Neutral Citation No. [2012] NICA 34	

	Ref:     	MOR8589	
			
Judgment: approved by the Court for handing down	Delivered:	20/09/12	
(subject to editorial corrections)*			

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
________
R
-v-
ROBERT PATRICK SHANNON
And
MICHAEL ANDREW NOLAN
 _________
DIRECTOR OF PUBLIC PROSECUTION’S REFERENCES
(NUMBERS 3 AND 4 of 2011)
________
Before: Morgan LCJ, Higgins LJ and McCloskey J
_________
MORGAN LCJ 
[1]	These references arise as a result of sentences imposed by Her Honour Judge Kennedy on 25 November 2011. The offender Shannon pleaded guilty to two offences of robbery for which he received concurrent sentences of seven years imprisonment and one count of carrying a firearm with criminal intent which resulted in a concurrent sentence of five years imprisonment. The offender Nolan was sentenced to concurrent terms of nine years in relation to three robbery counts, concurrent sentences of seven years and six years in relation to two further robbery counts, a term of six years concurrent in relation to an attempted robbery count and a concurrent term of five years for carrying a firearm with criminal intent. The effective total sentences were, therefore, seven years and nine years imprisonment respectively. The Director of Public Prosecutions submits that the sentences are unduly lenient and should be increased.

The History of the Proceedings

[2] 	The offences were charged in four separate indictments which the learned trial judge dealt with on 25 November 2011. Nolan appeared at Belfast Crown Court on 20 May 2009 and pleaded not guilty to the charges against him. Shannon appeared at Belfast Crown Court on 10 February 2010 and on arraignment pleaded not guilty to all counts against him. These bills of indictment were then joined and became the first of the indictments with which the court was concerned.  Each offender was arraigned on the new bill of indictment and pleaded not guilty on 28 April 2010. On 23 September 2011 Shannon was re-arraigned on this Bill and pleaded guilty to two counts of robbery and one count of carrying a firearm with criminal intent. Nolan was also re-arraigned and pleaded guilty to three counts of robbery and one count of carrying a firearm with criminal intent. Each also pleaded to other counts which are not material to this reference and the remaining counts on that indictment were left on the books of the court.

[3] 	The second indictment related to Nolan only. On 13 October 2009 at Downpatrick Crown Court he pleaded not guilty to all counts. He was re-arraigned on 11 October 2010 and pleaded guilty to one count of robbery, two counts of possession of offensive weapons, a metal bar and a hatchet, and one count of attempted robbery. The third indictment was again at Belfast Crown Court.  Nolan pleaded not guilty to one count of robbery and one count of possession of an offensive weapon, a hammer, on 14 June 2010. On 3 March 2011 he was re-arraigned and pleaded guilty to both counts. The fourth indictment also related to Nolan only. At arraignment on 20 January 2011 he pleaded not guilty to all counts but on 31 March 2011 he was re-arraigned and pleaded guilty to one count of robbery and one count of possession of an offensive weapon, a wheel brace.

Background to the offences

[4] 	On 1 January 2008 Mr Green, who had advertised the sale of his Vauxhall Vectra car, received a number of telephone calls from a male who stated that he was interested in seeing the car. He agreed to meet Mr Green at a private address which he said was that of a relative. Two men were there one of whom got into the car and drove it away. Mr Green followed the other man to a Maxol garage on the Antrim Road before telephoning police. On 5 January 2008 Mr Rowntree drove a Brinks van to the premises of Iceland, York Road, Belfast at about 11:10 am. As he walked out of the premises carrying a cash box two males approached him. He was told to set the cash box down and a handgun was produced by one of the men. When Mr Rowntree held onto the box, the gun was put to his face forcing him to release it. The men ran off with the cash box to Mr Green's Vauxhall Vectra car.

[5] 	The robbery was witnessed by Mr Gordon, an employee of RMS Risk Management Solutions, which is used by cash in transit companies to provide escort and CCTV Services. He described the gun as a 9 mm Browning pistol. He pursued the two men as they ran off. As he approached them the unarmed man shouted to the man with the gun to shoot Mr Gordon. The gunman turned and pointed the gun at Mr Gordon. As the men got into the getaway car Mr Gordon pulled open the driver’s door and sprayed the driver with yellow dye. He did the same to the gunman who was in the passenger seat and who twice pulled the trigger of the gun. It failed to discharge. Mr Gordon thought by its appearance that it was a deactivated weapon. The gunman struck Mr Gordon on the face with the butt of the gun. Mr Gordon’s display of selfless courage and employee loyalty was exemplary.

[6] 	The men drove off in the car which was found abandoned a short distance away. An attempt had been made to set it alight. A short distance from the car was found a black bin bag containing items of clothing similar to clothing worn by the robbers. DNA on a coat matched Nolan and that on a hat matched Shannon. Police officers identified Nolan on CCTV images. Nolan was the driver of the car and Shannon had the gun.

[7] 	At about 2:45 pm on 12 June 2008 Mr Tosh, an employee of Group 4 Securicor, was delivering cash to an ATM at Abbey Centre, Newtownabbey. He was attacked by one man who attempted to remove the cash box from him. This man, who was Shannon, punched at his head and face. Mr Tosh knew that the cash box was empty so released it. The man ran off with the box. CCTV footage showed this man and another, Nolan, run into a car park and make off in a white Volkswagen Golf car which was found abandoned about 10 minutes later in a nearby estate. Shannon was identified from CCTV footage and DNA on a hat found in the Volkswagen Golf matched Shannon.

[8] 	The remaining matters concerned Nolan only. At about 7 pm on 2 July 2008 two employees of G4S were delivering cash to an ATM at a Maxol filling station at Saintfield Road, Carryduff. As one employee was taking a cash box to the machine he was grabbed from behind by a male who jabbed a knife at his stomach a number of times before striking the injured party on the left arm with the flat of the blade. The male took the cash box and ran to a black BMW car which another male was driving. The car sped off and was later found abandoned in Carryduff. Among items recovered from the car was a soft drinks bottle which had DNA on it which matched that of Nolan.

[9] 	At about 8:30 pm on Friday 4 May 2007 the female injured party was working in the Lidl store at Meetinghouse Street, Ballymoney. She saw two male strangers in the shop. Shortly thereafter she heard shouting and was grabbed around the back of the neck by a man and was pushed towards the till by a man holding a metal bar. She was aware that there was another man also present. As they were demanding that she open the till she recognised both as the strangers whom she had seen earlier. The man with a metal bar banged the counter and threatened to hurt her. She opened the till and the men took most of the notes amounting to £1200 and debit stubs for Switch and Solo cards. They made their escape in a black Passat car.

[10] 	Around 4:40 pm on Sunday, 6 May 2007 two men entered the Homebase store at Forestside Belfast. One of the men, Nolan, was armed with a hatchet and the other with a hammer. They threatened staff and demanded that the tills be opened. Nolan banged the hatchet on the counter and then went into the area behind the tills where a member of staff was standing. She opened the till and filled a plastic bag with cash. The two men made good their escape in a green Skoda car.

[11] 	About 20 minutes later Mr Stewart was working at JJB Sports on Boucher Road Belfast. He was beginning to count the cash takings. He heard a bang and when he turned round he saw a male standing facing the tills armed with a hammer. The male shouted "UVF, looking protection money" and struck the counter leaving a mark. At the same time Mr Stewart heard a crashing noise coming from the golf equipment area. He opened the till and handed over money from two tills. The male shouted for the safe to be opened but Mr Stewart told him that he did not have the keys. The two men made off in a green Skoda car.

[12] 	At 7:30 pm on 3 August 2010 the injured party was working at a Lidl store in Magherafelt. As he opened the till to give change to a customer, Nolan, who had been standing in the area, punched the injured party twice and pushed him away from the till. The injured party tried to push Nolan away but was unable to stop him from stealing approximately £200. Nolan threatened to stab the injured party and then ran off pursued by the injured party. He produced a wheel base and threatened the injured party. Nolan then attempted to escape in a Honda vehicle but police brought the vehicle to a halt after a car chase of some 40 minutes duration.

The Pre-Sentence Reports

[13]	 Shannon is 40 years old and has an extensive criminal record dating back to 1987 with 138 convictions including two robberies, three thefts, a burglary and a firearms offence. In 2004 he received a custodial sentence of seven years for attempted robbery and another of eight years custody and 12 months probation for a cash in transit robbery. He committed the first of these offences within three weeks of being released from prison and was, therefore, on licence. He has an extensive history of abuse of alcohol and drugs. He did not appear to have any insight into the effect of his criminality on members of the public.

[14] 	Nolan is 35 years old. He has 116 previous convictions including four robberies, 12 thefts and two burglaries. The offences committed in May 2007 were committed just three months after he had been released from custody having served a nine-year custody probation order for conspiracy to rob imposed in 2001. That was a conspiracy to rob a cash delivery vehicle. It was indicated that he was at high risk of reoffending because of his past record and the Probation Service considered him to represent a significant risk of serious harm to others. There were psychiatric and psychological reports before the learned trial judge as a result of which she considered that Nolan did not meet the dangerousness provisions of the Criminal Justice (Northern Ireland) Order 2008. There is no challenge to that assessment and it appears to us that the learned trial judge took into account the correct principles and applied them appropriately.

Aggravating and Mitigating factors

[15] 	There were a number of serious aggravating features which were common to both offenders:

(i) 	the premeditation and planning in relation to the offences of robbery in most of which more than one perpetrator was involved;

(ii)	it was intended that substantial sums of money would be stolen from the cash in transit operations on two separate occasions in January and June 2008 and a total of £55,000 remains unrecovered;

(iii)	in relation to Nolan he also targeted business premises;

(iv) 	the use of weapons and violence and the willingness to put vulnerable victims, including women, in fear;

(v) 	the fact that the offences were carried out in public putting members of the public in fear;

(vi) 	each offender’s significant record of relevant previous convictions;

(vii) 	each offender was on licence at the date of the commission of at least some of the offences; and

(viii) 	each offender engaged in criminal activity within a very short time of release from prison for similar offences.

[16] 	Although it was accepted that there was a degree of premeditation and planning in relation to these offences it was submitted on behalf of the offenders that there was a lack of sophistication which distinguished these offenders from those engaged in similar crimes. Each offender was separately identified by police officers from CCTV in the course of these criminal enterprises. That suggests a lack of forensic awareness. In order to obtain the vehicle to use on the robbery carried out on 5 January 2008 Nolan used his brother's mobile phone to contact Mr Green thereby steering the police in his direction. In the robbery committed on 12 June 2008 Nolan used a motor vehicle which was registered in his own name. There was no evidence of the usual telephone traffic that is typical of professionally organised gang robberies and no indication that more than two people were ever involved in any of these robberies.

[17] 	The background to that submission was a position conveyed to the learned trial judge by the prosecution and defence as appears from the following excerpt from the transcript:

"It is agreed between the prosecution and the defence, and will respectfully be submitted to the court, that the appropriate sentencing range for a number of professionally organised robberies, carried out by a gang and with careful planning is, on a plea of guilty, 12 to 15 years imprisonment and that this case falls to be considered in a category below that.”

[18] 	The second substantial point canvassed in mitigation on behalf of the offenders is that each pleaded guilty. The learned trial judge gave full credit for the pleas on the basis that each had been entered after full disclosure had been made by the prosecution. We consider that it is plain that she was wrong to give full credit in those circumstances. This court has made it clear that to benefit from the maximum discount a defendant must have admitted his guilt in respect of the charge at the earliest opportunity. The greatest discount is reserved for those cases where a defendant admits his guilt at the outset which will normally be at the interview (see Attorney General’s Reference (No 1 of 2006) [2006] NICA 4). In these cases the offenders made no admissions at interview and indeed entered defence statements denying guilt. An offender who chooses to take such a course while exploring disclosure issues cannot normally expect to obtain full discount on a plea of guilty entered subsequently.

Consideration

[19] 	It was accepted in argument that if the appropriate sentencing range on a plea for a number of professionally organised robberies carried out by a gang with careful planning is 12 to 15 years imprisonment the range for such robberies after a contest is 18 to 22 years. Indeed in some cases an even higher figure might be appropriate. We accept that the level of planning, sophistication and skill in execution of these crimes suggests a somewhat lower sentencing range despite the significant aggravating factors in these cases. We consider that the appropriate sentence on a contest in the case of Nolan was in or about 16 years imprisonment and in the case of Shannon in or about 13 years imprisonment.

[20] 	We have already indicated that we do not consider that either was entitled to full discount for their plea. Each persisted in his denial of guilt for a substantial period of time and in our view each should obtain only half the benefit that he might have achieved had he accepted that guilt at the start. In the case of Nolan we consider, therefore, that the appropriate sentence was in or about 13½ years imprisonment and in the case of Shannon in or about 11 years imprisonment. It follows that we consider each of the sentences imposed was unduly lenient.

[21]	We must, however, take into account the effect of double jeopardy and in light of that we propose to substitute a term of 12 years in the case of Nolan for each of the robbery counts on which he was sentenced to nine years and ten years imprisonment in the case of Shannon on each of the robbery counts to which he pleaded in lieu of seven years. In both cases the substituted sentences will operate concurrently. In the case of Nolan the determinate sentence of 12 years should consist of six years imprisonment and six years on licence. The Serious Crime Prevention Orders made by the learned trial judge will remain in place.