Attorney General's Reference Nos 41 and 42 of 2007 (Naidoo & Anor)

For a series of commercial robberies, sentencing guidance for an individual robbery provides only a starting point. The court must impose a total sentence that reflects the whole campaign of offending, including deliberate threats designed to cause fear and any escalation in seriousness.

On an Attorney-General reference, the effect of double jeopardy is substantially reduced where the original sentence is already lengthy. A significant allowance will generally be confined to a non-custodial sentence, or a short custodial sentence that is substantially increased. A firearm offence may properly attract a consecutive sentence to mark its distinct criminality, provided that the sentencing exercise avoids double counting.

The Attorney-General sought leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient the sentences imposed on Robert Naidoo and David Manton on 12 March 2007.

Each offender had received concurrent terms totalling six years’ imprisonment for four robberies, two attempted robberies and possession of an imitation firearm with intent. They had pleaded guilty and had carried out a sequence of bank and building-society robberies. They repeatedly threatened staff with guns and, in the final robbery, an imitation handgun was produced and pointed at staff.

The central question was whether concurrent sentences totalling six years adequately reflected the total criminality of the campaign and the final firearm offence.

1. The Attorney-General’s references were allowed. Leave to make the references was granted. The total sentence for each offender was increased from six years to 10 years’ imprisonment.

2. The court held that the offending was a campaign of robberies, not an isolated robbery. The Sentencing Guidelines Council’s robbery guideline supplied a starting point for each individual offence, but could not determine the proper aggregate sentence. The repeated use of threats of guns deliberately created fear among staff. The final robbery represented an escalation because an imitation handgun was actually produced and used to threaten staff.

3. The offenders’ guilty pleas, relative youth and personal mitigation had to be taken into account. Even allowing for those matters, a total of six years failed adequately to reflect the overall criminality. The minimum total sentence properly to be expected was 10 years.

4. The court also explained that double jeopardy has its greatest effect where a non-custodial or short custodial sentence is substantially increased. Its effect diminishes as the original custodial sentence becomes longer. It did not justify leaving these sentences unaltered.

5. Although the Attorney-General had not submitted that a consecutive firearm sentence was required as a matter of principle, the usual practice was to mark the separate use of a firearm by a consecutive term, while avoiding double counting. The sentence on the final robbery, count 8, was increased to eight years. The two-year sentence on the imitation-firearm count, count 9, was ordered to run consecutively, producing a total of 10 years’ imprisonment for each offender.

• Court of Appeal (Criminal Division): The Attorney-General’s references under section 36 of the Criminal Justice Act 1988 were allowed. The court increased each total sentence to 10 years’ imprisonment: [2007] EWCA Crim 1916.
• Sentencing court: On 12 March 2007, each offender received concurrent sentences totalling six years’ imprisonment for the robberies, attempted robberies and imitation-firearm offence. The court and citation are not stated in the judgment.