term was at least two years. Robbery is a specified offence for these purposes.

The judge in his sentencing remarks made clear that he was aware of the change in the law, asked himself the right question, and applied the correct legal test. The judge cannot be criticised for not referring to Attorney General Reference No 55 of 2008 because it was not decided until November 2008, some four months after the applicant was sentenced. However it is clear from the sentencing remarks at page 10E that the judge considered whether he should impose an alternative sentence that had consequences that were less severe than the sentence of IPP. He did not limit his consideration only to the two options of a life sentence and a sentence of IPP. Moreover, and in any event, on the facts of the case and in light of the recommendation in the pre-sentence report, it is not arguable that the judge was wrong to impose the sentence of IPP. The applicant had been convicted of three serious offences of robbery. In two of them firearms had been carried. In the index offence the robbers had been armed with and had used metal bars. The judge found that the applicant was the organiser of the index offence and that the plan all along had been to bring along weapons and to threaten violence. He was a serious professional criminal. The report writer said that the applicant was motivated by financial profit and, as we have said, recommended a sentence of IPP.

Ground 2, that a determinate sentence should have been passed because it would have given the applicant sufficient time to consider his behaviour, is really just a different way of putting ground 1. The central point is that the judge was plainly right to find that the applicant was dangerous and in those circumstances it is not arguable that he was wrong to impose a sentence of IPP in light of the law as it then stood.

The fact that for reasons that are not apparent from the court file the applicant served considerably longer than the minimum term does not retrospectively mean that the sentence that was passed in July 2008 was manifestly excessive.

As for ground 3, it is, with respect, hopeless to suggest that the applicant's diagnosis of mild Asperger's syndrome in 2015 would have had an impact upon the assessment of dangerousness in 2008. The assessment of dangerousness was based upon the applicant's record of participating in three robberies in which weapons were carried. He was motivated by money to do so. The evidence before the judge suggested that he was likely to carry on doing so and that he posed a risk to the public of serious harm. Nothing in the psychologist's report undermined this conclusion. There was no suggestion there that the applicant's Asperger's syndrome could be treated in a way that might reduce the risk that he posed. The pre-sentence report recorded that the applicant had said that he did not suffer from any mental health difficulties.

Accordingly, the appeal against sentence for the robbery in 2008 is not arguable. That being so, we refuse to grant an extension of time for appealing. We should add however that no good grounds have been put forward for the very long delay in appealing. The only thing that has changed since 2008 is that the applicant received a diagnosis of mild Asperger's syndrome in March 2015. Even then it was over nine years more before the application for permission to appeal out of time was lodged. It appears that this may have been prompted by the decision to seek permission to appeal in relation to the Kingston offences.

We move on to consider the Kingston offences. On 11 June 2024 at Kingston Crown Court the appellant was sentenced by His Honour Judge Mark Bryant-Heron KC for two offences of conspiracy to steal and one offence of fraud, to each of which he had pleaded guilty. The first offence of conspiracy to steal related to the applicant's involvement in an unsuccessful attempt by a group of men to steal an ATM from a garage in Hanworth by loosening it with tools (including an angle grinder) and then by ripping it away from its position on the wall by the use of a stolen boat strap attached to a stolen Range Rover Evoque.

The second offence of conspiracy to steal related to three motor vehicles, one of which was the Range Rover that was used in relation to the attempt to steal the ATM.

The third offence of fraud was not related to the attempt to steal the ATM. This was an insurance fraud in relation to a claim made for the theft of a vehicle, a Ford Fiesta, which the applicant had fraudulently claimed to be stolen.

A number of other counts on the indictment were left on the file and a not guilty verdict was entered in relation to one count at the direction of the judge.

For the offence of conspiracy to steal the ATM, the applicant was sentenced to six years' imprisonment. For the offence of conspiracy to steal the motor vehicles, the applicant was sentenced to two years and three months' imprisonment concurrent. For the offence of fraud, the applicant was sentenced to one year and six months' imprisonment, again concurrent. Accordingly, the total sentence imposed on the applicant was six years' imprisonment.

The applicant was sentenced at the same time as the second man who had pleaded guilty to the conspiracy to steal the ATM. This was Benn Watson. Benn Watson was also convicted of two other counts of handling stolen goods. He was not convicted of the fraud offence. Benn Watson was sentenced to a total of five years' imprisonment.

As the grounds of appeal include a challenge to the inference drawn by the judge as regards the applicant's role in the conspiracy to steal the ATM, we will have to set out the facts in some detail. The attempt to steal the ATM took place shortly after midnight on 10 March 2023 in an Esso petrol station in Hounslow Road, Hanworth. Five men were involved in the attempt. They arrived in two cars, the Range Rover Evoque and an Audi RS3. Four of them were engaged in the attempt to prize the ATM from the wall. The judge accepted that the applicant remained in the Audi throughout. There is CCTV footage of the attempted theft which we have watched. The attempt lasted some 10 minutes. The men who could be seen on the video have masks or balaclavas covering their faces and dark clothing. They used the angle grinder and other tools, including a crow bar, in an attempt to loosen the ATM. Some of the time one of the men stood guard holding a crow bar and could be seen waving away a person or car that was trying to enter the forecourt. There were three unsuccessful attempts to drag the ATM from its moorings using a stolen boat strap and the stolen Range Rover. Eventually the group made their getaway in the Audi driven by the applicant. The amount of cash in the ATM was £19,050. The thieves did not know, of course, how much cash would be in ATM and it could have been considerably more. The attempt caused damage costing some £10,500 to the petrol station.

The offence was, as the judge found, highly organised. The Audi had been taken by the applicant, along with another man, with the connivance of its owner. The applicant went through the pretence of waving a device that reads car key codes, known as a "grabber", in order to stage the appearance of the theft. The owner subsequently made a claim on the car’s insurance which was refused. The Audi was put on false number plates and it was seen around the yard in Harlington that was run by the applicant and outside his home. The Range Rover Evoque had been stolen from Heathrow Airport in preparation for the theft and the boat strap had also been stolen. The Range Rover was also fitted with false plates. Benn Watson pleaded guilty to handling the stolen Range Rover and Benn Watson was also directly involved in the theft of the boat strap.

The judge accepted that the applicant had been at home when both of these thefts took place, but that does not mean, of course, that the applicant had no involvement in the planning and organisation of these thefts. False number plates were put on the Range Rover to facilitate the offence and it was abandoned at the scene. The number plates that were used in the conspiracy were stolen from the boat yard in Waltham on Thames where the boat strap was taken, and from a vehicle inside. Both the applicant and Benn Watson used burner phones in order to minimise the chances of getting caught. There was a substantial amount of other evidence of steps that had been taken involving the applicant in pursuance of the conspiracy. Two yards with which the applicant was associated had been searched when he was arrested. Various items were seized there which, though lawful to own, had been used in furtherance of the conspiracy. It was clear that there had been prior reconnaissance of sites and vehicles, the placing of tracker devices to identify the best point to steal a vehicle, the use of scanning blockers to prevent the identification of the whereabouts of a vehicle and the disguising of a vehicle by removal of its VIN numbers.

After the attempted theft of the ATM, the applicant arranged for the disposal of the Audi. It was driven away on different false plates and ended up in East London where it was discovered by police. The Range Rover and the boat strap were returned to their owners.

As for the conspiracy to steal motor vehicles, this involved several vehicles. The first was a van stolen from a business called JeffVans. The identity of this vehicle was changed when it was recovered. The van was worth £22,000. The second was the Range Rover Evoque used in the attempt to steal the ATM. This too was recovered and was valued by the insurance company at £20,790. The third was another van, a van to which Benn Watson had pleaded guilty to handling. Its value was £33,650. This meant that the total value of the vehicles included in the conspiracy was £76,400.

The defence argued that the conspiracy offence should cover only the first van on the basis that the other two vehicles were the subject of the substantive counts against Benn Watson alone. The judge decided that he did not have to resolve this dispute because the difference in value between the prosecution and defence positions was not material for sentencing purposes. There had been no request for a Newton hearing.

There was evidence before the court of the applicant's wholehearted commitment to dishonesty in relation to motor vehicles. For example, there were messages between the applicant and Benn Watson discussing plans to steal a Ford Fiesta, reconnaissance photos for the purposes of the theft, and a message from the applicant to his girlfriend showing that he was stealing a car.

So far as the fraud count is concerned, the applicant brought a structurally damaged Ford Fiesta and fraudulently reported it as stolen, having first put his personalised number plate on it. In fact the car had not been stolen but it had been disguised by the applicant in a sophisticated way, leading to the insurance company paying out £17,548.

The applicant has an appalling criminal record. He was aged 44 at the time of his conviction. He has convictions for 61 previous offences dating back to 1997. These included a sentence of six years and six months' imprisonment imposed in December 2001 for the two offences of robbery and possession of imitation firearms and, as we have said, in July 2008 he was convicted of the Harrow robbery and he was on life licence for this offence when he committed the index offences for which he was convicted at Kingston and so he was recalled for those offences. This meant, as we have said, that the time spent on remand did not count towards his sentence for those offences.

On 12 October 2013 the applicant was sentenced to a further sentence of eight months' imprisonment for escaping lawful custody and on 7 September 2017 the applicant was sentenced to 49 months' imprisonment for receiving stolen vehicles.

As for the Kingston offences, the judge found that this was sophisticated, planned, organised offending. He sentenced the applicant on the basis that he along with Benn Watson were prime movers in the commission of the offence of conspiracy to steal the ATM. Although his role at the time of the attempted theft of the ATM was limited to driving the Audi to and from the location and remaining there while the attempt took place, the judge was sure that the applicant was closely involved in the preparation and organisation of the offence.

As for the conspiracy to steal the ATM, the judge referred to the theft sentencing guideline whilst bearing in mind that this was a conspiracy. The judge placed the offending in category A, high culpability. The judge was sure that the applicant knew exactly what was planned and how it was to be achieved. He had been party to obtaining the Audi for the purpose of facilitating the offence and was responsible for disposing of the Audi.

As for harm, the judge decided that this lay between £10,000 and £100,000. He bore in mind that the conspirators expected there to be more cash in the ATM than there actually was. There was also significant additional harm consisting of significant property damage and the judge categorised the offending at the top end of category 2 rather than in category 1. This placed the offending at the top of category 2A and the judge took a figure that bore adjustment for aggravating and mitigating factors and credit for plea of three years' imprisonment.

In relation to the conspiracy to steal motor vehicles, the judge again placed the offending in category 2A. This was sophisticated and carefully planned offending. The judge said that the appropriate sentence for this offending, again before adjustment for aggravating and mitigating factors and credit for plea was two years and six months. This was well below the top of the range which was three years and six months.

Finally, as regards the fraud, the judge placed this in culpability category A. This was sophisticated offending as illustrated by the lengths gone to in order to disguise the vehicle to avoid detection. The harm was placed in category 4 since the value of the fraud was significantly higher than the base value for category 4 which is £12,500. The judge decided the appropriate sentence was two years' imprisonment before adjustments for aggravation, mitigation and plea.

The judge declined to reduce the sentence by an equivalent amount because the applicant had been recalled to prison after the index offences as a result of being on life licence. However, the judge decided that in these circumstances he should proceed on the basis that the fact that the applicant had committed the offences whilst on licence was not as serious an aggravating factor as its otherwise would have been.

In light of the aggravating factors, and principally the applicant's previous convictions, the judge increased the sentence prior to reduction for mitigation and credit for plea from three years to four years and six months for the conspiracy to steal the ATM, from two-and-a-half years to three-and-a-half years for the conspiracy to steal motor vehicle and from two years to two-and-a-half years for the fraud offence.

The judge then addressed the mitigating factors. The judge took account of the fact that the applicant had been recalled on licence on IPP and took account of evidence from the psychologist that the applicant suffers from Asperger's syndrome, resulting in reduced comprehension of the consequence of the applicant's actions. The judge also took into account that the applicant is now in a stable relationship, that his life has changed after the birth of his son and that incarceration will inevitably have a negative effect on his family. The judge also took account of the impressive way in which the applicant has behaved in prison, resulting in him being given the status of an enhanced prisoner.

As for mitigation, the judge made a downward reduction of one year to three years and six months for the ATM offence, a downward reduction of one year to two years and six months for the conspiracy to steal motor vehicles and a downward reduction of six months to two years for the fraud offence. The judge gave credit for the applicant's guilty pleas. As he pleaded guilty at the beginning of the trial to the ATM offence the judge gave just over 10 per cent, amounting to five months. The applicant was also given a 10 per cent credit for plea for the second offence, even though the plea was made after close of the prosecution case at trial. This resulted in a reduction of three months.

So far as the fraud was concerned, the applicant pleaded guilty at the first opportunity and was given full credit which was a 16 month reduction.

Finally the judge made a further reduction to the lead offence of the ATM offence for totality. This was a reduction of eight months. The other offences were made concurrent. As we have said, the end result was that the total sentence was six years' imprisonment. The judge made the ATM offence the lead offence and imposed, as we have said, a sentence of six years for that offence with concurrent sentences for the other offences.

The grounds of appeal are lengthy and as the single judge observed they are somewhat unfocused. Also as the single judge again pointed out, there is a mathematical analysis of the sentence in the grounds which is both unhelpful and inaccurate. However, we have carefully considered all aspects of the grounds and they are helpfully distilled at the end of the advice and grounds into the following three grounds:

We will deal with those grounds in a different order from the order in which they are set out in the advice and grounds. First, we will deal with submission that the inferences that were drawn by the judge were unsustainable on the evidence. In particular, it is submitted that the judge should have placed the applicant in culpability category B not category A for the ATM offence on the basis that his role was not leading but only significant.

This is not arguable. In his conspicuously clear and thorough sentencing remarks the judge gave reasons which fully entitled him to come to the conclusion that the applicant had a leading role. This was a very sophisticated and carefully planned offence. The applicant is an experienced professional criminal. Two yards which he owned or part owned were used to prepare for the offence. He was directly involved in obtaining the Audi and in getting rid of it after the offence. The fact that he was sitting in the Audi at the scene whilst the other four members of the team worked on the ATM machine is not a sign that the applicant did not have a leading role. If anything it suggests that he had the senior role and was not expected to get his hands dirty. Again the fact that the applicant was not personally present when the Range Rover and the boat strap were taken does not mean he was not among the leaders in the enterprise. It is clear that he was at the heart of the planning.

There is no inconsistency in the judge deciding that both the applicant and Benn Watson had a leading role. In any event, this offence falls within category A because of the sophisticated nature of the offence and significant planning. It is true that the prosecution sentencing note did not submit that the applicant or Benn Watson had a leading role. However the judge was not bound by the prosecution's view as to the appropriate culpability category. Similarly, the judge was not obliged to accept the submission made on the applicant's behalf that he had only a minor role in the conspiracies. There was ample material before the judge to justify the conclusion that he had leading role.

The second ground is based on disparity with the sentence of five years for Benn Watson. In order to amount to a ground of appeal the disparity of sentence between the applicant and Benn Watson must be such that a right-thinking member of the public with full knowledge of the relevant facts and circumstances would consider that something had gone wrong with the administration of justice: see Fawcett [1983] 5 Cr.App.R (S) 158.

It is not arguable that there is such a disparity in the present case. The applicant was sentenced on the basis that he had a leading role in the ATM conspiracy. Benn Watson was sentenced on the same basis. The judge began with the same sentence by reference to the circumstances of the offences for Benn Watson as for the applicant, namely three years. Like the applicant Benn Watson had a large number of previous convictions. The judge applied the same increase for this aggravating feature for Benn Watson as for the applicant, namely an increase to four years and six months. This was so even though Benn Watson had not been on life licence at the time of these offences. The judge gave the same reduction of one year for broadly similar mitigating factors and the same reduction for the late guilty plea, also made at the start of the trial. The reason why Benn Watson's total sentence was lower than the applicant's is fully explicable by the fact that the two other offences of which he was convicted were different from the other of which the applicant was convicted and they merited a shorter sentence overall.

The final ground is the catch-all ground that each of the sentences was manifestly excessive. We can deal with this very shortly as we have set out the judge's reasoning in detail earlier in this judgment. It is not arguable that any of the elements of the sentences that the judge imposed was manifestly excessive. This was a series of serious and carefully-planned offences committed by a career criminal with a lengthy record of convictions for serious crimes. The similarities between the Kingston offences and the earlier Harrow robbery are striking. The judge was fully entitled to increase the sentence for the ATM offences, before a reduction for mitigation and credit for plea and adjustment for totality, from three years to four years and six months as a result of the applicant's string of previous convictions for serious offences of a broadly similar nature. The judge was similarly fully entitled to deal with the conspiracy to steal motor vehicles on the basis that it covered both vans and the Range Rover. As for the fraud offence, the judge was plainly entitled to treat it as being in culpability A. It was a sophisticated offence.

In so far as it has been suggested that the applicant should have been given a greater discount for his plea to the ATM offence than 10 percent because he was waiting for Benn Watson to plead guilty, this argument is misconceived. The applicant was a 44 year old man with extensive experience of the criminal justices system. If he had wanted to own up to the offence and to plead guilty at any stage he could have done so.

The grounds of appeal also complain of the credit given for mitigation. The judge expressly took note of all of the mitigating factors. It is not arguable that the allowance made for it was insufficient. Standing back, the applicant was a professional criminal who chose to take a leading part in criminal conspiracies and a fraud with his eyes open. He was not pressurised into doing so. His diagnosis of Asperger's syndrome is not significant mitigation. He knew that what he was doing was wrong and the fact that the applicant's family have been affected by his sentence is regrettable but he has no one to blame but himself. The judge dealt fairly and sensibly with the fact that the applicant was on licence for IPP when the offence was committed, an aggravating factor, and had been recalled so that he did not receive credit for time spent on remand. There could be no valiant complaint that the applicant's sentence was not reduced by the time spent on remand. The applicant was not entitled to any credit for time spent on remand because he had been recalled on licence. The abolition of the sentence of IPP was not retrospective.

For these reasons leave to appeal in relation to the Kingston offences is also refused.