No: 200806065 A8 
Neutral Citation Number: [2010] EWCA Crim 246
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Wednesday, 27 January 2010

B e f o r e:

LORD JUSTICE MAURICE KAY
MRS JUSTICE SHARP DBE 
SIR CHRISTOPHER HOLLAND
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R E G I N A 

v 

NICHOLAS SMITH

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MR J ROUSE appeared on behalf of the Appellant
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J U D G M E N T
1.	LORD JUSTICE MAURICE KAY:  On 2 September 2008, in the Crown Court at Harrow, this appellant pleaded guilty on re‑arraignment to a number of offences, for which he was sentenced on 10 October 2008.  The offences were eight offences of robbery and eight offences of possession of a firearm when committing a schedule 1 offence.  He was sentenced to imprisonment for public protection with a minimum period of 6 years for each offence, those sentences to be served concurrently.  He now appeals against sentence by leave of the single judge.   
2.	It is not necessary for us to say much about the offences themselves.  There had been a large number of armed robberies of bookmakers premises between 4 March 2006 and 28 May 2007.  The appellant was linked to the offences by images captured on CCTV in some of the premises and also by descriptions given by staff.  The robberies were all carried out in a similar manner; the appellant would go into the premises, produce an imitation handgun and demand money.  He would then place the money in a plastic carrier bag and leave the shop, having told the staff to go into a back room.  The robberies all occurred at the beginning or end of a working day when the staff were either opening or closing the premises and few, if any, customers were around.  The appellant attempted to conceal his identity by wearing a disguise comprising of a hat, sunglasses and a scarf.  In the eight armed robberies, he stole a total of £13,000.  
3.	He was arrested on 10 January 2008.  He denied involvement and said that he did not wish to be interviewed.  
4.	So far as the robberies were concerned, when sentencing him the judge said:
"What you did was to select premises where you expected large sums of money to be kept.  You were armed with an imitation firearm and disguise, and you threatened members of staff with that imitation firearm.  I have no doubt at all that on each occasion those threatened were terrified, and it was for this reason that you managed to rob the victims of a total of £13,000, none of which has been recovered.  
There are a number of aggravating features; there was pre‑planning, the disguise, the targeting of large sums, and of course the fact that the victims are vulnerable for that very reason.  
You have a dreadful record ... I agree with the conclusion expressed in the pre‑sentence report that you are a career criminal.  You present, without any doubt, a significant risk to the public of serious personal injury caused by your committing further specified offences".
5.	It is necessary to say little bit more about the "dreadful record".  The appellant is now 59.  His offending began in 1963 and rapidly graduated to matters of house‑breaking and burglary.  However, the real concern relates to his history since 1975.  On 21 November 1975, for offences of robbery, conspiracy to rob and wounding with intent, he was sentenced to 10 years' imprisonment; on 29 September 1982, for offences of conspiracy to rob and having an imitation firearm with intent to commit an indictable offence, he was sentenced to 12 years' imprisonment; on 28 October 1994, for offences of robbery and carrying a firearm with intent to commit an indictable offence (there were three robberies in all) he was sentenced to a total of 9 years' imprisonment; on 24 January 2000, for an offence of attempted robbery and having a firearm with intent to commit an indictable offence, he was sentenced to imprisonment for life.  That was a mandatory sentence in view of his history.  We are told that the minimum term was set at 4 years.  He was released from that sentence on 25 September 2004.
6.	On behalf of the appellant, Mr Rouse makes two submissions.  First, he submits that the sentence of imprisonment for public protection was wrong in principle; secondly, he submits that, in any event, the minimum term of 6 years, extrapolated from a putative sentence of 12 years, was manifestly excessive.  We deal first with the submission that the sentence is wrong in principle.  Essentially, Mr Rouse's submission is that it was wrong in principle to impose a sentence of imprisonment for public protection because, at the time when the sentence was imposed, the appellant had been recalled to prison under his life sentence.  He will now remain in prison pursuant to that sentence until, under section 28(6) of the Crime and Sentences Act 1997, the Parole Board is satisfied that it is no longer necessary for the protection of the public that he be confined.  The submission is that, whatever sentence had been imposed on 10 October 2008 in the Crown Court at Harrow, future public protection is already underwritten by the life sentence, in circumstances where the test applied by the Parole Board is more difficult to satisfy than the test of dangerousness under section 229 of the Criminal Justice Act 2003.  Mr Rouse also refers to what may be described as practical difficulties.  He submits that the two sentences have had, and will have, the effect of applications for release being processed and considered by two constitutions of the Parole Board.  It is proving to be impossible to plan the appellant's sentence properly.  In all these circumstances, he submits that the judge should simply have passed the appropriate determinate sentence in the Harrow Crown Court.  There could be no application for release by reference to that until the half way point had been reached, and this would have sufficed and would have had the administrative simplicity of only one indeterminate sentence being in play.
7.	We do not accept those submissions.  The sentence for public protection, imposed under the dangerousness provisions of the Criminal Justice Act 2003, was imposed by the judge in the exercise of the express discretion conferred upon him by the statute.  The statute is expressed in terms of a discretion stating that the court "may" impose a sentence of imprisonment for public protection if the relevant conditions are satisfied.  There is, of course, no dispute in the present case that the relevant criteria of dangerousness ‑‑ that is a significant risk to members of the public of serious harm occasioned by the commission of further specified offences ‑‑ is plainly satisfied.
8.	The discretion conferred by the statute was not expressly constrained in a case such as this where there is an existing indeterminate sentence.  It was for the judge to decide upon the punishment for the these robberies and associated firearms offences, having regard to the provisions of the 2003 Act.  Moreover, there is nothing anomalous or unusual about two indeterminate sentences being imposed on different occasions, or even in different forms.  Section 34 of the Crime and Sentences Act 1997 expressly addresses the position of a life prisoner, which expression means, "a person serving one or more life sentences".  For this purpose, "life sentence" is defined in section 34(2) as embracing both a sentence of imprisonment for life and a sentence of imprisonment for public protection.  Section 34(4) then provides: 
"Where a person has been sentenced to one or more life sentences and to one or more terms of imprisonment, nothing in this chapter shall require the Secretary of State to release the person in respect of any of the life sentences, unless and until the Secretary of State is required to release him in respect of each of the terms".  
9.	It seems to us that that is a statutory provision designed to ensure that, where more than one indeterminate sentence exists, release is not required until the last of the minimum terms has been completed.
10.	We also consider the implications of section 28(7) of the Crime and Sentences Act 1997.  Essentially, a life prisoner may require the Secretary of State to refer his case to the Parole Board at any time, but where there has been previous reference, that is modified by a requirement that there must be a period of two years, beginning with the disposal of the earlier reference, before a later application.  That means that, in principle, under the current life sentence, this appellant would be free to make periodic applications every two years.  However, the effect of the imprisonment for public protection with the minimum period of six years, is that, for all practical purposes, he will not be able to make that application until six years have elapsed, because any further application by reference to the life sentence would be doomed to fail for the reasons we have given.  
11.	Mr Rouse submits that the same could be achieved by passing a determinate sentence and superimposing that on the life sentence without an indeterminate sentence of imprisonment for public protection.  Whilst that is true in one sense, it does not address the task of the sentencing judge when devising the appropriate sentence for the offences that were before him.  Nor would it contain within its terms the finding of the sentencing judge on the most recent occasion, that the appellant does in fact satisfy the dangerousness provisions of the 2003 Act as at 10 October 2008.  For all these reasons, we reject the submission that it was wrong in principle for the judge to pass the sentence of imprisonment for public protection.
12.	As to the second submission, that the minimum term of 6 years was manifestly excessive, we find ourselves unable to agree; it relates to a putative sentence of 12 years' imprisonment.  The appellant pleaded guilty on re‑arraignment, and it is apparent from his sentencing remarks that the judge was not giving him full credit for the plea of guilty because he referred at one point to, "the fact that you pleaded guilty, taking into account the stage at which you did so".  Accordingly, it seems to us that the starting point after a trial was not as high as 18 years, the figure originally identified by Mr Rouse.  His submissions then rely heavily on the Sentencing Guidelines Counsel's Definitive Guideline on robbery.  He emphasises that the weapon on this occasion was an imitation firearm and it was made of plastic.  He submits that, applying the SGC's categories, this was a level 2 series of robberies.
13.	The first point to notice about the Sentencing Guidelines Council's Guidelines is that the starting points are based upon a first time offender.  This appellant, far from being a first time offender, is a multi‑convicted armed robber who has received several very long sentences for his nefarious activities.  The judge identified aggravating features; in our judgment they were all correctly identified, and the matter was intensely aggravated by this appellant's "dreadful record".  In our judgment, it simply cannot be said that the putative sentence of 12 years, following a late of plea of guilty for eight offences, was manifestly excessive.  Indeed, when Mr Rouse responded to our request that he identify the sentence which he says would not be manifestly excessive, he said "10 years".  
14.	We are in no doubt that the putative sentence of 12 years was a permissible sentence and cannot in any sense be described as manifestly excessive.  Accordingly, this appeal against sentence is dismissed.  
15.	Thank you very much, Mr Rouse.
16.	MR ROUSE:  My Lords, I am grateful.  I make an oral application, pursuant to section 74(2) of the Criminal Procedure Rules for leave.  I respectfully submit that the court should certify a point of general public importance, namely whether or not an imprisonment for public protection sentence should be imposed, or could be imposed on a defendant serving a life sentence.
17.	LORD JUSTICE MAURICE KAY:  Well, you will have to draft a question first.
18.	MR ROUSE:  I will my Lords, and I could of course, as I understand it, do this within 14 days of your Lordships giving a ruling but I think, out of courtesy, I should raise it with your Lordships this morning.  
19.	LORD JUSTICE MAURICE KAY:  Yes.  Well, Mr Rouse, if you would like to submit a question, we will give consideration to it.  Could you do that within the next 7 days. 
20.	MR ROUSE:  I will.  Thank you.
21.	LORD JUSTICE MAURICE KAY:  Thank you very much.