Neutral Citation Number: [2011] EWCA Crim 2609
Case No: 201101077 A8 201101258 A8 201101256 A8
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Thursday, 3 November 2011
 
B e f o r e:

LORD JUSTICE MOORE‑BICK 

MR JUSTICE IRWIN

MRS JUSTICE THIRLWALL DBE 
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R E G I N A 

v 

(1) LASCHELLE NAITHAN LAWRENCE
(2) JAKE WHITTINGHAM
(3) ANDREW ANTHONY DUNCAN 
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Mr M Green appeared on behalf of the First Appellant
Miss T Mylvaganam appeared on behalf of the Second Appellant
Mr M Green appeared on behalf of the Third Appellant 
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J U D G M E N T 

LORD JUSTICE MOORE-BICK:  Thirlwall J will give the judgment of the court.

MRS JUSTICE THIRLWALL:  

1.	Laschelle Lawrence is 22 years old.  Jake Whittingham is 22.  Andrew Duncan is 20.  Each of them appeals with the leave of the single judge against sentences passed upon them at Kingston Crown Court in February of this year.  

2.	Procedurally the history is this.  On 16 August 2010 at Kingston Crown Court, Lawrence and Whittingham pleaded guilty to count 2, an offence of robbery.  On 18 October 2010 in the same Crown Court, Duncan pleaded guilty on re‑arraignment to count 1, conspiracy to rob.  On 3 February of this year in the same Crown Court before HHJ Dawson, Lawrence and Whittingham were both sentenced to 8 years' imprisonment, with a direction under section 240 of the Criminal Justice Act 2003 that 280 days should count towards their sentences.  Duncan was sentenced to 8 and a half years' detention in a Young Offender Institution, with a direction under section 240 that 203 days should count towards his sentence.  We note that the court record shows this as a sentence of imprisonment.  The record should be amended to show a sentence of detention.

3.	There were two co‑accused; Lee Byer, who is now 33 years old, had pleaded guilty to both counts 1 and 2, and he was sentenced to 12 years' imprisonment concurrent on each count.  Tariq Foster, who is now 19, pleaded guilty to count 2 and was sentenced to 4 and a half years' detention pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000.  

4.	The facts of the offences were these.  On 3 February 2010 Byer called a taxi and asked the driver to take him to an area in Richmond where there is a jeweller’s shop called Horton's.  Byer was known to the taxi driver, having used the same firm on a number of earlier occasions.  It was the Crown's case that Byer was carrying out a reconnaissance mission to look at the jeweller’s shop.  

5.	On the afternoon of 5 February, some two days later, Byer contacted the same taxi driver and asked to be taken to the same location.  He told the driver to wait in a car park in Richmond to pick up some other men.  At half past 2 the same day, the appellant Duncan attended Horton's Jewellers.  He was very smartly dressed.  As is usual with jewellers, the premises were locked because of the expensive jewellery inside.  Duncan pressed the buzzer to gain entry and a member of staff pressed the button to open the door to allow him to come in.  A woman who supplied jewellery to the jewellers from time to time was in the shop with her two young children.  One was a toddler; the other was a little child in a buggy.

6.	Duncan went into the shop.  Barging in behind him were two men wearing builders' hats, goggles, reflective jackets and gloves.  Duncan went back outside where he acted as a lookout.  He maintained contact with Byer on a mobile phone while the other two carried out the robbery.

7.	One of the men smashed the window display with a hammer and took items of jewellery.  The other approached a member of staff, pointed a gun at her chest and told her not to move.  The cabinet in front of her was smashed and jewellery was taken.  One of the raiders went into a back room where the safe was, but ran out again moments later.  The two of them and Duncan ran off.  

8.	The two men in builders' clothing went to the car park.  They told the taxi driver to get in and drive.  When he asked where they wanted to go, he was told, "Just fucking drive, don't ask questions".  They directed him to Richmond Circus, got out of the car and ran off.  Neither of them has been arrested.  The taxi driver contacted the police and he later identified Byer.

9.	In the course of that raid which was count 1, £150,000 worth of jewellery was taken.  None of it was recovered.  It is plain from the statements obtained from those people present in the jeweller’s shop that they were all utterly terrified by this incident.  They describe significant psychological damage.  The mother and her two very young children were particularly badly affected.  

10.	In the course of the opening, the judge watched closed circuit television footage of this robbery and he also saw closed circuit television footage of the second robbery which took place on 27 April 2010.  On that occasion Foster, who is not before this court, went to Stain’s jeweller’s shop in Victoria, central London.  He was very smartly dressed.  He pressed the buzzer to gain entry, but on being allowed into the shop, immediately left.  He asked the manager to leave the door open, but the manager closed the door.  Foster returned to the shop, pressed the button again and was re‑admitted by the manager.  

11.	Lawrence and Whittingham followed Foster into the shop.  They too were wearing high visibility builders' clothing, but they were not wearing anything to obscure their faces.  The manager tried to get out of the shop, but Foster and Lawrence manhandled him back inside.  Also present in the shop were a man and a woman who had been looking at jewellery together.  They were cowering in a corner in obvious fear, as the judge later noted.  

12.	Whittingham jumped over the counter and smashed display cases with a hammer.  He put items of gold jewellery into a sports holdall.  Lawrence acted as lookout, and also smashed counters near the door.  He shouted at the others to hurry up because the alarm was sounding.  They then ran out into the street.  A motorist saw the men running out of the jewellers shop and took a note of the registration number of the car.

13.	The car was registered to Byer's girlfriend.  Apparently, he had begged her to allow him to borrow the car and use it that day.  Two hours later it was stopped in Kensington with Byer at the wheel.  Foster was in the front passenger seat and Whittingham and Lawrence were in the back.  Some jewellery was found in Foster's clothing, and in the course of that afternoon, all the jewellery stolen in the second robbery was recovered.  It was worth about £10,000.

14.	Byer was interviewed.  He made no comment, and subsequently pleaded guilty on a basis of plea which effectively said that he was not the orchestrator of the robberies, and he carried them out to try and cancel a significant drug debt.

15.	Lawrence and Whittingham made no comment in interview, but later pleaded guilty, as we have said.  Foster made no comment, and said he had been given stolen items under pressure from others, but later pleaded guilty.  

16.	Duncan entered a basis of plea as follows: 

"1. I accept I knew I was to be involved in the robbery on 5 February 2010.  

2.	I was told that I was to get the door of the shop and assist the other two males in gaining entry.  

3.	I was then to wait outside the door as lookout and assist in the door staying open for the males to exit.  

4.	I was not aware of any firearm and was shocked when I saw it brandished.  I was shocked by the events inside.  

5.	I stayed behind until the males exited and made my way from the shop following the others.  

6.	I agreed to play my part as I was also concerned that there might be consequences towards my safety if I did not.  I am not saying I acted under duress but in an ill founded way."  

17.	It is right to say that at an earlier stage Duncan had been advised, as we have been told, that he may have a defence of duress in this case, but later advice was to the contrary effect.  It is also right to say at this stage that the judge had before him psychological reports which record that Duncan has significant learning disabilities.  His IQ is in the lowest 2 per cent of the population.  In due course the judge sentenced him on the basis that he was wholly unaware of the existence of the firearm, still less that it was going to be used.

18.	Lawrence had one previous conviction for wounding.  Whittingham had one conviction which the judge regarded as minor.  Each appellant submits that his sentence was manifestly excessive, firstly in the light of the gravity of the offence; secondly his level of participation; and thirdly his youth and criminal record.

19.	In considering sentence, the judge was, first of all, directed by the prosecution to Part 1 of the Robbery Guideline issued by the Sentencing Council.  He said in terms that he did not find the Robbery Guidelines particularly helpful.  He was referring there to Part 1 and in particular to the section headed, "Street robbery or mugging, robberies of small businesses and less sophisticated commercial robberies".  It is plain from his reference to the case of McCaffrey that he considered that these robberies came into Part 2 of the Guidelines, which deals, amongst other things, with professionally planned commercial robberies, for which no suggested starting points are provided and in respect of which existing case authority is still valid.

20.	It is submitted that the judge was in error in that regard, and all counsel appearing for the appellants submit that this was plainly a less sophisticated commercial robbery within Part 1 of the guidelines.  We disagree.  In our judgment, the focus of that Guideline is on robberies of a wholly different and much lower level of seriousness.  These were violent smash and grab raids on jewellers’ shops, which were carried out with terrifying and ruthless determination in the middle of the day.  The judge was correct to find that Part 1 of the Robbery Guidelines did not apply.  

21.	We take into account that, as the judge found, there was some lack of sophistication in that the getaway arrangements were not well planned; the judge described them as amateur.  But the aggravating features were these: these were planned robberies; several offenders were involved; jewellers’ shops were plainly targeted; in the first a disguise was worn.  We have mentioned more than once already in the course of argument and in the course of this judgment the terrifying nature of the offences for the people who were in the shop.

22.	Nonetheless, having considered the submissions made by each defendant in respect of the offences themselves and also in respect of their personal mitigation, in our judgment the appropriate sentence for these offences before personal mitigation is considered would have been one of 11 to 12 years.  Making a proper allowance for the personal mitigation of each of the appellants, in particular their youth and lack of relevant previous convictions and the appropriate discount in relation to their pleas of guilty, it is our judgment that the correct sentence in each case is one of 7 years.  

23.	So far as Duncan is concerned, we see no reason  to distinguish him from the other two appellants given his very significant intellectual limitations and his young age.  Although the offence with which he was concerned was  more serious and his plea was tendered at a later stage, his understanding of the consequences of his offending and of his actions generally is plainly extremely limited.  Accordingly, the sentence of 8 years imprisonment (Lawrence and Whittingham) and 8 years detention (Duncan)  are reduced to 7 years imprisonment and 7 years detention respectively.  

24.	Accordingly, to that extent these appeals are allowed.