Reference by Attorney General Under S.36 of the Criminal Justice Act 1988 and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Treacy |
| Judgment Date | 03 December 2014 |
| Neutral Citation | [2014] EWCA Crim 2713 |
| Docket Number | No: 201404696/A2-201404698/A2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 03 December 2014 |
[2014] EWCA Crim 2713
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Treacy
Mr Justice Popplewell
Mr Justice Edis
No: 201404696/A2-201404698/A2
Miss J Ledward appeared on behalf of the Attorney General
Mr S Minihan appeared on behalf of the Offender Atkins
Mr J Martin appeared on behalf of the Offender Gibney
These are applications by Her Majesty's Attorney-General for leave to refer sentences as duly lenient. We grant leave.
Both offenders faced five counts in common on the indictment at the Central Criminal Court. Count 2 was conspiracy to kidnap, count 3 was false imprisonment, counts 4 and 5 and 6 were conspiracies to blackmail. In addition, Atkins alone had faced count 1, assault occasioning actual bodily harm. Atkins pleaded guilty to all six matters. His pleas to counts 5 and 6 were entered 3 weeks before trial at a PCMH. His pleas to counts 1 to 4 were entered on the day of trial. Gibney was convicted of counts 2 to 6 after a trial.
Both men were sentenced on 10th September 2014. Atkins received 3 years 9 months' imprisonment on counts 2 to 6 to run concurrently. In relation to count 1, he was given a further concurrent sentence of 9 months. Gibney was sentenced to 5 years' imprisonment to run concurrently on each count.
We can summarise the facts as follows. The background shows that the victim owed money to Atkins on whose behalf he had been selling drugs. Atkins had been pursuing the debt by way of a series of messages over several days but the victim had avoided him or fobbed him off. On 13th February 2014, having discovered the victim's whereabouts, Atkins approached him in the street and told him to get into his van. The victim complied. Atkins then began shouting at him and struck him to the shoulder and head area with a hammer causing a cut to his forehead. The victim handed over £700 and then broke free, running down the street. He took refuge in a pharmacy where CCTV shows him hiding behind shelves. Atkins followed him to the area of the shop. In the meantime staff called the police. When they arrived the victim declined medical assistance and gave a false account in describing the attack. These events are covered by count 1.
We move to counts 2 to 6. The police took the victim to a fast food restaurant and left him there with a friend. That friend, who had been providing information about the victim's whereabouts to Atkins, alerted him. Shortly afterwards both offenders arrived at the restaurant and confronted the victim outside. They took or escorted him away with them in determined fashion. He was immediately subjected to threats by Atkins. These involved threats to kill or having his face slashed. In the hours that followed the victim was kept under the control of the two offenders. Atkins was the more aggressive, repeatedly demanding that the victim repay money owed to him. The sum owed was £1500 but an additional £1100 was demanded as interest. Gibney was there as an enforcer, to see that the debt was settled. He told the victim that unless the money was obtained by later that day he would be left alone with Atkins. He played a less aggressive role than Atkins, pretending to act as a restraining influence but in reality was a party to the offences.
The victim felt compelled to remain with the offenders because of further threats which were made to him. The party drove to various locations in East London, including public houses, over a period of about 10 hours, during which the victim had very real concerns for his safety. Repeated phone calls were made to the victim's father and brother demanding payment and making threats as to what would happen to the victim if no payment was made. They took the threats very seriously and a least one of them could hear that the victim was upset and distressed. The father called the police despite the victim's brother seeking to dissuade him as he feared his brother would be killed.
The family and the offenders made arrangements for an exchange with payment of money. Later that evening the victim was abandoned in the car park where the exchange was to take place, the offenders having apparently become suspicious that the police were involved. They were arrested a short time later.
Both offenders have relevant criminal records. Atkins, who was 31, was convicted in 2005 of possession of cocaine with intent to supply. He was sentenced to six-and-a-half years. In September 2012 he received 30 months for three counts of possession of Class A drugs, (including Ecstasy), with intent to supply. He was on licence for those matters at the time of these offences.
Gibney, who is 41, has a very extensive criminal record. Between 1985 and 2013 he has on some 47 occasions been convicted of 125 offences. There are a number of offences of violence or disruptions to public order recorded. In September 2013 he received 8 months' imprisonment for battery and harassment.
Perhaps of greater significance is the fact that in 2004 Gibney was convicted of an offence of false imprisonment. He was involved in the detention of a man who had been abducted and kept bound and gagged overnight in the rear of a van until he was rescued by police. That victim's family had received a series of calls demanding up to £500,000 for his safe release. For this offence Gibney was sentenced to 7 years.
We find the following aggravating features to be common to both offenders: more than one offender was involved; the offences were pre-planned and persistent in execution; the kidnapping and detention and demands by way of blackmail took place after Atkins had violently attacked the victim. Gibney could see the results of this. Repeated threats of extreme violence were made to the victim and his family with resultant fear and distress. The offending arose out of unlawful drug dealing and the detention was prolonged.
In Atkins's case he was the organiser; he had previously been convicted of serious offences and he was on licence at the time. In Gibney's case, he has a very poor criminal record and...
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