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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 >> Chirnside, R. v [2005] EWCA Crim 1346 (17 May 2005) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2005/1346.html Cite as: [2005] EWCA Crim 1346

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2 Tuesday, 17 May 2005

1. MR JUSTICE HUGHES: This appellant appeals against a sentence of 6 years for an offence of robbery, imposed on 3rd November 2004 in the Crown Court at Newcastle upon Tyne. The appellant had pleaded guilty. Further, his case was that he had been forced by threats to carry out the robbery by a man to whom he had fallen into debt as a result of obligations incurred in the course of his drug addiction. Mr Mark's shortly made submission is that a sentence of 6 years did not sufficiently take account of those two factors.
2. The robbery was very serious. It was targeted upon a security guard cash delivery to a cash point. It was the kind of delivery made by two guards with planned precautions, including carrying the money in sealed boxes armed with dye designed to explode and make the money traceable and unusable unless the box is opened in accordance with correct codes and procedure. Unavoidably, the most vulnerable point in a delivery of that kind is when the box is carried from van to premises. At that point this appellant advanced on the guards. He was carrying a large machete. He demanded the box. He reinforced his demand by a threat with the weapon. He successfully seized the box and ran to a waiting car.
3. Descriptions, the registration number of the car and, it may be, a certain amount of detective work led to the early arrest of the appellant the following day. The box had contained £20,000. None of it was recovered and it seems possible that someone knew how to open it safely. The appellant was found in possession of some £2,000 in cash and in due course admitted that that was part of his reward. When interviewed he declined to answer any questions, but later, through a detailed defence statement, he made known his case. In due course, when the Crown accepted the factual basis which was there set out, he pleaded guilty and the judge in those circumstances treated him as having entered an early plea of guilty. That is the first factor.
4. The second is this. The core of the applicant's case was accepted for the purpose of sentencing by the judge. The appellant was 26. He had joined the army at the age of 18. From about the age of 22 his life had run increasingly off the rails. His marriage broke down; not, as he admitted, without fault on his part. He left the army for a while, then he rejoined. In the aftermath of the breakdown of his marriage he was guilty of pestering and harassment of his wife. He became the object of an injunction, broke the injunction, and suffered a period of 6 weeks' imprisonment in consequence. He had lost touch with his children as a result, and during that same period he was convicted of some relatively minor offences. In addition, for some time he had become a heavy user of alcohol and of cocaine.
5. At the time of this offence he was on leave from the army and was heavily abusing both drink and cocaine. He became reacquainted with a man he had known for many years, a man whom he refused to name, saying that he had a reputation as a violent criminal. The appellant approached this man for a loan, saying that he was contemplating a foreign holiday. He was lent £3,000 in about May, with a term that £4,000 should be repaid by Christmas. The appellant's case was that he spent all the money rapidly on a mixture of what he described as partying and, perhaps more substantially, on cocaine. His case was that the lender then took advantage of his debt to him, albeit it was not repayable for several months, demanded immediate repayment and, by threats which were reinforced at gunpoint, and which included threats of violence to his estranged wife and children also, ordered the appellant to meet him the following day to carry out a task. That task was this robbery.
6. There may have been some less than fully explained features of that account. For example, the money was not due for several months when the robbery was carried out. Whether or not that indicates that the robbery had already been planned and the principal was seeking a recruit is perhaps less than certain. But it does not matter because the judge expressly accepted the basis of plea, as had the different judge who had presided at an earlier directions hearing. That said, as the sentencing judge acutely observed, it did not follow that the appellant had no responsibility for what had occurred. It was largely he who had caused his life to fall apart. It was his drug abuse which had led to the debt to the man who recruited him. He had apparently solicited the loan from a man whose reputation he knew well. All this the learned judge encapsulated in the short but accurate proposition that "people like that do not enforce their debts with polite letters". In addition, threatened as he was, the appellant benefited to no small extent. The loan of £4,000 was written off, and in addition he received the £2,000 of which he was found in possession. So he had a little under a third of the proceeds of the robbery.
7. Nevertheless, we must confront the submissions which Mr Mark has made that the sentence of 6 years did not sufficiently take account either of the unusual circumstances in which the robbery was committed or of the early plea of guilty. He has helpfully referred us in his grounds to the well-known cases of the Attorney General's References 3, 4, 8 to 11 and 16 [1990] 12 Cr. App. R. (S) 479. We do not demur from the general proposition that for robberies of small shops, garages, sub-post offices and the like, with threats of violence backed up by the production of a variety of weapons, generally a starting point in the very approximate region of 7 or 8 years on a plea of not guilty is likely to be appropriate. All manner of circumstances of course may take the starting point either up or down.
8. The present offence, however, is rather more serious. Although it does not reach the 15 years starting point after trial which is established by R v Turner (1975) 61 Cr. App. R. 67, appropriate to bank robberies or security van hold-ups when serious firearms are carried though no serious injury is done, this nevertheless has the hallmarks of professionalism which most, although not all, small shop robberies of the kind dealt with in the earlier mentioned case do not. These robbers were playing also for higher stakes. This was not a robbery aimed at a few hundred pounds in a shop till or even of £1,000 or £2,000 in a sub-post office. It was aimed at a security van making cash deliveries and there was in fact £20,000 in the box. It was a robbery carried out in the expectation, apparently justified, that despite the security systems in place, they could be overcome. No doubt, although a firearm in many cases is yet more serious, a machete at close quarters is a fearsome weapon also. It seems to us that there can be little doubt that had the principal or principals been apprehended in this case, this was a robbery which would have justified a sentence after trial in double figures.
9. The judge's sentence of 6 years on an early plea of guilty must assume a starting point somewhere in the region of 9 years. The question for us is whether that sufficiently adjusts the kind of sentence which we contemplate as being appropriate for the principal to the unusual accepted facts of this robbery in this appellant, together with his plea of guilty and his previous effective good character.
10. We are persuaded that it did not. Once it is accepted that appellant was a subsidiary offender, recruited and operating on instructions and under threat, then, even though he had exposed himself voluntarily to the risk, it seems to us that a starting point in the region of 9 years is too high. We observe also from the pre-sentence report that whilst the appellant appeared to be rather sorry for himself, he had impressed the probation officer with the genuineness of his regret for what had happened, and it is of course apparent, though inevitable, that to the extent that he had still at that stage a viable career in the army, it is now clearly gone. We understand also from that report that he has managed to clear himself of drugs.
11. In all those circumstances, it seems to us that the unusual factors in this case do call for a recognition in sentence beyond that which was given. We think that had this been a trial, the appropriate starting point would have been somewhere in the region of 7 years, and on a plea of guilty, accordingly, we propose to allow the appeal, quash the sentence of 6 years, and substitute a sentence of 4 and a half years. To that extent, the appeal is allowed.