Attorney General's Reference Under Section 36 of the Criminal Justice Act 1988 v Regina

A sustained cash-in-transit robbery conspiracy falls within the category of professionally planned commercial robbery where its scale, reconnaissance, co-ordination, concealment and laundering reveal a professional operation. The sentencing range must reflect those features, the offender’s role and antecedents.

Where an offender is already serving a sentence for later offending, totality requires the court to identify the sentence that would have been imposed for all relevant offending together and then make a just and proportionate adjustment. The adjustment must not understate the separate offending. A sentence materially below the proper range may be increased on an Attorney General’s reference.

Six offenders pleaded guilty to participation in an organised conspiracy involving 13 cash-in-transit robberies or attempted robberies over four months. The offences were planned and co-ordinated. They involved stolen or disguised vehicles, support vehicles, reconnaissance, physical intimidation of cash custodians and laundering of dye-stained notes.

The Recorder at the Central Criminal Court imposed sentences ranging from 21 months to 40 months’ imprisonment. Several terms were consecutive to substantial sentences already being served for later burglary offending. The Attorney General sought leave under Part IV of the Criminal Justice Act 1988, contending that the sentences were unduly lenient because the starting range and the totality adjustments were too low.

The central issues were the proper categorisation and sentencing range for the conspiracy, and the proper application of totality.

The Attorney General’s reference was allowed. The custodial terms were quashed and increased terms were substituted.

1. The definitive robbery guideline published in 2016 did not apply because sentencing preceded 1 April 2016. Under the 2006 guideline, the offending was plainly professionally planned commercial robbery. Its scale, repeated reconnaissance, stolen vehicles and registration plates, support arrangements, co-ordination and laundering operation placed it beyond the less sophisticated category.

2. The court drew support from Attorney General’s Reference No. 13 of 2012 (R v Anouar Bouhaddou) [2012] EWCA Crim 1066. That earlier conspiracy had attracted a pre-plea starting point of at least eight years. The present conspiracy involved 13 robberies or attempts and was considerably more serious. The Recorder’s range of four to seven years was too low. The proper range was six to 11 years’ imprisonment, according to each offender’s role, extent of participation and antecedents.

3. The Recorder correctly approached totality by asking what sentence would have been imposed had the offenders already serving sentences been sentenced for all relevant offending together. However, the allowance made was too great. The resulting adjustment had to remain just and proportionate while properly reflecting the separate cash-in-transit conspiracy.

4. The substituted terms were: David Kelly, four years’ imprisonment consecutive to the earlier sentence, producing 11 years in total; Durkin, five years and eight months; Salisbury, three years and four months consecutive, producing nine years and four months in total; Alan Kelly, three years consecutive, producing six years in total; Lewis, three years consecutive, producing nine years in total; and Sokhi, four years and four months.

• Court of Appeal (Criminal Division) — Allowed the Attorney General’s reference and substituted increased custodial terms: [2016] EWCA Crim 750.
• Central Criminal Court — The Recorder sentenced the six offenders on 14 March 2016 for conspiracy to rob and, in two cases, burglary.