Where defendants were indicted for robbery, before an automatic life sentence was imposed under s.109 Powers of Criminal Courts (Sentencing) Act 2000, it had to be unequivocally established that s.109(5)(h) applied.Two appeals, listed together as they raised the same point of principle, against automatic life sentences under s.109 Powers of Criminal Courts (Sentencing) Act 2000. On 21 January 2002 the defendant, Benfield ('B'), pleaded guilty to robbery and on 12 April 2002 received an automatic life sentence for a second serious offence, with a specified period of four years' imprisonment. B had committed an armed robbery using what appeared to be a revolver but was in fact an air rifle. He asked for three other armed robberies to be taken into account. It was clear from the facts that the count he was indicted on, was under s.8(1) Theft Act 1968 and there was no reference to the requirements in s.109(5)(h) of the 2000 Act that the robbery was committed when B had a firearm in his possession. B appealed sentence and contended that the court could not deal with B as being a person who had committed a serious offence for the purpose of the section. There had to be either a separate count dealing with the firearms, i.e. s.109(5)(g), or the offence of robbery must include in the particulars, allegations that B had in his possession a firearm within the meaning of the Firearms Act 1968. As that was not done, the court had no jurisdiction to impose an automatic life sentence. Support for that contention could be found in R v Courtie (1984) 78 CAR 292, which was applied in R v D (1993) 14 CAR (S) 776. The decision of LJ Mance in R v Flamson (2002) 2 CAR (S) 48, where he held that there was no need to set out facts required to be established for the purpose of s.109(5)(h) where it was clear those facts were not in issue, should be regarded as per incuriam. The defendant, Sobers ('S'), committed a robbery with a co-accused who was in possession of a weapon used as a club rather than a gun. It was held that the robbery was a second serious offence and an automatic life sentence was imposed. The Crown conceded that it had not been "unequivocally established" that s.109(5)(h) applied.HELD: (1) R v Courtie (supra) was dealing with the Sexual Offences Act 1967 and was very different from the legislation considered in the present appeal. The offence of robbery was created by the Theft Act 1968. Section 109 of the 2000 Act dealt with automatic sentences to apply as a consequence of committing a second serious offence. Those situations were very different and it was wrong to regard s.109 of the 2000 Act as creating various different types of robbery depending on the provisions of s.109(5)(h). It was inconceivable that in passing the 2000 Act Parliament intended there should be created a new type of robbery. (2) It was important that an individual should have the opportunity of gaining a verdict of the jury if there was an issue as to whether he fell within s.109(5)(h). If there was an issue it should be determined in favour of a defendant unless he was convicted of an offence which established he was in possession of a firearm or he unequivocally admitted that was the position. (3) That was preferable to having an indictment always including an additional firearms offence which would mean that s.109(5)(h) added nothing to s.109(5(g) of the 2000 Act and where a defendant did not dispute that he had a firearm the indictment would be cluttered up. (4) Whether or not there was an issue should be abundantly clear from what happened in the court below. It will cause inconvenience having to look at what happened in the court before, but where a person was at risk of being subjected to an automatic life sentence it should be properly determined and not be left in a position of doubt. (5) Section 109 of the 2000 Act had always caused problems because of the imposition of an automatic life sentence. However, new legislation was soon to be enacted which would mean the problem would be resolved, in the meantime this was the approach to follow. (6) In the case of B, the life sentence should be set aside and a determinative sentence of 11 years' imprisonment imposed. (7) In the case of Sobers the determinative sentence was one of 12 years and that is what should be substituted for the automatic life sentence.Appeals allowed

[2003] EWCA Crim 2223

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