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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Hamilton & Anor, R v [2008] EWCA Crim 542 (22 February 2008) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/542.html Cite as: [2008] EWCA Crim 542, [2008] 2 Cr App R (S) 85, [2008] 2 Cr App Rep (S) 85

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		22 February 2008

LORD JUSTICE DYSON:

1. On 3 September 2007, at the Birmingham Crown Court, the two appellants pleaded guilty to five counts of kidnapping (counts 1, 3, 5, 7 and 9) and five counts of robbery (counts 2, 4, 6, 8 and 10). On 2 October 2007 Nathan Hamilton asked to have a further seven offences taken into consideration (four offences of robbery, two of theft and one of criminal damage). The robberies and thefts involved taking handbags from female complainants. He was sentenced to ten years' imprisonment concurrent on each count. On 13 November 2007 Jobari Blake asked to have a further offence (robbery involving a handbag snatched from a female complainant) taken into consideration. He was sentenced to ten years' imprisonment concurrent on each count, too. Each appellant was therefore sentenced to a total of ten years' imprisonment.
2. A co-accused, Jason O'Connor, pleaded guilty to counts 1-10 and was sentenced to ten years' imprisonment concurrent on each count. His application for leave to appeal against sentence was refused by the single judge and has now lapsed.
3. The two appellants appeal against sentence by leave of the single judge.
4. The facts are these. Between May and June 2007 the appellants and O'Connor carried out a series of robberies targeting lone women returning to their cars. O'Connor dragged them into the back and forced them to reveal PINs and hand over property. Hamilton used their cards and PINs to withdraw money. Blake was the driver. The incidents lasted between half an hour and an hour.
5. As regards counts 1 and 2, at 8pm on 3 May 2007 the complainant, Jennifer Shervington, got into her car in Handsworth. She was alone. A man got into the back seat. He put his arm around her throat and dragged her into the back. He forced her face-down onto the floor. Two other men got into the front and drove off. The man in the back demanded money. He told the others to drive to a cash point. They found the complainant's details on personal documents and told her to give them her PIN because they knew where she lived. The car stopped. One of them got out. He used her car and PIN to withdraw £100. He said that they would take her car and she could claim the insurance. They kept asking about her home, whether she had a plasma television or a computer. The man in the back tried to pull off her ring. It hurt, so she took off the ring herself and gave it to him. The car stopped and the men got out. They had taken the complainant's mobile telephone, diamond ring, camera, handbag, bank cards, £120 in cash from her purse and a pair of glasses.
6. The facts relating to counts 3 and 4 were these. At 12.45pm on 8 May 2007 the complainant, Rubina Tahir Butt, was sitting in her car in a Handsworth car park when men got into the front and back passenger seats. The man in the back grabbed her by the throat and dragged her into the back. They drove off. The man in the back took her purse and mobile telephone. She was told to give them her PIN. One of the men got out. He returned and said that he had been unable to obtain any money. The men threatened her and accused her of providing a false PIN. She struggled and tried to reach the door. The man in the back sat on her stomach. The car stopped. One of the men got out. This time he was able to obtain money. The man in the backed ripped off her necklace. He demanded her ring and earrings. The men said they were going to leave. One of the men sprayed the interior of the car with perfume from her handbag and wiped it down, saying that he did not want to leave any fingerprints. The complainant was told to cover her face. The men then left. She drove to the city centre and alerted the police. The men had taken her mobile telephone, necklace, wedding ring and earrings to a total value of £490, and £300 had been withdrawn from her bank account.
7. The facts relating to counts 5 and 6 were that at 7.20pm on 24 May 2007 the complainant, Sally Mynett, got into her car in a Wolverhampton supermarket car park. Some men got into the car. A hand was placed over her mouth. She struggled and bit the hand. She was punched in the face. She was dragged into the back of the car and forced down into the rear footwells. One of the men snapped off the rear-view mirror and threatened her with it. They drove off. They demanded her bag, bank cards and PINs. She was questioned about her job and lifestyle. One of the men got out but used the wrong card. He got out again. This time he returned to say that he had obtained £200. One of the men took her mobile telephone and made a few calls. The car stopped in West Bromwich. The men got out. They asked if she had any jewellery, but left without taking her bracelet and necklace. She saw them leave in a Jeep and she wrote down the registration number. £400 had been taken from her bank accounts, £100 in cash and her mobile telephone Bluetooth device had also been taken. She sustained a bruised and swollen nose, a mark on her cheek, a cut lip, a scratch to her neck and pain in her shoulders and chest.
8. The facts relating to counts 7 and 8 were that on the afternoon of 31 May 2007 the complainant, Lynne George, got into her car at a shopping centre in Perry Barr. A man got into the back and grabbed her hair. She struggled. Two other men got into the car. She was dragged into the back. She sustained a cut to her nose and a bump to her head in the struggle. The car drove off. She said that her husband had cancer but the men nevertheless persisted. They ordered her to write down her PIN. The car stopped. She tried to open the door. The man in the back grabbed a bottle of camping gas and said, "Don't make me hurt you .... like the last woman". One of the men got out. He returned, having withdrawn £300. The men asked her about other property she had and other ways to access her money. They observed that she lived in an expensive area and asked about her home and family. They demanded her jewellery. She gave them her wedding ring, engagement ring, a third ring and a watch that she had received as a 40th birthday present, with a total value of around £2,300. They asked for more. She wrote them five cheques for £100. They stopped in Bromford. They got out having taken her jewellery, wallet, bank cards, chequebook, £100 in cash, her mobile telephone (worth £200) and some men's clothing. She sustained a sore neck and bruising to her head.
9. The facts relating to counts 9 and 10 were that at 4.15pm on 11 June 2007 the complainant, Maria Clifton, got into her car at a supermarket in Great Barr. Men got into the front and back. She was dragged into the back and pushed into the rear footwell. Legs pinned her to the floor. They drove off. She was made to hand over her wedding ring. She hid her engagement ring. They took her bank cards and made her write down her PINs. The car stopped. One of the men got out and withdrew money from her accounts. The car stopped again. The men got out and told her to count to 100. They had taken her purse, wedding ring and two mobile telephones. A total of £800 had been withdrawn from three bank accounts. She sustained sore elbows, stiffness to her neck, back and shoulders.
10. Jewellery stolen in the robberies was subsequently recovered from jewellery shops. O'Connor was traced from one of the jewellery shops. Bank cards and other stolen items were recovered from a search of his house.
11. Hamilton and Blake were traced through CCTV footage. Some stolen items were also recovered from Blake's house.
12. Hamilton is aged 24. He has appeared before the courts on eight previous occasions for 18 offences between 2000 and 2004. In 2000 he received a conditional discharge and a probation order for conspiracy to burgle (non-dwelling) and attempted burglary (non-dwelling) offences. In 2003 he was sentenced to 80 days' detention for burglary (non-dwelling). The rest of his previous convictions were largely for vehicle-related offending and were dealt with by way of a range of non-custodial disposals.
13. Blake is aged 28. He has appeared before the courts on nine previous occasions for 20 offences between 2000 and 2007. His previous appearances were largely for vehicle related offending and had been dealt with by way of a range of non-custodial and short custodial penalties. In 2005 he was fined for common assault and sentenced to one month's imprisonment for two offences of obstructing a constable.
14. There were pre-sentence reports before the sentencing judge. Hamilton's report said that he accepted full responsibility and recognised the impact of his offending. He said that he committed the offences due to threats from O'Connor. He is a man of below average intelligence and is easily influenced by others. His previous offending behaviour, personal circumstances and attitude towards offending indicated a medium risk of re-offending. Dissociating from his co-accused O'Connor, forming relationships with law-abiding persons and completing offence focused work in prison would reduce the risk of re-offending.
15. Blake's pre-sentence report said that he committed the offences to help O'Connor obtain money for drugs. He accepted his responsibility but minimised his role. He expressed remorse for his current predicament, but displayed a callous disregard for the victims of the offences. He posed a medium risk of re-offending, but a high risk of similar re-offending. His attitude, lack of empathy and the increasingly serious nature of his behaviour indicated a high risk of harm to the public.
16. A psychiatric report on Hamilton said that he was not very bright and suffered with dyslexia. His below average intelligence made him suggestible and easily influenced.
17. In passing sentence the judge said that these were carefully planned offences by an organised team targeting lone women. O'Connor had got into the back of the car with the women and subdued them, using violence if necessary. Hamilton had gone to the ATMs with the cards and PINs. Blake had been the driver, but must have known that such violence as was necessary would be used. The judge concluded that Blake was just as much a part of the joint enterprise as the other two. There was no distinction between his role and the roles played by the others. In relation to Hamilton, the judge said that he would receive appropriate credit for pleading guilty at the earliest opportunity. He acknowledged that Hamilton was a follower, not a leader, and that his record was not as bad as O'Connor's, but that was counterbalanced by the seven offences that he had asked to be taken into consideration. These were carefully planned offences by an organised team, carried out with professionalism and determination. Lone and vulnerable women were targeted, forced into their cars and intimidated into handing over PINs and personal items. Although the injuries inflicted were not of the most serious kind, the emotional and psychological distress was incalculable.
18. Hamilton's grounds of appeal concentrate on the fact that his role was subordinate to that of the ringleader, O'Connor. Counsel submits that the judge failed to attach sufficient weight to the psychiatric and pre-sentence reports and that he was wrong to consider that Hamilton's lesser role was counterbalanced by the need to take into account the other offences that he asked to be taken into consideration. It is submitted that the judge should have passed a sentence which more obviously recognised the leading role taken by O'Connor, as compared with that of Hamilton. Reliance is also placed on the fact that Hamilton pleaded guilty at the first opportunity, co-operated with the police at all times and expressed remorse in his interviews.
19. It is submitted that Blake's role was less significant than that of O'Connor, who was the ringleader. Reliance is placed on the fact that Blake pleaded guilty at the first opportunity, that he has no previous convictions for offences of a similar nature, that he was willing to give evidence for the prosecution, that the overall offending occupied a small time-span, and that the violence used was brief and not persisted in.
20. Reference has been made to the Sentencing Guidelines Council's guidance. It is suggested that this offending does not readily fit any of the three categories identified on page 11.
21. We agree that little assistance is to be derived from the Sentencing Guidelines Council's guideline in this case. The categories identified on page 11 are all for single offences. The aggravating feature of this offending is that it comprised a series of offences of a similar nature, all targeting lone, vulnerable women and subjecting them to an experience which must have been extremely frightening for them.
22. Having said that, and recognising the real gravity of this offending, we have been persuaded that the sentences passed on the two appellants was somewhat too high. It seems to us that the judge must have taken a starting point of about fifteen years for this offending on the basis of a plea of not guilty. In our judgment, taking account of the appellants' roles in this offending, that was too long. It seems to us that the judge was entitled to pass a sentence of ten years' imprisonment in the case of O'Connor, taking account of his plea of guilty. He was the ringleader; he was the man who sat in the back of the cars and treated the victims in the way that we have described. The roles of the two appellants were undoubtedly important roles, but they were less important than that O'Connor. We take account in Hamilton's case of his low intelligence and his suggestibility.
23. In all the circumstances we have come to the conclusion that the right sentence to pass in their cases would have been one of eight years' imprisonment concurrent on each of these counts. Accordingly, we quash the sentences of ten years' imprisonment and substitute ones of eight years' imprisonment. To that extent these appeals are allowed.