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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 >> Clarke, R. v [2007] EWCA Crim 1016 (19 April 2007) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2007/1016.html Cite as: [2008] 1 Cr App R (S) 10, [2007] EWCA Crim 1016, [2008] 1 Cr App Rep (S) 10

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		19th April 2007

1. LORD JUSTICE MOORE-BICK: On 18th October 2006, at the Crown Court at Kingston-upon-Thames, the appellant pleaded guilty to 12 counts of robbery and 12 related counts of possession of an imitation firearm when committing a scheduled offence. Two further counts of robbery and two related counts of possession of an imitation firearm when committing a scheduled offence were left on the file on the usual terms.
2. On 29th November 2006 the appellant was sentenced by Her Honour Judge Matthews QC to a period of imprisonment for public protection on each count concurrent and ordered to serve a minimum of four and a half years' imprisonment, less the 111 days spent in custody on remand. He now appeals against sentence by leave of the single judge.
3. The offences in question were committed over the course of a period of 12 months between July 2005 and July 2006 and followed broadly the same pattern. The appellant was a compulsive gambler who would visit bookmakers to play on gaming machines. After losing all his money, he would produce what looked like a gun and demanded money from the cashiers. On some occasions he left the betting shop to obtain the weapon before returning; on others he was already carrying it with him when he entered the premises. On two of those occasions he followed a member of staff behind the counter and committed the robbery on the staff side of the premises. On each occasion he appeared to be remarkably calm and used the gun to reinforce his demands for cash. In some instances he explicitly threatened the lives of the cashiers. After committing the robbery he would calmly leave the premises.
4. The amounts stolen in the individual robberies ranged from £200 to over £5,000, and amounted in all to about £14,500.
5. Following the appellant's arrest, his home was searched and an imitation hand gun was recovered.
6. The appellant is a 36 year old man with no previous convictions who came to this country from Jamaica in 1995. He has considerable problems arising from drug and alcohol abuse, but his criminal behaviour is mainly caused by his addiction to gambling, which appears to have developed rapidly after his first encounter with gaming machines in 2004.
7. The pre-sentence report states that although the victims had suffered no physical harm, they had suffered significant and long-lasting emotional and psychological harm, having been put in fear of their lives. The author of that report expressed the view that the appellant is a dangerous man and posed a risk of serious harm through the commission of further offences as a means of obtaining money to feed his addiction.
8. Robbery is a serious specified offence for the purposes of the provisions of the Criminal Justice Act 2003 relating to imprisonment for public protection. The learned judge carefully considered the provisions of the Act before reaching the conclusion that there was a significant risk of the appellant committing further specified offences. She was influenced by the pattern of offending for which she had to sentence him, as well as the manner in which the offences had been committed. She was also satisfied that there was a significant risk of his causing serious harm to members of the public through further offending in the form of psychological injury. She therefore passed a sentence of imprisonment for public protection with a specified minimum period of four and a half years on the basis that, if she had been imposing a determinate sentence, she would have imposed a sentence of seven and a half years for the robbery and one and a half years consecutive for the use of the imitation weapon, amounting to a total sentence of nine years' imprisonment on each pair of charges.
9. It is not disputed that the judge was entitled to find that there was a significant risk of the appellant's committing further specified offences. It is submitted, however, that she was wrong to find that the appellant posed a significant risk of causing serious harm to members of the public in future because, despite what was said in the pre-sentence report, there was no evidence before the court that any of the victims had suffered really serious or long-lasting psychological consequences.
10. In support of that submission, our attention was drawn to the case of Zulfiqar Shaffi [2006] EWCA Crim 418, in which the court pointed out that there must be sufficient evidence to support a finding that the defendant poses a significant risk of serious harm. The case of Shaffi, however, was considered subsequently in the case of Johnson [2006] EWCA Crim 2486, in which this court pointed out that the absence of serious harm caused to victims in the past does not necessarily preclude a finding that there is a risk of such harm being caused in the future. "Serious harm" is defined in section 224(3) of the Act as meaning death or serious personal injury, whether physical or psychological.
11. None of those who were threatened by the appellant made a victim impact statement, although many of them said in their witness statements that at the time they were terrified and feared for their lives. It seems plain to us, as it no doubt did to the judge, that the experience was deeply upsetting and affected them badly, but it is right to say that there is no evidence that any of the victims suffered serious psychological harm as a result of this man's action; and indeed counsel for the Crown, when opening the case, accepted that that was so. However, the weapon used in this case, as can be seen from the photographs with which we have been supplied, was a very realistic imitation indeed of a service revolver. It appeared to contain bullets in the firing chambers, so that anyone threatened with it would naturally assume that it was loaded and ready for use.
12. The judge considered carefully the circumstances in which these offences had been committed and the manner of their commission and she formed the view that there was a significant risk of his causing serious harm to the public by further offending. In the case of Johnson this court pointed out that the appellate court should not lightly interfere with a decision of that kind made by the sentencing judge if it was clear that he had properly directed himself and considered the facts fully.
13. In our judgment, there is clearly a significant risk that if this form of offending were repeated in the future someone would suffer really serious psychological harm, whether as a result of being of a more nervous disposition than the cashiers in the betting offices confronted by this appellant, or as a result of vulnerability arising from pregnancy, youth, old age or infirmity of some kind. The judge was, in our view, entitled to reach the conclusion that she did and it is not one with which we can properly interfere.
14. It is said that the minimum period specified by the judge of four and a half years' imprisonment, reflecting a determinate sentence of nine years' imprisonment which she said she would have passed in other circumstances, was too long following guilty pleas. However, Mr Wright, who appeared for this appellant, accepted that there were difficulties in the way of that argument arising from the sheer number of offences for which this appellant stood to be sentenced. He submitted that a robbery of this kind fell within the medium range of seriousness, for which a starting point of between two and seven years following a trial would be appropriate. Given the fact that the judge had to sentence the appellant for 12 separate offences of robbery using an imitation weapon of the kind that we have described, we do not consider that a determinate sentence of nine years, even following a plea of guilty, would have been manifestly excessive. For those reasons, the appeal must be dismissed.