Case No: 2003/01879/A2+2003/01880/A2

Neutral Citation Number:  [2003] EWCA Crim 3089
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL

Friday 7 November 2003

Before :

LORD JUSTICE POTTER
MR JUSTICE CRESSWELL
and 
MR JUSTICE LANGLEY
-	- - - - - - - - - - - - - - - - - - - -
REFERENCE BY THE ATTORNEY GENERAL UNDER

S.36 CRIMINAL JUSTICE ACT 1988

ATTORNEY GENERAL’S REFERENCE NOS. 21 AND 22 OF 2003

(PETER WEBSTER and LEE HAHN)

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Mr T Adebayo on behalf of the Attorney General
Mr R Lowe on behalf of the Offender Lee Hahn
Mr J Stanniland on behalf of the Offender Peter Webster

Hearing date : 23.10.2003
- - - - - - - - - - - - - - - - - - - - -
JUDGMENT 

Lord Justice Potter: 
1.	This is an application by the Attorney General for leave to refer two cases to the court under s.36 of the Criminal Justice Act 1988 on the grounds that the sentences imposed on two offenders, Lee Sebastian Hahn and Peter Alan Webster were unduly lenient.  Both offenders are 23 years old, having been born on 4 August 1980 and 26 August 1980 respectively.
2.	Together with a third man, John Hahn, they faced an indictment containing six Counts.  Count 1 charged Lee Hahn with taking a motor vehicle without consent.  Count 2 charged Webster alone with allowing himself to be carried.  Counts 3, 4, 5 and 6 were joint allegations against both offenders together with John Hahn.  Counts 3 and 4 charged respectively robbery and possession of a firearm or imitation firearm while committing a specified offence namely robbery.  Counts 5 and 6 were in similar terms in respect of a second robbery.
3.	On 28 November 2002 at Bristol Crown Court, Lee Hahn entered guilty pleas to the indictment.  Webster entered a plea of ‘guilty’ to Count 2 and ‘not guilty’ pleas to the other Counts.  John Hahn entered ‘not guilty’ pleas to the indictment.  Webster and John Hahn were tried on a four count indictment before His Honour Judge Foley and a jury.  On 26 February 2003 John Hahn was acquitted of all the charges, whereas Webster was found guilty.  Thus Webster and Lee Hahn fell to be sentenced together on all the charges, Lee Hahn being entitled to credit in the sentencing process for his plea of guilty.
4.	On 26 February 2003, Judge Foley sentenced Lee Hahn to 8 years’ imprisonment for each of the two robbery offences to run concurrently; he imposed sentences of 3 years for the two firearms offences and 3 months for the taking without consent, all to run concurrently with the 8 year sentences, thus making a total of 8 years imprisonment in the case of Lee Hahn.  
5.	Webster was sentenced to 9 years’ imprisonment for each robbery offence to run concurrently; 3 years for the firearms offences, to run concurrently and 3 months for the offence of allowing himself to be carried, also to run concurrently.  Thus in the case of Webster a total of 9 years’ imprisonment was imposed.
6.	Each offender was part of a team of men who used a stolen motor car to commit two robberies at gunpoint in a short space of time.  The guns were imitation weapons.  The first victim was robbed of her handbag in the street.  The second victim was robbed of his motor car whilst he was parked in a lay-by and was subjected to threats to shoot him.  
7.	In a little more detail the facts of the case are these.
8.	At about 5.20pm on 18 July 2002, a Mrs Smith parked her red Vauxhall Nova motor car in the car park in a road called Cribbs Causeway in Bristol.  When she returned at 7.15pm she discovered that it had gone missing.
9.	At about 6.10pm on 18 July 2002 the victim, Toyin Oso, was returning from work on the bus.  She got off the bus and started to walk along the path before turning into Baileys Court Road, Bradley Stoke.  She had not gone far along the road when the Vauxhall Nova pulled up on the pathway next to her with its wheels actually on the pathway.  Two men got out of the front of the car and walked up to her.  The man who had been driving, Lee Hahn, said “Hand me the bag”.  As he said this, the victim could see he was holding a black gun at about waist height.  It had a sliding top.  Fearing for her life she handed over her handbag.  The two men then walked back to the car, got in and sped off.  The victim noticed there were two other people in the back of the car crouched down.  
10.	The victim was assisted by a couple who had been driving nearby and helped her flag down a police vehicle.  Her handbag was recovered a week later in a road nearby.  A number of items had been stolen from it.  On 30 July 2002 the victim attended an identification parade and picked out Lee Hahn as the man carrying the gun.  
11.	On the evening of 18 July, Alan Sully was driving home from his work in his silver BMW.  At about 6.40pm he pulled into a lay-by at Whiteshill Common, Hambrook in order to read a personal letter.  After some five minutes he heard voices shouting at him to get out of his car.  He saw three men approach his car.  Two stood by the driver’s door and the other by the passenger door.  He tried to stop them opening the driver’s door but heard one of the men say “Get him with the gun”.  The man who said that was Lee Hahn.  As he struggled with the driver’s door he heard Lee Hahn say “Shoot him” two or three times.  
12.	At this point the victim noticed one of the men was holding a shiny metal gun with a round barrel.  The prosecution’s case was that this man was John Hahn, (who was in fact acquitted).  The victim now feared the worst and did as the men said, allowing them to open the driver’s door and he got out of the car.  The three men got into the car.  When he got out, the victim noticed the Vauxhall Nova also parked in the lay-by with a male in the driver’s seat.  
13.	The men had trouble starting the victim’s car.  The victim tried to take the ignition keys away and once again there was a shout for him to be shot.  Eventually he helped the men to start the car and it drove off followed by the red Vauxhall Nova.  
14.	The victim immediately went to a nearby house and telephoned the police to report the robbery.  He had made a note of the registration number of the Vauxhall Nova which he gave to the police.  
15.	At about 7.30pm on the same day, police officers on the ground and in the air followed the Vauxhall Nova.  It was seen to contain two people.  At 8.00pm it was being driven towards Westhill Road, Blackwell which is a dead end.  Both driver and the passenger were arrested nearby.  The driver was John Hahn and the passenger was a man called Lee Coles against whom proceedings were subsequently discontinued.
16.	Next day, 19 July 2002, both Lee Hahn and Webster were arrested.  When interviewed about the robberies, Lee Hahn made no comment.  On Webster’s arrest, he said “It was only a matter of time”.  At interview he accepted his presence at both robberies but said he remained in the Vauxhall Nova when both were committed.  
17.	The stolen BMW was found at some garages to which Lee Hahn had access.  His finger and palm prints were found both inside and outside the stolen BMW and inside the Vauxhall Nova.  
18.	The firearm used in the robberies was never recovered.  The prosecution were unable to say whether it was real or imitation.  The victims’ evidence was that they thought that the firearm was real.  However, Lee Hahn gave evidence in the trial on behalf of his brother and asserted that the firearm was a toy gun and for the purposes of sentence that plainly had to be accepted.  
19.	The aggravating features in the case of both Lee Hahn and Webster appear to be as follows.  First, both were part of a team.  Second, the robberies involved the carrying of a weapon, namely an imitation firearm.  Third, during the second robbery there were threats to shoot the victim which very much alarmed him.  It should be noted that in respect of Webster, the case in respect of possession was one of joint possession.  It was not suggested that he held the weapon during the robbery.  
20.	In the case of Lee Hahn the mitigating features of the case appear to be first, that he pleaded guilty.  Second, his relative youth.  In the case of Webster, he too was relatively youthful and, as already indicated, it was not suggested that he personally carried the weapon or uttered threats.  It is plain that he played a lesser role in the robbery than Lee Hahn.
21.	So far as the offenders’ antecedents were concerned, Lee Hahn has a poor criminal record, starting as a juvenile at age 15.  It includes burglary and theft and, on one occasion in 1997, possession of an offensive weapon.  He had only once previously received a custodial sentence, namely 15 months’ detention in a Young Offenders’ Institution on a plea of guilty to burglary.  He had no convictions for robbery or firearms offences.  He appears to have had a cocaine habit at the time of the offences which cost him £50 per day.  In the case of Webster, he had a shorter but largely similar criminal record to that of Lee Hahn.  In December 2002 he was sentenced to 14 months’ imprisonment for a series of thefts from the person.  He too was funding his drug addiction.  
22.	It has been the burden of the submission for the Attorney General that the overall sentence for the offenders did not adequately reflect the gravity of their offences.  In particular it has been submitted that the sentences for firearms offences should have been made to run consecutively to the sentences for the robberies.
23.	In this respect we have been referred to three particular authorities.  First, the case of R v McGrath [1986] 8 Crim App R (S) 372, in which this court made clear that, whilst s.17(2) and Schedule 6 of the Firearms Act 1968 do not on their true construction require the imposition of a consecutive sentence for possession of a firearm in the course of committing an offence listed in Schedule 2, it should be the norm to do so, while at the same time having regard to the principle of totality.  The second case is R v Avis and others [1998] 2 Crim App R (S) 178 in which Lord Bingham C. J. set out the sentencing considerations to be borne in mind in the case of firearms offences in the light of the increase of the use of guns in 1997 and the court’s view that hitherto the level of sentencing had not sufficiently reflected the gravity of such offences.  
24.	Finally we have been referred to Attorney General’s References (Nos.58-66 of 2002) (R v Warren, Coudjoe and others) [2003] EWCA Crim 636.  In that case, in the light of the further increase in firearms use, particularly in the case of drug-related crime, this court considered the case of nine offenders, members of a notorious drug-dealing gang in South-East Manchester called the Pitt Bull Crew who carried, sometimes openly, loaded firearms ostensibly for their own protection but also to enforce their territorial claims against rival gangs over a period when shootings regularly occurred and their retail drug dealing was widespread.  The ages of the gang members varied between 17 and 25.  The court dealt with them in two groups.  One of four senior members personally involved in the carrying and use of weapons, the other of five more junior members of the gang who participated in the activities, aware of the possession and use of firearms by others rather than themselves.  At paragraphs 48-49 the court proceeded to consider the extent to which the criminal activity embodied in the principal charges of conspiracy to supply drugs of classes A and B were aggravated by the possession and use of guns.  The court stated:
“In most cases where guns are carried and used, it is desirable to pass a consecutive sentence to mark the additional gravity attributable to the presence of firearms.  But if that is done in a case such as this, the sentences which are passed have to be adjusted to ensure that the total sentence is not too high.”
25.	In making his submissions to us on behalf of the Attorney General, counsel has adopted what we are bound to say we regard as a simplistic approach to the sentences imposed in this case.  He has submitted that, in the light of the authorities to the effect that in principle consecutive sentences are appropriate in relation to firearms offences committed in the course of another offence, and because of recent reaffirmation of the need to take a severe attitude towards such offences, the judge was in error in failing to impose consecutive sentences in this case. Thus the total sentences imposed should have been not 8 and 9 years respectively in the case of Lee Hahn and Webster but 11 and 12 years, the total of the separate terms imposed in respect of the robbery counts and the firearms counts.  
26.	We do not agree.  It is correct that, as a matter of sentencing technique, and as a recognition of the intention of Parliament that the possession of firearms should be regarded as an aggravating feature in relation to other offences, this court has made clear in the authorities above referred to that, when passing sentence, it is appropriate for the sentencing judge to render the sentence passed in respect of the firearms offence consecutive to that in respect of the other offences.  Indeed, in R v Greaves and Jaffier [2003] EWCA Crim 3229, 4 November 2003, decided after the argument but before our reserved judgment in this case, it has now been made clear that such sentencing technique should be adopted as a matter of sentencing policy: per Lord Woolf CJ at para 14.  However, this court has previously emphasised, and Greaves and Jaffier confirms, that the judge must at the same time have regard to the principle of totality in arriving at the appropriate overall sentence imposed.  
27.	Thus the policy does not fall to be applied willy-nilly in a case where the judge, in passing sentence in respect of the other offence, has taken into account the possession and/or use of the firearm (or imitation firearm) as an aggravating feature already reflected in the term imposed in respect of that offence.  That was made clear by this court in R v Bottomley [1985] 7 Cr App R (S) 355 in which the judgment was delivered by Steyn J who stated that, albeit an offender who commits a robbery or other offence while carrying a firearm must normally expect a consecutive sentence for the offence of carrying that firearm,
“No doubt the sentencer is entitled in his discretion to follow the course of imposing concurrent sentences provided of course that the gravity of the criminal conduct of carrying a firearm in the commission of an offence is properly reflected in the principal sentence.”
28.	Again, that position was endorsed in the case of McGrath (above) at p.375.  Whereas in Greaves and Jaffier a clear indication has now been given that the technique of consecuting sentencing should be adopted in such cases, it leaves unaffected the need to have regard to totality in relation to the overall sentence imposed.  
29.	Hitherto, it has frequently been the case that a judge passing sentence in the case of a robbery which has involved the possession or use by the robbers of a firearm or imitation firearm, will take that element into account when passing sentence in respect of the (principal) offence of robbery.  Indeed, he may have deemed it preferable in the interests of totality to render any sentence for the firearms offence concurrent, so as to avoid the appearance of under-sentencing in respect of the robbery itself.  The principle of consecutive sentencing is particularly desirable and appropriate when the possession or use of a firearm is not the essence, or an intrinsic part, of  the other offence(s) charged; in such a case there is an ‘add-on’ or aggravating element which clearly requires recognition by a consecutive sentence.  Thus, in a case such as McGrath, where the other offence was one of criminal damage and in Attorney General’s References (Nos 58-66 of 2002) where the other offences were offences of widespread drug dealing, the appropriate approach in respect of the firearms offences was plainly that of consecutive sentencing, while bearing in mind the principle of totality in relation to the overall period of imprisonment imposed.  On the other hand, in many cases of robbery, the possession and use of firearms may, as in this case, constitute the very violence or threat of violence which is an essential element of the offence charged.  In such a case the requirement for consecutive sentencing has hitherto been flexibly considered and applied.  
30.	In our view, when it appears from the judge’s sentencing remarks, or simply from the level of sentence imposed upon a robbery charge, that the judge has in fact imposed a sentence appropriate to the overall criminality of the enterprise before him, including the possession of a firearm, then the fact that he has allotted that sentence entirely to the charge of robbery and has imposed a concurrent sentence in respect of the firearms charge will not afford grounds for interference by this court.
31.	That appears to us to be the position in this case.  We certainly do not consider it to be established that the judge erred by imposing an unduly lenient sentence.  He plainly fashioned his overall sentence with an eye to totality.  These robberies were not robberies in which any substantial violence was used.  It was the brandishing of the (imitation) gun coupled with the threat to shoot which was the essence of the robbery charges.  Although it has been observed that, where threats are uttered, the distinction between an imitation firearm and a genuine firearm capable of use is not a live distinction so far as the victim is concerned, we do consider that, in assessing the nature and seriousness of the offence at the point of sentence, the distinction is relevant so far as the judge is concerned.  It is some indication of the level of violence to which the defendant may be prepared to go, or of which he is prepared to take a risk.
32.	In the case of Lee Hahn, who pleaded guilty and was therefore entitled to a discount of up to one third of the sentence appropriate to a conviction following trial, the judge imposed a sentence of 8 years’ imprisonment which in turn suggests a starting point of some 12 years had the matter been contested.  Webster received a sentence of 9 years following conviction, but he played substantially the lesser role throughout.  Had the sentences imposed in respect of the firearms offences been rendered consecutive the overall terms of imprisonment would have been excessive.  When invited to refer us to any authority in this court which indicated that the overall term imposed was lenient or out of line with the levels of sentence for robberies of this type as approved in this court, counsel for the Attorney General was unable to do so.
33.	In these circumstances, we refuse the application.