Toomey & Anor, R v

In an appeal against sentence, the decisive question is whether the sentence is manifestly excessive. A severe sentence will not be reduced where the gravity of the robbery, the vulnerability of the victim, the intrusion into the victim’s home, the offenders’ violent histories and their respective personal circumstances justify it. The appellate court will assess the whole circumstances of the offending and offender, rather than treat a sentencing range for a single robbery as determinative.

The applicants pleaded guilty at Blackfriars Crown Court to robbery. Toomey received eight years’ imprisonment and Francis received seven years’ imprisonment. Counts of false imprisonment and theft were left on the file.

The robbery followed earlier demands for money from a man whom the applicants regarded as unlikely to complain to the police because he wished to preserve the privacy of his sexuality. The applicants entered his flat at night, threatened him, forced him to the ground and took money.

After the single judge refused leave, both applicants renewed their applications to appeal against sentence. The central issue was whether either sentence was manifestly excessive.

1. The renewed applications for leave to appeal against sentence were refused. The court held that neither sentence was even arguably manifestly excessive.

2. The proper appellate question was whether the sentence imposed was manifestly excessive. The court accepted that the sentences were severe, but severity alone did not establish excess.

3. The sentencing judge was entitled to treat the robbery as exceptionally serious in its context. It involved two larger men targeting a vulnerable victim in his own home, against a background of bullying and repeated demands for money. The victim’s wish to keep his private life private made him less likely to seek police assistance, a circumstance the applicants anticipated and exploited.

4. The applicants’ histories of violence were material. Toomey had the more serious record and committed the robbery while on licence. The court also noted the late guilty pleas and the absence of an obvious demonstration of remorse, which limited the mitigation available.

5. Although counsel relied on a sentencing range stated in Attorney General’s Reference No 48 of 2000, R v Johnson [2001] 1 Cr App R (S) 423, the court concluded that the unusual and grave features of this robbery justified the sentences imposed.

• Court of Appeal (Criminal Division): Renewed applications for leave to appeal against sentence were refused.
• Single judge: Leave to appeal against sentence was refused.
• Blackfriars Crown Court: On 25 February 2004, Toomey was sentenced to eight years’ imprisonment and Francis to seven years’ imprisonment for robbery.