Thomas, R. v

Sentences for serious, professionally planned armed commercial robberies must reflect current sentencing practice and the fact-specific gravity of the offending. Historical sentencing language, including the classification of a case as wholly abnormal, must not be applied as a rigid category. The guidance in R v Turner [1975] 61 Cr App R 67 no longer supplies a ceiling or cap for such sentences.

A trial judge need not direct a jury on a speculative factual scenario which has no evidential foundation and was not advanced as the defence case. On a sentence appeal, the court assesses totality, each offender’s role and whether the sentence is wrong in principle or manifestly excessive.

Four defendants were convicted at Woolwich Crown Court following a carefully planned armed robbery of Graff jewellery store. Jewellery worth £40 million was taken and not recovered. Kassaye and Calderwood entered the store carrying converted handguns. Thomas and Mogg were convicted for their roles in the conspiracy and the organised escape.

Thomas and Kassaye renewed applications for leave to appeal against conviction. They alleged, respectively, inadequate representation and inadequate directions concerning a suggested inside job. All four defendants pursued sentence appeals. The central sentencing issue was whether the robbery fell within an exceptional sentencing category and whether the total sentences were excessive or disparate.

1. The renewed applications for leave to appeal against conviction were refused and all four sentence appeals were dismissed.

2. Thomas had made an informed personal decision not to give evidence. The court found no basis for describing counsel’s handling of that decision as incompetent or for treating the conviction as unsafe. Kassaye’s proposed inside-job theory had no evidential foundation. It was also not the case advanced at trial. The judge therefore needed no further direction on it, and left the individual counts for the jury’s decision.

3. The court rejected the contention that the trial judge’s use of wholly abnormal had imposed an impermissible sentencing category. Sentencing for a planned armed commercial robbery must not be reduced to rigid linguistic classifications. The historical guidance in R v Turner [1975] 61 Cr App R 67, which was based on the sentencing context of 1975, no longer provides reliable assistance as to sentence levels or a ceiling for serious robbery.

4. The court endorsed the more recent approach in R v Jenkins and Others [2008] EWCA Crim 1372 and R v Twomey & Others [2011] EWCA Crim 8. Modern sentencing practice, including the changed framework for murder minimum terms under the Criminal Justice Act 2003, meant that old robbery decisions had to be approached with great caution. The paramount consideration remained the particular criminal activity and its gravity.

5. The robbery involved meticulous planning, firearms used and discharged in public, threats and terror to staff and the public, a hostage, and unrecovered property of exceptional value. The judge was entitled to assess each defendant’s role in the conspiracy and the totality of the consecutive terms. None of the resulting sentences was wrong in principle or manifestly excessive, and there was no unfair disparity.

• Court of Appeal (Criminal Division). In [2011] EWCA Crim 1497, the court refused Thomas’s and Kassaye’s renewed applications for leave to appeal against conviction and dismissed the four appeals against sentence.
• Crown Court at Woolwich. Kassaye, Thomas and Mogg were convicted in June and July 2010. Calderwood was convicted after a retrial in March 2011. Custodial sentences of 16 years for Thomas and Mogg, 23 years for Kassaye, and 21 years for Calderwood were imposed.