R v Steven Rich (aka Whitelaw)

MR JUSTICE SHELDON: Steven Rich, also known as Whitelaw, appeals from a decision of His Honour Judge Coates sitting at the Crown Court at Warwick on 20 May 2010, sentencing him to imprisonment for public protection under section 225 of the Criminal Justice Act 2003 ("the 2003 Act") for 15 years, with a minimum term set at seven-and-a-half years.

The appeal was lodged very considerably out of time on 3 March 2025. Mr Rich seeks leave for an extension of time and leave to appeal.

The grounds of appeal are that the sentence of imprisonment for public protection was wrong in principle and manifestly excessive because (a) the learned judge failed to consider any alternative to imprisonment for public protection once Mr Rich was found to meet the test of dangerousness (a finding which is not challenged on appeal); and (b) an extended sentence with a custodial element of up to 15 years and an extended licence period of up to five years would have been sufficient to protect the public from the risk of serious harm.

The details of the offending by Mr Rich which led to the sentence that is under appeal can be discerned from the learned judge's sentencing remarks. There were two indictments and Mr Rich pleaded guilty to all of the counts on those indictments. This included three offences of robbery and the theft of two cars. Mr Rich also asked for four other offences to be taken into consideration: the theft of two further cars and two robberies of motor vehicles which were taken from their drivers. The value of the property that formed the subject of the offences was calculated as £150,000.

The first offence chronologically was an armed robbery at the DHL warehouse on 11 October 2009. At around 10.30 pm Mr Rich and three others broke into the area of the warehouse. Mr Rich and two others were wearing Balaclavas and were in possession of an imitation gun. The six staff on duty were forced to the floor and threatened that they would be shot if they tried anything. Their hands were tied and they were put in a cage which was then padlocked and guarded whilst property to the value of £93,000 was taken. Mr Rich accepted that he was responsible for tying up the staff and locking them in the cage.

Mr Rich subsequently carried out the other offences. One of these took place on 1 February 2010, and involved Mr Rich pulling a driver from his car and when the driver put up some resistance Mr Rich wrestled him to the ground.

On 9 February 2010 Mr Rich and another person went to a Spar store wearing Balaclavas. Mr Rich had a gun and pointed it to the headline or neckline of staff and demanded the keys to the safe. The keys were not available, and a handbag and cash were stolen instead.

The last offence, on 25 February 2010, concerned Mr Rich and another person carrying out an armed robbery of a branch of Lloyds TSB bank. They both had a gun and told the four staff and the customer who were inside the bank to lie down. They stole money from a till.

A pre-sentence report was prepared dealing with the offence committed on 9 February 2010 (the armed robbery of the Spar). This set out Mr Rich's background, including the fact that he was a user of drugs. In conclusion, it was stated that Mr Rich "has no previous convictions for violence and therefore these new offences are an escalation in severity of the defendant's offending behaviour and it is concerning that this escalation has been so dramatic. Furthermore these offences demonstrate that when Mr Rich is using drugs and needs to fund this use he is capable of resorting to aggressive and violent means to do so."

In his sentencing remarks, His Honour Judge Coates explained that Mr Rich, who was 23 years old at the time, had previously committed 60 offences. Most of his previous offending had been for offences of dishonesty. None of his convictions had been for violence or robbery. In 2006, he was sentenced to imprisonment for 42 months for offences of burglary. In 2007, he received a three year sentence for burglary.

The learned judge decided that Mr Rich was a dangerous offender being satisfied that he posed a significant risk of causing serious harm to others by offending in the future. Mr Rich's offending was serious. The major offences were committed with others. He was armed, he wore balaclavas and he caused psychological suffering to his victims. There was considerable escalation in his criminal activity and a complete disregard for the safety of others. Although no material physical injury was suffered, the learned judge said this was because with one exception his victims did not put up resistance. The one who did was wrestled to the ground to ensure the successful completion of the robbery. The learned judge observed that:

His Honour Judge Coates referred to the guilty pleas and to Mr Rich's confession to other serious crimes and said that he had regard to the principle of totality. The learned judge regarded the robbery at the DHL premises as the most serious offence. For that offence he imposed a sentence of eight years' imprisonment, taking into account the theft of two motorcars and two robberies. A consecutive sentence of two years was imposed for the possession of the imitation firearm. With respect to the other offences, the robberies at Lloyds TSB and the Spar attracted sentences of two-and-a-half years consecutive to one another and consecutive to the robbery at DHL. The learned judge arrived at a sentence of 15 years' imprisonment for public protection. Mr Rich was told that he would serve half of that period (seven years and six months) less the 6 days that he had spent on remand. Mr Rich was told that he could apply to the Parole Board for release when he had served seven years and 115 days.

On 3 March 2025 Mr Rich sought leave to appeal. An extension of time is being sought. It was explained that Mr Rich expected to serve the minimum term and it was only when he was not released that he became concerned about his ongoing detention. Further, it was only when he read an article about the sentence of imprisonment for public protection that he realised that an out of time appeal could be lodged. Mr Rich approached new legal representatives in June 2023. Legal aid eligibility checks were completed in October 2023 and counsel was instructed in February 2024. Advice and grounds of appeal were provided in February 2025.

Miss Rebecca Martin appears on behalf of Mr Rich, having drafted the advice on appeal against sentence. We are grateful for her submissions. She submits that although Mr Rich was assessed as posing a significant risk of serious harm by the commission of further offences, a sentence of imprisonment for public protection was not inevitable. At the relevant time, section 225(3) of the 2003 Act provided that the imposition of such a sentence was discretionary. It was open to the learned judge to sentence Mr Rich to an extended sentence or a determinate sentence, as well as a sentence of imprisonment for public protection. No challenge is made by Miss Martin to the custodial sentence of 15 years.

Miss Martin submits that the sentence of imprisonment for public protection was wrong in principle and manifestly excessive because His Honour Judge Coates did not consider the alternatives to a sentence of imprisonment for public protection, and did not say why an alternative sentence such as an extended sentence would not protect the public.

Miss Martin submits that there was no indication that the learned judge had in mind the principles set out by Lord Judge, then the Lord Chief Justice, in Attorney General's Reference No 55 of 2008, [2009] 2 Cr.App.R (S) 22 at [14] and [20]:

In her submissions Miss Martin also refers to the recent case of Pilling [2024] EWCA Crim 1279, and notes the similarities between that case and the matter before us today, including Mr Rich's age and lack of maturity at the time of his sentencing. Miss Martin also refers in her submissions to the lack of violent offending before the offences for which Mr Rich was sentenced by the judge.

The respondent in this matter is represented by Mr Dennis Barry and we are also grateful for his submissions. In his written material he set out the background facts and the circumstances of what took place after Mr Rich had been sentenced. Mr Barry points out that the fact that His Honour Judge Coates did not explicitly rule out the option of an extended sentence does not necessarily mean that his decision to impose a sentence of imprisonment for public protection was flawed. Mr Barry points out that there are cases in which the facts of the offending alone can provide a sufficient basis for a finding that the protection of the public requires the imposition of a sentence for public protection.

These were serious offences. There was an escalation from the earlier dishonesty offences. Focusing on the level of risk that was posed by Mr Rich at the time, he was dangerous and he had a significant history of offending. Mr Barry asked the court to consider two questions. First, was the sentence imposed by the learned judge wrong in principle on the basis of the materials before the judge at the time? Secondly, applying the Attorney General's Reference, would an extended sentence have provided sufficient protection for the public based on the risk as perceived by the judge?

We grant an extension of time for leave to appeal. The appeal was lodged almost 15 years after the sentence was imposed. Nevertheless there was no indication that Mr Rich was advised that he had real prospects of appealing when he was originally sentenced. Once Mr Rich learned about the possibility of seeking leave to appeal out of time to challenge a sentence of imprisonment for public protection, he sought out legal advice and the further delays in getting that advice and then lodging the appeal were not down to him. In those circumstances, we consider that it is in the interests of justice to allow him to pursue his appeal.

Looking at the substance of the appeal, there is no indication from the papers that have been made available to the court that His Honour Judge Coates considered any alternative to the imposition of a sentence of imprisonment for public protection having found that Mr Rich was dangerous, a finding which is not challenged and which we consider was properly made. In our judgment, that was an error. The structure of the statutory scheme at the relevant time was such that the sentence of imprisonment for public protection was discretionary and, as explained by the Lord Chief Justice in Attorney General's Reference No 55 of 2008, a sentence of last but one resort. It does not appear to us that these principles were taken into account by the learned judge or applied to the facts of the case. There was no reasoning supplied by the learned judge as to why any alternatives to a sentence of imprisonment for public protection would not meet the risk posed by Mr Rich.

In our judgment, had the learned judge taken into account the principles set out in Attorney General's Reference No 55 of 2008 he would have concluded that an extended sentence would have met the risk posed by Mr Rich. At the time when sentencing took place Mr Rich was relatively young (he was 23 years old), he had no previous convictions for violence, he pleaded guilty and asked for other offences to be taken into consideration, and it could be expected that during his time in prison Mr Rich would have the opportunity to take part in courses to address his offending behaviour, his use of drugs and his use of violence to achieve his ends.

In the circumstances, the sentence imposed was outside the range of sentences which the judge, applying his mind to all relevant factors, could reasonably have considered appropriate. We consider that an extended sentence should have been imposed.

We will therefore quash the sentence of imprisonment for public protection and restructure the sentence as follows. We will take the robbery at the DHL warehouse on 11 October 2009 (which we take to be count A on indictment 2) as the lead offence and the sentence that we will impose for that offence, aggregated by all the other sentences, will lead to a custodial term of 15 years. The sentences for the other offences will be concurrent. We will also impose an extended sentence with an extended licence period of five years. Ultimately, therefore, we will substitute the sentence imposed by the learned judge with a 20-year extended sentence.