R v Chaney (Shane Cornelius)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STANLEY BURNTON |
| Judgment Date | 23 January 2009 |
| Neutral Citation | [2008] EWCA Crim 3138,[2009] EWCA Crim 21 |
| Docket Number | Case No: 2008 01735 D3,No: 2008/1735/D3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 23 January 2009 |
[2008] EWCA Crim 3138
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before: Lord Justice Stanley Burnton
MR Justice Gross
MR Justice Royce
No: 2008/1735/D3
Miss K Fortescue appeared on behalf of the Appellant
Miss K Lumsdon appeared on behalf of the Crown
: For reasons which will be set out in a judgment which will be handed down in due course, the appeal against conviction is dismissed.
: This is a renewed application for leave to appeal against a sentence imposed at Winchester Crown Court, following the conviction of the applicant for theft of a shotgun. There are also counts of acquiring a shotgun without a certificate and driving while disqualified, but the effective sentence was one of 6 years' imprisonment for the theft of the shotgun. It is submitted that it is at least arguable that that sentence was manifestly excessive, having regard to the relatively low value of the shotgun and having regard to the authority which has been brought to our attention, namely the case of Evans.
This case differs significantly from Evans. The applicant in this case was responsible for putting into circulation a deadly firearm. We regard that offence as much more serious than the theft of an item of very considerable value. He did not have the advantage of a plea of guilty and he has a very bad record indeed.
In agreement with the single judge who considered this case on the papers, in our judgment this sentence was fully merited and the application is therefore refused.
Thank you very much. Thank you, Miss Lumsdon.
[2009] EWCA Crim 21
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WINCHESTER CROWN COURT
His Honour Judge Hooton
Lord Justice Burnton
Mr Justice Gross and
Mr Justice Royce
Case No: 2008 01735 D3
Kate Fortescue for the Appellant
Kate Lumsdon (instructed by the CPS) for the Respondent
Hearing date: 10 December 2008
Lord Justice Stanley Burnton:
Introduction
On 7 March 2008 at the Crown Court at Winchester before HH J Hooton and a jury, the Appellant was convicted of theft of a shotgun (count 1), acquiring a shotgun without a certificate (count 2) and driving whilst disqualified. On the same day he was sentenced to 6 years' imprisonment on count 1. Concurrent sentences were imposed on counts 2 and 3, and a disqualification from driving was imposed on count 3. He appealed against conviction by leave of the single judge. Having heard the submissions of counsel, we stated that the appeal would be dismissed for reasons we would set out in our written judgment.
This is the judgment of the Court on the appeal.
The facts
On 28 October 2006 a man walked into Chaplin's gun shop in Winchester. He was seen by two witnesses, Mr Yates and Mr Fyffe, who were in the shop. He appeared to be walking normally. He went straight down the stairs to the lower floor. About two minutes later, he came back up the stairs. The witnesses noticed that he appeared to be limping, not bending one of his legs. He walked out of the shop and turned right.
In fact, the cabinet in which shotguns were kept on the lower floor had been left open by one of the shop's employees, Mr Saunders. When Mr Yates and Mr Fyffe went downstairs, they noticed that the gun cabinet was open and that there was an empty space for a gun. They reported the matter to the shop staff, and were able to give a description of the man they had seen.
It was not in dispute that the shotgun had been stolen from Chaplin's by the man seen by Messrs Yates and Fyffe.
Down the street in the direction taken by the man seen by Messrs Yates and Fyffe is the car park of the Hotel du Vin. It was monitored by CCTV. The recording of the CCTV video images taken in the period following the taking of the shotgun from Chaplin's was recovered by the Police. It was shown in Court at the trial and on the hearing of this appeal. It shows, at 12.15, shortly after the theft of the shotgun, a man appearing from the direction of Chaplin's, walking stiffly. He goes over to what appears to be an enclosure or shed, in fact a wood store, with a black door to the left of the car park (looking towards its entrance). He lifts something up and puts it behind the door. It is long, thin and black, and could well be a shotgun. He leaves the car park. Shortly afterwards, at 12.41, what appears to be the same man reappears and looks around the car park, goes to the wood store and again leaves. At 12.44 a white car drives to the entrance of the car park and stops there. The driver gets out and goes straight over to the black door. He looks like the man seen in the previous extracts from the CCTV recording. He is seen to remove something from behind the door and to put it in the car. He re-enters the car and drives off. The car is the same colour, make and model as the Appellant's and has the same registration number. The prosecution case was that the CCTV recording to which we have referred showed the same person, that he was the thief, and that he was the Appellant.
The Appellant was known to DC Elspass-Collins by reason of an unrelated matter. He had interviewed him and dealt with him for several hours on 24 October 2006. The Appellant had been photographed. On 31 October the Appellant was photographed again in connection with the same matter. On that day he saw him for ten to fifteen minutes.
Following the theft of the shotgun, on 19 November 2006 DC Elspass-Collins received an email from PC Cawkill with still images from the CCTV attached. PC Cawkill stated:
“I've attached some stills of our offence … which officers in Kent also believe to be Chaney. The stills are not clear, but I would be interested in your thoughts.”
DC Elspass-Collins sent an email in reply stating:
“I've looked at the CCTV you've sent, and I can identify Chaney for you, and will complete a statement.”
At around the same time he learned from PC Cawkill that the registration of the car in the still images had been checked and was registered to the Appellant. DC Elspass-Collins did not in fact make a statement until 4 January 2007.
The Appellant's car was discovered by police officers parked outside his flat. It was impounded. In it were found court documents in the name of the Appellant. On 23 November 2006 officers conducted a search of the Appellant's home address and seized a cap and steel toe-capped trainers. The shotgun was not found, and has never been recovered.
In interview the Appellant said that on 28 October 2006 he probably would have been at home and would have done housework and some shopping. That was his usual habit on a Saturday. He had never been to Winchester or the Hotel du Vin in his life. He owned a white Citroen car. It had been parked outside his flat in Kent. He did not lend the car to anyone, and no one else had keys to it as far as he knew. He did not know the registration number. He had not driven the car and no one had his permission to do so. He was disqualified but he was planning to retake the driving test. He did not accept the car in the still CCTV images was his. His car looked much older. He denied being the man in the still images. He did not recognise him and said that the man in the images looked older.
The evidence at the trial
It was not in issue that the man seen in the CCTV was the thief of the shotgun. The only issue therefore was whether he was the Appellant. In other words, the issue was whether he was correctly identified as the thief.
The evidence of Messrs Yates and Fyffe was read. They had not participated in an identity parade, and had not therefore identified the Appellant. Mr Saunders, the assistant at Chaplin's to whom they had reported their suspicions, confirmed that a shotgun was found to be missing from its cabinet when they spoke to him. He had not observed the man who was the subject of their suspicion.
On behalf of the Appellant, objection was taken to the admission of the evidence of his identification by DC Elspass-Collins. The judge ruled against the objection.
DC Elspass-Collins gave evidence of his knowledge of the Appellant's appearance, derived from his having met him as described above, and of his identification of the Appellant as the man shown in the CCTV stills sent to him by PC Cawkill. Their exchange of e-mails was before the jury. DC Elspass-Collins said he could not remember whether the still images were black and white or colour. The jacket the Appellant was wearing in the still images was “the same if not similar” to the one he had been wearing on 24 October 2006. The hairline, facial features and stature of the man in the stills were the Appellant's. The shoes also looked like the Appellant's. He was of the view that the shoes and cap were the same as those the Appellant wore on 24 October, and similar to those worn by the thief in the still CCTV images.
PC Elaine Cawkill gave evidence that the Appellant was interviewed on 19 December 2006. He agreed to take part in an identification procedure and so she took steps to arrange one. However in January 2007 the Appellant was admitted to hospital for psychiatric treatment. On...
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