R v Craig Thorpe

An extension of time and leave to appeal against sentence will be refused where the proposed grounds are not arguable. A later change in sentencing policy does not retrospectively justify reducing a sentence that was lawful when imposed. For an imprisonment for public protection sentence, the appellate court examines whether the sentencing judge applied the statutory dangerousness test and whether the sentence was justified on the information then available. A later diagnosis does not retrospectively undermine that assessment where it provides no basis for reducing the risk of serious harm. Sentencing disparity is actionable only where an informed member of the public would conclude that something had gone wrong with the administration of justice. A leading role in a sophisticated conspiracy may be inferred from planning, preparation and control, even where the offender does not perform the central physical acts.

The applicant sought permission to appeal against two sentences. The first was an imprisonment for public protection sentence imposed at Harrow Crown Court on 21 July 2008 for robbery, with a notional minimum term of five years and six months. The proposed appeal was 5,818 days out of time and relied partly on a diagnosis of mild Asperger’s syndrome obtained in 2015.

The second sentence was a total of six years’ imprisonment imposed at Kingston Crown Court on 11 June 2024 after guilty pleas to two conspiracies to steal and fraud. The applicant challenged the assessment of his role, the length of the sentences and disparity with the sentence imposed on a co-defendant. The central issues were whether any ground was arguable, whether the delay should be extended, and whether the sentences were manifestly excessive or otherwise unlawful.

The court lifted the order made under section 4(2) of the Contempt of Court Act 1981, concluding that publication of the judgment would not create a risk of injustice in any proceedings involving the third party.

1. Harrow robbery: The proposed grounds were not arguable and the extension of time was refused. The sentencing judge applied the statutory test for dangerousness under the Criminal Justice Act 2003, as amended by the Criminal Justice and Immigration Act 2008, and was entitled to impose imprisonment for public protection. The applicant had three serious robbery convictions, weapons had been carried in each relevant incident, and the pre-sentence report identified a high risk of reconviction and serious harm. The later abolition of IPP by the Legal Aid Sentencing and Punishment of Offenders Act 2012 was not retrospective and did not make the sentence excessive. The court followed Roberts [2016] EWCA Crim 71 and Darren Hilling [2024] EWCA Crim 1279. The later diagnosis of mild Asperger’s syndrome did not undermine the 2008 assessment, which was based on the applicant’s offending history and risk of serious harm.
2. The sentencing judge had considered alternatives to IPP. The absence of a reference to Attorney General’s Reference No 55 of 2008 [2008] EWCA Crim 2790 was immaterial because that decision post-dated sentence, and the judge had not confined himself to a choice between life imprisonment and IPP.
3. Kingston offences: Leave to appeal was refused. The judge was entitled to find that the applicant had a leading role in the ATM conspiracy. His involvement in obtaining and disposing of the Audi, the sophisticated preparation, the use of associated yards and the wider evidence supported that conclusion, even though he remained in the Audi while others attacked the ATM. The offence was in category A because of its sophistication and significant planning, independently of the prosecution’s sentencing position.
4. The disparity ground failed. Applying Fawcett [1983] 5 Cr.App.R (S) 158, the difference from the co-defendant’s sentence did not show that anything had gone wrong with the administration of justice. The co-defendant’s different convictions explained the lower total sentence.
5. The individual sentences were not manifestly excessive. The judge properly considered aggravating and mitigating factors, guilty-plea credit and totality. The applicant was not entitled to credit for time spent on remand because he had been recalled on licence, and the abolition of IPP was not retrospective.

Both applications were refused.

• Court of Appeal (Criminal Division): The renewed applications were refused. The court also refused an extension of 5,818 days for the proposed appeal against the 2008 sentence.
• Kingston Crown Court: On 11 June 2024 the applicant received a total sentence of six years’ imprisonment after guilty pleas to two conspiracies to steal and fraud.
• Harrow Crown Court: On 21 July 2008 the applicant received imprisonment for public protection with a notional minimum term of five years and six months for robbery.