Where a sentencing judge had allotted a sentence entirely to the charge of robbery and had imposed a concurrent sentence in respect of a firearms charge, there was no ground for interference as he had imposed a sentence appropriate to the overall level of criminality of the enterprise.Application by the Attorney-General for leave to refer two cases to the court under s.36 Criminal Justice Act 1988 on the grounds that the sentences imposed on two offenders ('H' and 'W') were unduly lenient. H and W were part of a team of men who used a stolen car to commit two robberies at gunpoint. On 26 February 2003, Foley J sentenced H and W. H was sentenced to a total of eight years' imprisonment reflecting sentences of eight years for each of two counts of robbery, to run concurrently, with the remaining sentences for two offences of possessing a firearm or imitation firearm while committing a robbery and taking a motor vehicle without consent, to run concurrently with the eight-year sentences. W was sentenced to a total of nine years' imprisonment based on nine years for each of two counts of robbery, to run concurrently, with the sentences for possession of a firearm or imitation firearm while committing a robbery and allowing himself to be carried in a stolen vehicle to run concurrently with the eight-year sentences. The aggravating features in respect of both offenders were that both were part of a team, the robberies involved a weapon and during the second robbery there were threats to shoot the victim. Mitigating circumstances in respect of H were that he pleaded guilty to all charges and was 19 years old at the time of committing the offences. W was also 19 and a further mitigating circumstance was that he had not personally carried the weapon or uttered threats. Both offenders had criminal records and were drug addicts. The Attorney-General submitted that the overall sentences for the offenders did not adequately reflect the gravity of their offences and, in particular, the sentences for the firearms offences should have been made to run consecutively with the sentences for the robberies.HELD: (1) The possession of firearms should be regarded as an aggravating feature in relation to other offences and it was appropriate for a sentencing judge to render the sentence passed in respect of firearms consecutive to the sentences in respect of the other offences. However the judge had to have regard to the principle of totality in arriving at the appropriate overall sentence. Those observations should generally be followed in any case where the possession of a firearm was not taken into account in assessing the appropriate sentence for another offence. They should not be followed randomly where, in passing sentence for another offence, the judge took into account the possession and/or use of a firearm or imitation firearm as an aggravating feature reflected in the term imposed in respect of that offence. (2) It would frequently be the case that a judge passing sentence in the case of a robbery involving possession or use of a firearm or imitation firearm would take that element into account when sentencing on the principal offence of robbery. The principle of consecutive sentencing was particularly desirable and appropriate where possession or use of a firearm was not the essence, or an intrinsic part of, the other offence/s charged. In such a case there was an "add-on" or aggravating element that clearly required recognition by a consecutive sentence. On the other hand, where the possession or use of a firearm constituted the very violence or threat of violence that was an essential element of the offence of robbery, the requirement for consecutive sentencing fell to be more flexibly considered and applied. (3) If, as here, it appeared that the sentencing judge had imposed a sentence appropriate to the overall level of criminality of the enterprise, then the fact that he had allotted that sentence entirely to the charge of robbery and had imposed a concurrent sentence in respect of the firearms charge would not afford any ground for interference by the Court of Appeal. It had not been established that the judge erred by imposing an unduly lenient sentence. Had the sentences in respect of the firearms offences been imposed consecutively, the overall terms of imprisonment would have been excessive.Application refused.

[2003] EWCA Crim 3089

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