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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 >> Leacock & Anor, R. v [2013] EWCA Crim 1171 (13 June 2013) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2013/1171.html Cite as: [2013] EWCA Crim 1171

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		13 June 2013

1. LORD JUSTICE ELIAS: On 13th July 2012 at the Crown Court in Guildford before His Honour Judge Critchlow, the appellants pleaded guilty to count 1, which was conspiracy to rob contrary to section 1(1) of the Criminal Law Act 1977. There was a trial before His Honour Judge Addison on count 2, which was having an imitation firearm with intent; that was a ten day trial and they were acquitted. They were sentenced following that trial in relation to count 1 and each of the appellants received an extended sentence of 12 years, made up of a custodial term of nine years and an extension period of three years. There was a co-accused, Paul Tucker. He was acquitted on count 1 but was convicted on count 3, which was a money laundering count. They appeal against sentence with leave of the single judge.
2. The facts were these. On 20th April 2012 a G4S security van was parked outside Blockbuster in Croydon Road, Caterham. The van was picking up money. The driver had collected a cassette box containing approximately £900 from the shop when he was approached by Leacock. Leacock was, according to the finding of the judge, holding something in his hand which might have looked like a gun. Plainly it was not a gun because the jury acquitted on that charge.
3. Leacock stole the cassette box from the open chute, he then went to a vehicle which was being driven by Samuels and they drove off. The car was a cheap car which had been acquired specifically for the purpose of the robbery. They went to the house of the co-accused Tucker and left the cassette box there. The plan was that it would be opened there with cutting equipment. Then they went to some nearby garages where they set the car alight. They were arrested soon after the incident had occurred.
4. They both have extremely bad records. Leacock had 10 previous court appearances for 21 offences between 1991 and 2004. They included offences of robbery, theft and burglary. The last conviction was in 2004 when he received a 12-year sentence for aggravated burglary, false imprisonment and having a firearm with intent. That offence itself was committed at a time when he was on licence as a result of an earlier eight year sentence which was imposed for a robbery in 1999. Samuels had 12 previous court appearances for 27 offences between 1998 and 2008. They too included theft, robbery and burglary and various road traffic offences. He was sentenced in 2003 to six-and-a-half years for two counts, each of robbery, and for having a bladed article. There was a further sentence of six-and-a-half years for conspiracy to rob in 2008.
5. The judge in his sentencing remarks recounted the facts of the case in some detail. He found that Leacock had been wearing a Balaclava and had some object in his hand. The judge said he had been unable to determine what it was, but it was something intended to frighten the driver. The judge made it plain that he was sentencing on the basis that whatever it was, it was not an imitation firearm. Leacock was an extremely powerful man and would have been a very frightening sight. The driver was terrified and effectively handed over the cash box immediately.
6. The judge said they would be given credit for the guilty plea. There has been some debate this morning as to whether it was the judge's intention to give them full credit. He did not indicate otherwise and we think in the circumstances we ought to assume that that was his intention. But he identified two aggravating features in particular. The most serious was the fact that both had these very significant previous convictions, but a second aggravating feature was that they were on licence at the time these offences were committed.
7. The court had to consider whether the offence fell within the sentencing guidelines for robbery. The judge concluded that they did not because it was a professional commercial robbery for which no specific sentencing guidelines are given. These were persistent professional robbers. The judge concluded that there was no reason to distinguish between them since they were parties to this joint enterprise and accordingly he gave them the same sentence.
8. In considering the imposition of the extended sentence, the judge took into account their records and essentially on the basis of those antecedents he inferred that there was a significant risk to members of the public of serious harm and that accordingly they satisfied the dangerousness criteria. This justified the extension of three years to the custodial term.
9. There are numerous grounds of appeal, most of which are common to both appellants. First, it is said that the judge was not entitled to conclude that this was a professional robbery. He should have held that it was a less sophisticated commercial robbery falling under the guidelines and although the offence does not fit neatly into any of the categories for less sophisticated commercial robbery, it is suggested that it should have been in the category where the starting point is four years and the range is two to seven years. Second, it is said that the starting point in any event must have been too high, or alternatively insufficient credit must have been given for the plea, because the overall sentence is too much. Third, it is submitted that the judge was not entitled to conclude that Leacock had in his hand something that looked like a weapon, given that the jury had concluded that he did not have a firearm. It is said that the judge's analysis undermined the verdict of the jury. Fourth, Samuel contends that his lesser role in the offence and the fact that the planning of the operation was carried out substantially by Leacock, means that there should have been some disparity in the sentence between the two men. Leacock finally prayed in aid certain personal mitigation.
10. We do not accept that the judge was wrong to say that this was a professional commercial robbery. It was planned and it plainly involved a degree of organisation. That is demonstrated by the fact that they acquired a car specifically for the purpose, they had planned precisely what they were going to do once the money had been taken, and they were identifying transit vans as the focus of their robbery. In all the circumstances we think the judge was entitled to conclude that this did not fall into the category of less sophisticated commercial robbery, but did come into the higher category. We accept, however, that the planning and organisation was not as sophisticated as is the case in some professionally planned robberies.
11. We do not accept the submission that the judge was wrong to conclude that Leacock had something in his hand which was threatening. It is established in the case of Khan, amongst others, [2010] 1 CrAppR (S) 1 that a sentencing judge is entitled to take into consideration evidence that might have formed part of a separate count, as long as he is satisfied that it had been established to the criminal standard. That cannot of course be done if it is inconsistent with the jury's verdict. But we do not see that this finding is inconsistent. The jury's verdict merely established that what was in the hand was not a gun or an imitation gun. It was open to the judge in principle to conclude on the basis of the evidence which the judge heard and we have not, that he was satisfied so that he was sure that there was something in the hand of Leacock at the time when he carried out the offence which aggravated the fear of the transit van driver. The judge presided over the trial and he was in a position to determine whether there was some implement in Leacock's hand and we do not see that we can properly gainsay his conclusion on that point. There is no basis, it seems to us, for saying that he gave that feature undue weight. It was a factor he was entitled to weigh in the balance and it was up to him then to give it the weight that he thought appropriate.
12. Samuels submitted that he should have had a lower sentence. He did to some extent play a lesser role by virtue of being the driver in the actual offence. Significantly there were features of the planning which demonstrate that it was Leacock rather than Samuels who had played the leading role. It is not disputed that he initially planned the robbery -- he provided the balaclavas, it was his car that was driven to pick up the car used for the purpose of the robbery and he bought the cheap car. He had visited Tucker on the morning of the robbery in order to make sure that he had the means of cutting open the cash box. We think that his greater role required some reflection in the sentence which the judge imposed on the two men.
13. We were referred in the written arguments in particular to various authorities relating to the question of whether or not this was a professionally planned robbery, but they tend to turn on their own facts. Counsel for the appellants relied in particular on the case of Yarboi [2009] EWCA Crim 2760, but that case is of no assistance in circumstances where the judge has concluded, in our view justifiably, that the case falls within the higher category of a planned professional robbery. Moreover, the cases to which we were referred do not involve defendants with the same criminal records.
14. In our judgment, a starting point for a professionally planned robbery of this kind would be in the region of seven to eight years. Indeed, even if one were to adopt the guideline for the less sophisticated robbery, it seems to us it would be at the very top of the range which would be seven years.
15. There are then the aggravating features. On any view the fact that there have been a number of robberies committed by these defendants in the past was bound to weigh very heavily with the judge and was bound to involve a significant increase in the sentence that he would otherwise have imposed. The fact that they were on licence was also, as we have indicated, an aggravating feature. It is right to say, however, that no firearms were used and there was in the event no violence.
16. We think a nine year custodial term was too high because it reflects a sentence of 13 and a half years after a trial. We do not think that that was a justified starting point. We do think that somewhere in the region of 12 years would have been an appropriate sentence had there been no pleas in this case, given the aggravating features. So we reduce the custodial term for Leacock to one of eight years, making the extended sentence of 11 years, and for Samuels the custodial term is seven years.
17. Leacock made no complaint about the extended period of three years. Given his antecedents, and the fact that the previous robberies involved dangerous weapons, he could not realistically do so. Samuels, however, submits that there was no basis for an extended sentence in his case. Mr Zachary, counsel for Samuels, submits that the judge did not focus adequately on the nature of the previous robberies. It is true that he had a bladed article in the robberies for which he was sentenced in 2003, but that was when he was aged about 19 or 20. The more recent robbery did not involve him in any way using dangerous weapons or anything of that kind. Counsel says that the judge was not justified in inferring that he satisfied the dangerousness criteria.
18. We accept that submission. It seems to us that the judge has simply put both defendants in the came category. In our view, if the judge was going to find that Samuels was dangerous, it would certainly have been desirable if he had had a pre-sentence report which could have provided further and more detailed information about his potential danger to the public.
19. Accordingly, we uphold these appeals. In the case of Leacock we replace the extended sentence of 12 years with an 11-year extended sentence -- that is eight years custodial and a three year extended licence period -- and for Samuels we quash the 12-year extended sentence and we substitute a custodial sentence of seven years. To that extent these appeals succeed.