Practice and Procedure

R v STEPHEN MCCLUSKY (2003)

PUBLISHED January 28, 2003
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A total sentence of 11 years for robbery and possession of a firearm was manifestly excessive for this particular defendant, the 9 years for robbery and 2 years for possession of a firearm should be concurrent not consecutive.Appeal against sentence with leave of the single judge. On 22 April 2002 at Warwick Crown Court before HH Judge Cole the defendant ('M') pleaded guilty to theft, robbery and possession of a firearm at the time of committing an offence. M was sentenced to a total of 11 years imprisonment; 12 months for theft, 9 years for robbery and 2 years for possession of a firearm, to run consecutively with the sentence for robbery. On 3 January 2002 M, together with an accomplice ('B'), who had not been apprehended, stole a motorbike and bought a double-barrelled shotgun and ammunition. On 6 February 2002 they went to the local post office wearing crash helmets and balaclavas. B had the shotgun, and the postmistress was forced to open the secure area and M and B stole ?25,000 in cash and phone cards. M was arrested a week later and the shotgun and ammunition was found at an address to which M had a connection. At the second interview M admitted robbing the post office but said that B was the main perpetrator. When sentencing, the judge took into account the fact that the gun had not been loaded, little violence had been used and the full and frank admissions and guilty plea. However, M had 21 recorded previous convictions including burglary and had served numerous prison sentences. An aggravating feature of the offences was that M had been on licence at the time. M appealed on the ground that the sentence was manifestly excessive.HELD: (1) This was a carefully planned robbery and a sawn off shotgun was used, the staff were not to know the gun had not been loaded. Employees were entitled to look to the court for protection particularly where a weapon had been used. (2) There would undoubtedly be many occasions where the court should impose a consecutive sentence for possession of a firearm at the time of committing an offence to highlight the gravity of the fact that the robbery was an armed one. (3) Looking at the sentence in its totality 11 years was manifestly excessive for this particular defendant as he was only 21 and admitted the offence at the earliest opportunity. The 9-year sentence for robbery adequately reflected that an unloaded weapon had been used. (4) The sentence of 11 years would be quashed and 9 years substituted, making the sentences for robbery and possession of a firearm concurrent.Appeal allowed.

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