Attorney General's Reference (No. 2 of 1989)
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 16 October 1989 |
| Neutral Citation | [1989] EWCA Crim J1016-6,[1989] EWCA Crim J1016-20,[1989] EWCA Crim J1016-21,[1989] EWCA Crim J1016-16 |
| Judgment citation (vLex) | [1989] EWCA Crim J1016-19 |
| Docket Number | No. 3657/R/89 |
| Court | Court of Appeal (Criminal Division) |
| Date | 16 October 1989 |
[1989] EWCA Crim J1016-16
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Lord Chief Justice of England (Lord Lane)
Mr. Justice Tucker
and
Mr. Justice Pill
No. 3657/R/89
MR. J. BEVAN appeared on behalf of the Attorney General.
MR. P. SUTTON appeared on behalf of the Respondent (Defendant).
This is a reference under section 36 of the Criminal Justice Act 1988, an application by Her Majesty's Attorney General for leave to refer a sentence which he regards as unduly lenient. We grant his application and accordingly proceed to consider whether the sentence was indeed unduly lenient as is submitted.
The facts of the case are these. On 2nd June this year at Snaresbrook Crown Court, the offender, Darren Mark Major, was sentenced to three years' imprisonment for an offence of robbery (count 1) and possession of a firearm with intent to commit an indictable offence (count 4). Those sentences were ordered to run concurrently, the total being therefore one of three years' imprisonment. The plea was guilty, but he pleaded not guilty to two other offences. Those were possession of a firearm with intent to endanger life (count 2) and wounding with intent under section 18 of the Offences against the Person Act 1861 (count 3). Those counts were left on the file. The reason for the pleas of guilty and the reason for the two pleas of not guilty will emerge in a moment.
The facts of the offence were these. The incident happened at about 5.30 on the evening of Saturday 27th February 1988. Two men, this offender and a man called Patrick Carr, robbed a betting shop in East London. Carr was carrying a sawn-off shotgun which in fact was loaded, though unknown to this offender. Carr also had a hood partially concealing his head.
The role played by this offender, Major, was to stand at the door with his arms outstretched, in order to prevent anyone from coming in or getting out of the betting shop. According to his own account given to the police at a later stage, the offender was carrying a stick, which he did not in fact use.
The manager of the betting shop was threatened by Carr with the gun in order that he might be persuaded to hand over the takings, which of course on a Saturday would probably be the best takings of the week. Mr. Wright courageously declined that invitation, whereupon the shotgun was discharged at his leg and he suffered considerable injury. He was hit on the head with the butt of the shotgun. Mr. Wright did not hand over either the money or the keys to the safe and the robbers then took a total of some £207 and left the betting shop.
According to Mr. Wright, Major, the offender, standing at the door, said, "Shoot him", before in fact the gun was fired by Carr. But another employee in the shop, Mr. Fowler, made no mention of anyone other than the man holding the gun, and certainly did not hear anyone saying "Shoot him".
Before they left the premises, the two men ripped some wires out from the shop, thinking they were telephone wires: in fact they were not.
Mr. Wright's leg required considerable surgical interference, and he was off work for a long time.
For some considerable time the identity of the offenders remained undiscovered. But Carr was at a later stage, in December 1988, involved in a burglary. During the course of that burglary Carr was stabbed. As a result of his injuries he died.
There had been a large reward, some £15,000, offered to assist in the detection and apprehension of the offenders in this case. After Carr's death those who were involved with Carr saw no further reason for keeping quiet about the matter. The long and short of the situation was that two women came forward to the police with the information that Major had confessed to them that he, Major, had been involved in this betting shop robbery.
Major was interviewed at length by the police for some considerable time. He denied any complicity in the event. But eventually he decided to confess to the police. What he said in answer to questions was this: "… my part of the robbery was that I was on the door at the time of the robbery and didn't participate in any other action which led to the victim being shot." "Where did you get your information from?" asked the police. "We never had no information, we had looked at it the day before and decided we would do it the next day." "Where did the gun come from?" he was asked, and he replied, "Pat had it and I don't know where it come from. Q. Was it kept at Gouldman House? A. No, the day of the robbery Pat went and picked it up from somewhere, I don't know where…. Patrick was a junkie. I never told him to do that [the shooting], when he shot the guy and I saw his leg splattered all over the wall I turned white, I didn't want him to do it and I am not saying that because he is dead……..I don't know why he shot him, he first of all had the gun pointed at his head and nodded at me, I went no, and then he lowered the gun and shot him. Q. After he shot him he clubbed him round the head with the gun? A. Yea, he did." A little later he said, as I have already indicated, "I had a stick but I never used it."
So the basis of the offender's plea to the two counts to which he did plead guilty, was this, that he knew that a gun was being carried, that he did not know that the gun was loaded, and he did not incite or order or suggest to Carr that Carr should use the gun. Those were the bases of his plea.
The learned Judge in passing sentence said this: "….you have pleaded guilty to this indictment, to two very serious offences indeed: in count 1 robbery and in count 4 possession of a firearm with intent to commit an indictable offence. You know with your record as well as I do that such offences are looked upon as very serious matters and inevitably attract a long term of imprisonment. You know that."
After further other remarks, in the final paragraph the Judge said this: "Finally, I accept entirely what your counsel has said on your behalf, and in my view this case is wholly exceptional and I will be able to deal with you on a lenient basis."
This Court was unable to understand on what basis it was that this case was described as "wholly exceptional". We gather that Mr. Sutton, whose helpful submissions to this Court we have listened to with attention, was under the same sort of difficulty. The only two reasons which he could think of as to why this could be described as a wholly exceptional case were first of all that the offender was arrested as a result really of the reward that had been offered for the detection of these criminals after the death of Carr, which seems to us to be an irrelevant consideration, and secondly, the light criminal record of the defendant and the fact that events in the upshot went beyond what Major had anticipated when they entered the betting shop. Neither of those matters can properly be described as wholly excetional.
Mr. Bevan on behalf of the Attorney General has drawn our attention to a number of authorities on the subject of sentencing for this type of offence and it is necessary very briefly to look at one or two of those.
The starting point, as always, in cases of this sort is the decision in the case of Turner (1975) 61 Cr. App.R. 67. It is at page 91 that the material passage is to be found, and it reads as follows:
"We have come to the conclusion that the normal sentence for anyone taking part in a bank robbery or in the hold-up of a security or a Post Office van, should be 15 years if firearms were carried and no serious injury done. It follows therefore that the starting point for considering all these cases is a sentence of 15 years. As was pointed out in argument, the fact that a man has not much of a criminal record, if any at all, is not a powerful factor to be taken into consideration when the court is dealing with cases of this gravity. In this case, all those who took part in the bank robberies, in the sense of going into the banks carrying firearms or other weapons, had criminal records. Some had bad criminal records and others not so bad. We have decided that in dealing with those for whom a sentence of 15 years' imprisonment for one bank robbery is appropriate, the length and type of record is of little assistance."
That case of course was dealing with robberies which were very far removed in gravity from the present case. These were planned, multi-handed bank robberies of a much graver character than the case with which we are dealing.
We were also referred to the case of Smith (1981) 3 Cr. App. R. (S) 168. A passage at page 170 reads as follows:
"So here is one of those cases which in these days require condign punishment. The only protection which our courts can give to small shopkeepers such as these who are victims of armed robberey and where firearms are used to threaten, is to pass swingeing sentences on those who are found guilty of such a grave offence. Mr. Vandin has urged upon this Court, with considerable skill and moderation, that the sentence of 12 years' imprisonment in this case was excessive. From the point of view of the victim, it is the view of this Court that no such sentence could conceivably be said to be excessive."
In the case of Gould (1983) 5 Cr. App. R. (S) 72 there is this passage at page 75:
"It is quite plain that a deterrent element is necessary in sentencing for this type of offence. The guidelines as laid down in Turner (1975) 61 Cr. App. R. 67…… remain the basis for sentencing in armed robbery offences. Turner set out the...
To continue reading
Request your trial
- Attorney General's Reference (No. 3 of 1990)
- Attorney General's Reference (Nos. 3, 4, 8, 9, 10, 11 and 16 of 1990); Dickson (Robert) and Others
-
Attorney General's Reference (No. 37 of 2004); Dawson (James Anthony)
...referred to, which essentially starts with the decision of this court in Attorney General's Reference No 2 of 1989 (Darren Major) (1989) 11 Cr.App.R (S) 481 in which this court indicated that a sentence of substantial length had to be imposed particularly where a firearm was involved, as i......
-
Attorney General's Reference (No. 135 of 2002); Gray (Robert Terry)
...authorities that have been drawn to our attention. He also specifically drew to our attention the case of Attorney-General's Reference No 2 of 1989 (R v Darren Mark Major) 11 Cr App R (S) 481. That was a case in which a shotgun was fired at the manager of a betting shop in the course of a r......