2017/05229/A3
Neutral Citation Number: [2018] EWCA Crim 1402

IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Friday  25th  May  2018

B e f o r e:
LORD  JUSTICE  HOLROYDE

MR  JUSTICE  STUART-SMITH

and

MR  JUSTICE  DINGEMANS

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R E G I N A
 
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AIDEN  MAUND

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Mr J Elliott appeared on behalf of the Appellant

Mr B Weaver appeared on behalf of the Crown

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J U D G M E N T
Friday  25th  May  2018

LORD JUSTICE HOLROYDE:  
1.  In August 2011 this appellant stood trial in the Crown Court at Worcester on a charge of conspiracy to rob.  At an early stage of his trial he changed his plea to one of guilty.  On 16th December 2011 he was sentenced to an indeterminate sentence for public protection, with a minimum term of eight years (less the 515 days which he had spent on remand in custody).  

2. He made an application for leave to appeal against sentence, but it was refused by the single judge and was not renewed.  Now, several years later, his case comes before this court on a reference by the Criminal Cases Review Commission.

3.  The appellant was born on 20th March 1991 and is now aged 27.  He was 19 at the time of the offending and 20 when sentenced.  As a teenager, the appellant had been convicted of a number of offences involving dishonesty, public disorder, possession of an offensive weapon in a public place, battery, producing cannabis and motoring offences.  Although numerous, his convictions did not involve any for offences of serious violence.  His only experience of custody had been two sentences of detention and training orders which had been imposed in 2004 and 2005.  

4.  The offending with which we are concerned involved a marked escalation in seriousness.  The charge of conspiracy to rob related to three robberies of persons in their own homes.  The appellant was jointly charged with a number of other men: Field, aged 49 at the time of the offending; Clarke, aged 28; Jason Murray, aged 27; Kieran Murray, aged 26; and Gallagher, aged 21.  As can be seen, this appellant was the youngest of the conspirators.

5.  We can summarise the circumstances of the offending largely in the terms helpfully set out in the Criminal Cases Review Commission's Reference.  

6.  The first robbery occurred on 26th April 2010 at the home of a Mr and Mrs Dryhurst.  Mr Dryhurst is by occupation a gunmaker, legally entitled to store guns at his home address.  The couple heard a knock at the door.  When Mrs Dryhurst opened it, a man pushed his way into the property.  She was tied up and taken into the living room.  Mr Dryhurst came back into the house from the garden.  He was confronted by two men who restrained him and forced him to unlock three gun cabinets.  He, too, was then tied up and taken to the living room.  At that point it happened that Mrs Dryhurst's sister arrived.  She also was restrained and taken to the living room.  The robbers left, having stolen guns valued at over £100,000.  Mr Dryhurst managed to free himself and the others before contacting the police.

7.  Less than a fortnight later, on 8th May 2010, the second robbery occurred at the home of a Mr and Mrs Sheridan.  Mr Sheridan was a car dealer.  Again, there was a knock at the door which was answered by Mrs Sheridan.  When she opened the door, a man forced his way in.  He then struggled with both Mr and Mrs Sheridan.  The man demanded money and "the keys".  Another man then entered the property and proceeded to search it.  Mr Sheridan handed over the cash which he had on him (about £400).  He and his wife were then tied up with cable ties.  The robbers left with the cash.

8.  A week later, on 15th May 2010, at about 10pm, a number of men entered a farm.  Two of them carried knives.  The occupiers, Mr Jennings and Miss Jones, were in the house.  Mr Jennings, who was asleep on the sofa, woke to find hands around his throat.  His wrists were bound with duct tape.  Miss Jones was similarly bound with duct tape.  They were both punched in the face.  They were threatened with being stabbed.  Mr Jennings was subjected to a number of blows to the head.  The robbers left with a total of three vehicles, about £1500 in cash, various items of jewellery, including a necklace which was torn from one of the victims, a Rolex watch, and several pieces of Spode pottery.

9.  Even that brief summary makes it clear that these were carefully planned, serious robberies.  They involved, where necessary to subdue their victims, the use or threat of violence by the robbers.  

10.  This appellant and some of his co-accused pleaded guilty in the early stages of the trial.  The appellant's account of his offending was recorded in a pre-sentence report which was before the court.  He said that his role had been to knock on the doors of the houses concerned and that others had forced their way in as soon as the householder opened the door.  He admitted, however, that in relation to the second robbery he had played a rather greater role.  He said that on that occasion the lady who opened the door became suspicious and tried to close it.  He forced the door open and physically restrained her whilst others entered the property and restrained her husband.  The appellant told the author of the report that his motivation was that at the time he was a heavy user of cannabis and that he was tempted by the prospect of obtaining enough money to buy the equipment with which to grown his own supply of cannabis.  

11.  In the pre-sentence report, under the heading of "Assessment of the Risk of Serious Harm", the appellant was assessed as being:

"… a medium likelihood of committing serious harm to the general public.  These risks involve violence associated with the nature of these offences but are not deemed imminent or likely to occur on release.   [The appellant], if believed, took no part in the planning of these offences, nor did he personally injure or threaten any of the victims.  But the fact that he appears to be easily led by his peers and was happy to take part demonstrates that he is capable of at least facilitating violence, if not wanting actually to commit it himself, which is worrying.  [The appellant] will need to complete programmes to improve his consequential thinking skills, victim empathy and drug use to help lower his risks and improve his own outlook for life."

The author ended the pre-sentence report by indicating that the appellant was resigned to receiving a lengthy custodial sentence.  He reported that the appellant had behaved well whilst on remand in custody, had completed a drugs programme, appeared to be genuinely remorseful for what he had done and was prepared to do whatever was necessary to ensure that he turned his life around.  

12.  We have referred to the charge of conspiracy to rob.  It should be noted that one of the conspirators (Field) had earlier been involved in a conspiracy to burgle the home of Mr and Mrs Dryhurst.  That had been a well-planned and sophisticated crime.  Field and others had masqueraded as police and customs officers, entitled to search the home of Mr Dryhurst.  Thus it was that Field had equipped himself with knowledge of the stock of firearms which Mr Dryhurst kept at his home address. 

13.  In his sentencing remarks delivered on 16th December 2011, the learned judge justifiably described these robberies as "pre-planned".  He said that Field, who knew about the guns, had formed a criminal gang for the specific purpose of entering houses by force, subduing the occupants and stealing guns, money and other high value goods.  He noted that the conspirators had prepared by equipping themselves with face masks and plastic ties.  He observed that it was plain that the robbers were prepared to use violence if necessary and had both used and threatened violence.  He summarised the offending as "professional criminality of the utmost seriousness", which plainly had to be met by appropriately long sentences of imprisonment.  The judge indicated that it was his duty to consider whether he should pass indefinite sentences on the offenders on the basis that each presented a significant risk to the public of serious harm from future offending.  In that regard he said:

"The three robberies that comprise the conspiracy count were quite simply terrifying for the victims.  In what they believed to be the security of their home they were physically assaulted and restrained and separately tied up.  In the last instance, threats of knives and actual violence were used, and the occupants, as they state in their … victim impact statements, feared that the women would be raped, they feared that they would be killed, some of them, and the 999 recordings that were played to the court and the jury were eloquent testimony to the terror that your actions induced in your victims.  I have no doubt that all of them have suffered serious psychological harm as a result …"

The judge then referred to the fact that all of the victims had subsequently moved home because they could no longer stay in the properties where they had been robbed.  He continued:

"In summary, their lives are permanently and adversely affected and I have decided that in each of your cases, because of the circumstances of the robberies forming this conspiracy, apart from what I have seen in particular cases as regards previous convictions and other matters, that each of you present such a significant risk to the public of serious harm from further offending that sentences of imprisonment for public protection are appropriate and I intend to pass them on the basis that you present that danger."

The learned judge then went on to sentence each of the offenders in turn.  In each case he passed a sentence of imprisonment for public protection and specified the minimum term to be served, subject to the appropriate deduction for the periods of time which each had spent remanded in custody.

14.  In relation to this appellant, the judge said:

"Mr Maund, like Clarke, the evidence established that you were involved in all three robberies in the conspiracy.

You are now 20 years of age with convictions going back to 2004, including theft, burglary, handling and public order offences. 

You pleaded guilty just after the start of the trial and therefore you are entitled and will receive an appropriate reduction in sentence.

In addition, in your case I am rightly reminded that, now 20, you would have been 18 at the time of these offences, considerably younger than the other defendants.  Nevertheless, the circumstances of the offence, and indeed it has to be noted with the convictions that you have but mostly because of the offence to which you pleaded guilty, again I am satisfied you present a danger of serious offending and serious harm and therefore it must be a sentence of imprisonment for public protection."

15.  In the appellant's case, the judge, as we have indicated, set a minimum term of eight years.   In Field's case, the minimum term was ten years four months; in Clarke's case, eight years six months; in Kieran Murray's case, nine years; in Gallagher's case, eight years; and in the case of Jason Murray, who was sentenced a few days later, nine years.

16.  Although the error was not noticed at the time, it is now common ground that the learned judge did fall into error in purporting to sentence the appellant to imprisonment for public protection.  He was, as we have said, aged 20 when convicted.  Accordingly, the appropriate form of sentence to reflect the judge's intention should have been one of detention in a young offender institution for public protection.  The sentence was, on that ground, unlawful, and would therefore   have to be corrected by this court if the indeterminate sentence is to stand.

17.  The principal issue in the appeal, however, is the challenge to the imposition of that indeterminate sentence, made by Mr Elliott on behalf of the appellant and resisted by Mr Weaver on behalf of the respondent.  In particular, because other statutory criteria would be satisfied, the focus of the appeal is on the requirement in the then statutory provisions of section 225(1)(b) of the Criminal Justice Act 2003 that the court must be "of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences".  

18.  Before coming to the grounds on which the challenge is advanced by Mr Elliott, we must note that a similar challenge has already been brought by three of the appellant's co-accused.  First, in December 2012, Jason Murray successfully appealed against his sentence.  The court, presided over by Moore-Bick LJ, expressed concern that, when sentencing, the judge "may well have considered the defendants as a group, assessing their dangerousness by reference to the nature of the robberies, rather than considering them individually in the light of their different roles".   The court emphasised at [26] that:

"The imposition of an indeterminate sentence is a very grave step.  It always requires a subjective consideration of prospective risk and a detailed explanation of the reasons for imposing it.  The judge should begin by considering whether the offender poses a significant risk of causing serious harm to members of the public by committing further specified offences.  If he does, the judge should then consider whether an extended sentence, rather than an indeterminate sentence, is sufficient to manage that risk and should explain his reasons for his conclusion by reference to the specific circumstances of the case …"

With specific reference to Jason Murray's case, the court noted that his offending was not of the most violent kind, although undoubtedly very serious, and that he did not have a significant history of violence.  Moreover, the judge had not explained in any detail why he found Jason Murray dangerous.  The court quashed the sentence of imprisonment for public protection in Jason Murray's case and substituted a determinate sentence of seventeen years' imprisonment.

19.  In July 2015, Kieran Murray also successfully appealed against his sentence.  This court, presided over by Macur LJ, referred to the judgment in Jason Murray's case, which we have just cited.  In his case also this court concluded that the indeterminate sentence must be quashed and substituted a determinate term of eighteen years' imprisonment.

20.  In June 2017, an appeal by Gallagher succeed.  This court, presided over by McCombe LJ, again referred to the earlier appeals of Jason Murray and Kieran Murray and noted the reference made by Moore-Bick LJ in Jason Murray's case to the "possibly global approach" taken by the judge in sentencing all the conspirators.  The court further noted at [25] that the sentencing judge had given no consideration in his remarks either to an extended sentence or to the public protection features of a lengthy determinate sentence, and had not said why either of those two alternatives would not have met the requirements of the case.  In Gallagher's case, the court concluded that the indeterminate sentence must be quashed and substituted a sentence of sixteen years' imprisonment.  

21.  In the case of this appellant, Mr Elliott accepts the seriousness of the offending.  He does not seek to argue against the length of the custodial term on which the sentence was based.  He submits, however, that the indeterminate sentence, quite apart from being unlawful in the terms in which it was pronounced, was excessive in the circumstances of this appellant's case.  He points out that the appellant was the youngest of the offenders and that there was nothing to suggest that he played a major role, when compared with the other conspirators.  Although he has numerous previous convictions, none came close to matching the seriousness of this offence, and his longest previous sentences have been of the order of six months.  

22.  Mr Elliott submits that there are a number of respects in which distinctions favourable to this appellant may be drawn between him and his co-accused: for example, two of the others (Kieran Murray and Gallagher) did not plead guilty and were convicted at the conclusion of the trial; this appellant was not the organiser of the conspiracy, as Field was; unlike Kieran and Jason Murray, he had not been recruited as an enforcer; and unlike Clarke and Gallagher, he did not have any previous conviction for an offence of robbery.  Moreover, submits Mr Elliott, the appellant had been frank in his account to the probation officer who prepared the pre-sentence report.

23.  Mr Elliott, of course, relies on the successful appeals by co-accused.  He submits that, in the light of those earlier decisions of this court, there is no basis on which to maintain a finding of dangerousness in the case of this appellant, particularly having regard to his relative youth, his lack of relevant previous offending, the fact that he did not play a violent role in the commission of the robberies, the fact that he did not play an organisational role, and his belated candour in his dealings with the probation officer.  

24.  For the respondent, Mr Weaver realistically acknowledges the terms of the judgments of this court in the three earlier appeals, but submits that consideration of the case of the appellant with whom we are concerned should lead the court to conclude that an indeterminate sentence was not here either wrong in principle or manifestly excessive.  The mere fact that other co-accused had been successful in their appeals does not of itself mean that this appellant must succeed and Mr Weaver submits that in his case the criterion of dangerousness was met.  Mr Weaver attaches particular weight to the fact that the appellant was found to have been involved in all three of the robberies.  Whilst it was not possible to attribute any specific violent actions to him, Mr Weaver suggests that it is important to note that he had continued to be involved when he must surely have known of the nature of the robberies being committed.  For those reasons, submits Mr Weaver, detention for public protection was justified; if it was not, the learned judge would have been entitled to pass an extended sentence of detention under the then provisions of section 227 of the 2003 Act.  

25.  We have reflected on these submissions and on the application for a long extension of time which necessarily precedes the appeal.  

26.  We are satisfied that, in the interests of justice, the long extension of time must be granted. The appeal against sentence is brought against the background of three other appeals by co-accused stretching over a five-year period.  The appellant had submitted grounds of appeal promptly following his sentence.  At that stage, he had accepted the adverse decision of the single judge and had not renewed the application.  But we agree with Mr Elliott's submission that it would be unjust on that ground to refuse the appellant the opportunity for his appeal to be heard now on this Reference.

27.  We turn to the merits of the appeal.  We note that, for this purpose, the focus is on the statutory definition of "dangerousness".  There are, as we see it, two issues which the learned sentencing judge had to consider and which we must consider: first, was the appellant properly to be regarded as a dangerous offender; secondly, if he was, was an indeterminate sentence of detention for public protection necessary and appropriate in the circumstances of the case?

28.  As to whether the appellant could properly be regarded as a dangerous offender, we respectfully adopt and endorse the words which we have quoted from Moore-Bick LJ in Jason Murray's case as to the solemnity of the court's determination that an indefinite sentence should be imposed. We accept, of course, Mr Weaver's point that a successful appeal by a co-accused does not of itself necessarily mandate success for another appeal.  But in the circumstances of this case, the criticisms which previous constitutions of this court have made as to the approach to sentencing by the learned judge below apply with equal force to this appellant's case.  Earlier in this judgment we quoted in full the only relevant passages in the learned judge's sentencing remarks.  They contain the totality of his reasons for finding both that the appellant was a dangerous offender, as defined, and that an indeterminate sentence was necessary.

29.  It is undoubtedly a matter of concern that, in order to make money for the unattractive and criminal purpose of providing himself with cannabis, this appellant was ready and willing to involve himself and to continue to involve himself in such serious offending.  The manner in which these robberies were carried out made it inevitable that victims would suffer extreme fear and there was an obvious risk of lasting psychological injury to one or more of them.  However, as the earlier appeals to which we have referred have shown, it is not sufficient to look simply at the overall circumstances of the offending and the behaviour of the offenders collectively and to conclude, without more, that each individual offender is dangerous and must be subject to an indeterminate sentence.  

30.  With all respect to the learned judge below, we are entirely satisfied that he fell into error in two distinct ways.  First, before finding this young appellant to be dangerous, the judge should have focused more closely than he did on the individual features of the appellant's case.  He should have had regard to the appellant's young age and to his limited – and it would seem subordinate – role in the commission of the offences.  He should have reflected on the fact that the appellant, despite his unattractive record, had no previous conviction involving significant violence and would now be serving, on any view, a very long custodial sentence for the first time.  Furthermore, whilst the learned judge was, of course, not bound to follow any views expressed in the pre-sentence report – and indeed was obliged to form his own assessment – he should have taken into account that the pre-sentence report provided no explicit support for a finding of dangerousness and made no reference to any possibility of an indeterminate sentence.  

31.  It seems to us, with respect to the judge, that he made no such analysis.  He gave no explanation as to why, notwithstanding features which may fairly be thought to be in the appellant's favour on this issue, he found the appellant to be dangerous.  It seems to us, as it has seemed to previous constitutions, that the judge adopted, incorrectly, a global approach.  We recognise that it is at least possible that on a more detailed analysis there may have been scope for a finding of dangerousness.  But on the material which we have seen, and in the light of the terms in which the sentencing judge expressed himself, we conclude that the finding of dangerousness cannot be justified in the circumstances of this appellant's case.  

32.  Even if the appellant could properly have been found to be a dangerous offender, it did not follow that a sentence of detention for public protection must be imposed.  Other sentencing options open to the court were either the imposition of an extended sentence under the then-current statutory provisions or a determinate sentence.

33.  In circumstances where, on any view, a young offender is to be sentenced to a long custodial term, the court must consider carefully whether that long period of custody will of itself serve sufficiently to protect the public against the risk of future commission of specified offences and future causing of serious harm.  It seems to us that no such consideration was given in this appellant's case.  The sentence in his case was shorter than those upon his co-accused but was of the same nature as others.  

34.  Earlier in this judgment we have quoted the passage in the sentencing remarks in which the judge said that he was required to consider "whether I should pass indefinite sentences on the basis that each of you present a significant risk".  That suggests to our mind that the judge adopted an approach that, once a finding of dangerousness was made, a sentence of indeterminate detention for public protection would necessarily follow.  That, with respect, was not a correct approach.

35.  Had the judge reflected on the specific features of this appellant's individual case, he may well have reached the conclusion which we have reached, namely, that a determinate sentence of the length to be imposed would in itself sufficiently protect the public against a young offender who was reported to be remorseful and keen to change for the better.

36.  For those reasons, we conclude that the sentence of imprisonment for public protection, in addition to being wrongly expressed, was wrong in principle.  We therefore grant the necessary extension of time.  We allow the appeal to this extent.  We quash the sentence for public protection imposed below.  We substitute for it a term of detention in a young offender institution for sixteen years.

37.  By way of explanation, the sentence takes that form because of the age of the appellant as at the date of his conviction.  It will in practice, having regard to his age now, take effect as a sentence of imprisonment for sixteen years.  The appellant will receive credit for the period of time which he spent remanded in custody.

38.  The appeal therefore succeeds to that extent.