No: 201702169 A2
Neutral Citation Number: [2018] EWCA Crim 500
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Friday  19th   January  2018

B e f o r e:
LORD  JUSTICE  SIMON

SIR  RODERICK  EVANS

and

HIS  HONOUR  JUDGE  PICTON
 (Sitting as a Judge of the Court of Appeal Criminal Division)

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R E G I N A
 
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ANTHONY  JAMES  PATRICK  MILLER

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Mr J Weate (Solicitor Advocate) appeared on behalf of the Appellant

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J U D G M E N T
LORD JUSTICE SIMON:  
1.  On 25th April 2017, following a trial in the Crown Court at Liverpool before His Honour Judge Murray and a jury, the appellant was convicted of two counts: robbery (count 1) and false imprisonment (count 2).

2.  On 27th April 2017, he was sentenced on each count to an extended sentence of 17 years, comprising a custodial term of 15 years and a two year extended period of licence.  

3.  A co-defendant, Susan Garside, was also convicted on counts 1 and 2.  She was sentenced to concurrent terms of twelve years' imprisonment on each count.

4.  The appellant appeals against that sentence with the leave of the single judge on one issue only: whether the judge should have imposed an extended sentence.

5.  Garside, who worked as an escort, met the 72 year old victim of these crimes in the spring of 2016.  He had found her via an escort agency and would meet her about twice a week.  They would go to different places to eat and drink, and, on occasions, he would pick her up and take her back to his home.  He described them as having a friendship and a business relationship.  He knew that she was an alcoholic.

6.  He recalled her talking about the appellant (her ex-partner).  On a couple of occasions when he had gone to her home, the appellant had confronted him.  He had been threatening and had demanded that he stopped seeing her.  

7.  On 4th April 2016, at around 10am, the victim had made contact with Susan Garside to arrange a meeting.  She said that she could not leave her house as the front window had been smashed, and so they arranged that he pick her up from her house.

8.  At about 3pm he arrived at her address and went into the living room.  Almost immediately, three masked men entered the room and began to attack him.  They wrestled him to the ground and caused his glasses to fall off.  He believed that Garside had left the room during the struggle and thought that one of the voices belonged to the appellant.  

9.  The men forced the victim into another room and threw him to the floor.  A violent struggle ensured, during which he was punched to the face and head, and struck on his body.  The men made several threats towards him, saying that they would stab his eyes out.  One of them held a six to eight inch knife and he was cut to the rear of his left ear, the back of his neck and his right index finger.  His evidence was that it was the appellant who did this.  The judge accepted that evidence for the purposes of sentencing, as he was entitled to.

10.  The victim was made to get on his knees and his bank cards were taken from his pocket.  The men demanded his PIN.  They said that if he did not comply, they would cut off his ear.  They took his gold wedding band from him, his watch and mobile phone.  While he was in a kneeling position, they tied his ankles and wrists behind his back, blindfolded and gagged him.  They then carried him to the cellar and locked him inside.

11.  After about three hours, when he understood he was now alone, he freed himself and began to shout for help.  He was heard and the police were called.  They arrived at the house, forced entry and found him.  He was described as distressed, dishevelled and very frightened.

12.  Checks on his bank account identified several cash withdrawals.  The police located the appellant and Garside.  They were arrested and interviewed.

13.  The appellant did not accept that it was his voice that the victim had heard.  He said that he was not present at the address on the date.  He declined to comment to numerous further questions that were put to him.

14.  He was aged 49 at the date of sentence.  He had thirteen previous convictions for 39 offences.  These included a number of convictions for shoplifting and other offences of dishonesty: theft, burglary (both dwelling and non-dwelling) and one offence each of attempted burglary with intent to steal, attempting to obtain property by deception, and using disorderly behaviour likely to cause distress.  There was nothing of the order of serious criminality involved in the two offences of which he had been convicted.  Nor was there any offence of violence.

15.  The judge did not have the advantage of a pre-sentence report.  

16.  The court did, however, have a victim personal statement in which the victim spoke of his extreme fear at the time of his ordeal and the long-term effect on his mental wellbeing.  

17.  Following the verdicts, the judge adjourned the sentencing hearing and invited the trial advocates to submit written submissions in relation to both sentencing guidelines and the issue of dangerousness.  Mr Weate, who appears today on the appellant's behalf, described this as a useful exercise.  We agree.

18.  In passing sentence, the judge noted that the appellant's last conviction was in 1998 and that he had no previous convictions for violence.  The victim was an elderly man whose wife was very unwell.  He had met Garside through an escort agency and a friendship had developed.  The appellant was in a relationship with Garside and was jealous of the victim.  He had threatened that if he continued to see her, he would be sorry, and he carried out that threat.

19.  The judge described the offences as well-planned.  It was intended that the victim should spend longer in the cellar than in fact he did.  The appellant and two other violent professional criminals who were recruited robbed and held the victim in the hope that, given that he was visiting an escort, he would not want to be associated with the shame that this entailed and therefore would be unlikely to complain.

20.  It had been a terrifying ordeal for the victim.  He said that he had been visited in the cellar twice, once by the appellant when he had made threats about stabbing him.

21.  There had been a high level of violence meted out to a man who was putting up little or no resistance.  The victim had told them his true PIN, and yet he was still subjected to violence.  The assailants had gone to a cash point and taken out £250 from each of two accounts.  The appellant and Garside both had leading roles in these offences.

22.  The judge noted that the appellant had played a full part in the planning of the offences, motivated mostly by financial gain, but also by antipathy towards the victim of whom he was jealous.  In addition, he had played a prominent role in carrying out the plan.

23.  The judge noted that all counsel had agreed that the most appropriate guidelines were those for robbery of a dwelling house.  This was a category 1A offence.  There was high culpability in that the weapon was used to threaten and then inflict violence, and there was significant force.  There were punches and the victim was cut with a knife.  There was also a high degree of harm due to the value of the goods, both sentimental and economic.  Although it had not been accepted that there was category 1 harm because of the serious psychological harm, the judge was sure that it was.

24.  The judge also noted the many aggravating features: the victim was targeted due to his vulnerability, his age and the fact that he was seeing Garside in her capacity as an escort; it was a prolonged event and there was more violence than was needed for the offence of robbery; there was concealment of identity; the offence was committed while under the influence of alcohol; there was an attempt to dispose of evidence; and the appellant had been on bail at the time and in breach of its conditions.

25.  In terms of mitigation, in the appellant's case there was none.

26.  On the issue of dangerousness, the judge said this:
In your case, Miller, I am sure there is a very significant risk of you committing further specified offences given the planning that went into this case, your behaviour during the offences and the clear lack of remorse you have shown.

I make that assessment on the evidence I have heard about these offences in this trial and I am sure there is a significant risk to members of the public of serious harm occasioned by such offences.

Whilst there was no serious physical harm in this case there is serious psychological harm and it is clear to me that such serious physical injury would have been caused had the complainant put up any significant form of resistance.

The judge then went on to pass the extended sentence.

27.  In the grounds of appeal and orally today, Mr Weate, referring back to the note for the sentencing hearing, argues that, serious as these offences were, they were committed by a 49 year old man who had no previous convictions for violence and whose previous convictions related to a period nearly two decades before these offences.  The physical injuries were relatively less serious than they might have been.  Although the fact that the appellant was in drink at the time was an aggravating factor, since his remand in custody he had engaged in detoxification courses and was motivated to address his alcohol dependency and had in the past proved himself able to comply with licence conditions.

28.  The grounds of appeal were settled before the court received two documents which have been obtained since the sentencing hearing.  The first is a prison report dated 2nd October 2017.  This indicates that the appellant had difficulties in coming to terms with his situation and had a number of adverse prison adjudications recorded against him, including being found in possession of a number of SIM cards, a mobile phone and charger, a wrap containing drugs and drug paraphernalia, being found under the influence of "spice", and testing positive for "spice" and cannabis.

29.  The appellant had had short periods of employment, but had been removed from his workplace on 7th September 2017 due to being suspected of being under the influence of synthetic drugs.  He was currently unemployed. 

30.  Since then, however, there had been positive comments regarding him helping other prisoners and complying with the prison regime.  There had been no other incidents of drug use.  He had engaged with the Drug and Alcohol Team and had completed in-cell alcohol/drug awareness packs to an accepted standard.  He had recently been seen by a doctor who prescribed him medication for depression and anxiety, and reported that he felt mentally and emotionally better.  Overall, his behaviour in custody had been acceptable.

31.  Mr Weate draws attention to the fact that the appellant is capable of staying out of trouble and informs us that he now has enhanced status, which of course we accept from him.

32.  The second document is a pre-appeal report dated 19th October 2017.  This had been ordered by the single judge when giving leave, specifically to address the issue of dangerousness.  The report described the appellant's difficulties in identifying the impact of the offences on the victim, although he said that he was sorry for him.  The appellant had attributed much of the responsibility for the offences to Garside and he maintained that he did not play an active role.  He continued to deny any part in the planning of the assault on the victim and maintained that his responsibility did not extend beyond his failure to intercede to prevent the offences.  He put his behaviour in the context of his relationship with Garside, which was first sexual and latterly took on the status of drinking companions.  

33.  He was assessed as presenting a medium risk of reconviction for offending in general and a low risk of reconviction for violent offending within two years.  It was worrying to note that after a gap of 17 years, he had appeared in court for breach of being bound over prior to being convicted of the index offences, which were two serious specified offences under Schedule 15 to the Criminal Justice Act 2003.  Factors linked to his offending (and therefore risk of harm and re-offending) included poor management of personal relationships, poor decision making, a lack of concern for the consequences of his actions, poor emotional management and alcohol consumption.  Mr Weate is entitled to say that these are matters which have since been partially addressed.

34.  The pre-sentence report referred to the appellant's antecedent history and observed that the current offences crossed the risk of serious harm threshold.  He was assessed as presenting a high risk of serious harm to known adult members of the public based on the circumstances of the index offence.  In addition to financial gain, it appeared that the victim was also targeted because of his relationship with Garside, about whom he was jealous and resentful.

35.  The psychological injury caused to the victim crossed the threshold both in terms of the dangerousness provisions and the OASys definition. On this basis, were the appellant to commit another serious specified offence, there was a significant risk of serious harm when taken in the context of the index offences.

36.  We have to say that, couched as it is with qualifications and inconsistencies, this report is less useful than it might otherwise have been.

37.  We would start by making two points.  First, the judge did not ask for a pre-sentence report before proceeding to pass the extended sentence.  Section 156 of the Criminal Justice Act 2003 requires the court to obtain and consider a pre-sentence report, unless it considers that one is not necessary in the circumstances.  If the judge considered it unnecessary, he did not explain why.

38.  Second, a finding of dangerousness should not lead automatically to the imposition of an extended sentence.  As this court made clear in R v Burinskas [2014] EWCA Crim 334 at [25] there is an intermediate position that should be considered.  This was described by Lord Thomas CJ as follows:
It should not be overlooked that section 226A(4) makes the imposition of this sentence discretionary.  As was the case under the previous regime, even where there is a finding of dangerousness, an ordinary determinate sentence is sometimes appropriate.  In two of these cases the sentencing judges expressed the view during argument (without correction) that where a finding of dangerousness had been made there were only two sentencing options: life imprisonment or an extended sentence.  Where a life sentence is not justified an extended sentence will usually, but not always, be appropriate.  The option of a determinate sentence should not be forgotten.

39.  The judge in this case did not consider the intermediate position of a lengthy determinate sentence passed on this 49 year old appellant.  In our view, he should have done so.

40.  While we fully recognise the advantages the sentencing judge had, having presided over the trial and heard the evidence, and despite the planned and inflicted deplorable level of violence, we consider that the risk of future serious harm that the appellant presents to members of the public from the commission of further serious specified offences could properly have been met by the imposition of a fifteen year determinate sentence on each count.

41.  Accordingly, we quash the sentences on counts 1 and 2, and substitute concurrent terms of fifteen years' imprisonment on each count.