Neutral Citation Number:
[2016] EWCA Crim 1541
No: 201601295 A4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 22nd September 2016
B e f o r e
:
LORD JUSTICE DAVIS
MRS JUSTICE CARR DBE
MRS JUSTICE PATTERSON DBE
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R E G I N A
v
THOMAS MICHAEL HANNIFIN
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Computer-Aided Transcript of the Stenograph notes of
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(Official Shorthand Writers to the Court)
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Miss Moore QC & Miss C Sumnall
appeared on behalf of the
Appellant
Mr E Lewis
appeared on behalf of the
Crown
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J U D G M E N T (Approved)
1.
MRS JUSTICE CARR:
2.
Introduction
3.
On 13th October 2015 in St Albans Crown Court, the appellant, now aged 23 years, pleaded guilty to and was sentenced for the following offences: on count 1, conspiracy to commit burglary contrary to
section 1(1) of the Criminal Law Act 1977
, 12 years' imprisonment; on count 3, robbery contrary to
section 8(1) of the Theft Act 1968
, 38 months' imprisonment, such sentence to run consecutively to the sentence on count 1. Thus the total custodial sentence was one of 15 years and two months. A victim surcharge order was imposed in the normal way.
4.
This is the appellant’s appeal against sentence, brought with the leave of the single judge.
The facts
5.
The conspiracy the subject of count 1 involved a series of burglaries committed over a three-month period between August and October 2014 across the south-east of England. All in all, 19 premises were attacked, 11 of which were sheltered accommodation for the elderly. The age of the victims ranged between 73 and 99 years.
6.
Cell site analysis incriminated the appellant. 3 telephone numbers relating to him showed that he was in the proximity of all of the offences at the relevant times. He left his fingerprints in one of the premises and was actually caught on camera in another. He drove a distinctive silver Audi which was present at all the burglaries and was also caught on camera. The Audi had a sun roof unusual for its make and model. The conspirators also changed its number plate on a not infrequent basis.
7.
To understand the full nature and extent of this appalling offending, it is necessary to set the facts out in a little detail.
8.
On 31st August 2014 the 79-year-old complainant was at home alone. The appellant claimed that her water supply needed checking and he accompanied her into the kitchen and turned the taps on and off. At the same time his accomplice was searching the house. Nothing was stolen. The appellant was identified by his fingerprint on the kitchen taps. His telephone was within the location and number plate recognition put the Audi near it as well.
9.
Count 3, the robbery, took place 2 weeks or so later. Late in the afternoon of 15th September the 77-year-old complainant was again at home alone. He left his front door ajar. 4 men burst in, claiming that they were from the police and that they needed to see his valuables. He objected. When he did so, they claimed that he was becoming hysterical. 2 of them pushed him onto the sofa and sat on him. The other 2 ransacked his bedroom, stealing £13,200 which he had been saving in a pillow in his bedroom. The 4 men then left. Again, CCTV and number plate recognition showed the Audi to be present and the appellant's telephone number was also identified at the location. The very same day, in the very same road, an 86-year-old returned home to find that she had been burgled and her purse containing £40 had been taken from the kitchen table. Both of these premises involved sheltered accommodation.
10.
The next day there were 2 burglaries, involving a 79-year-old complainant in the first and an 80-year-old in the second. They answered their doors to a man wearing a blue fake NHS lanyard claiming, again, that there was a problem with the water. The man went to fetch a colleague. One man distracted the complainants by fiddling with the taps in the kitchen whilst another went upstairs. The 79-year-old lost £130 in cash and jewellery which was of personal value. The 80-year old complainant was present with her husband and her son who was visiting. Her husband suffered from dementia and was recovering from a surgical operation. As the burglar went to leave she confronted him; he claimed to be looking for a dog. He left with the other 3 men. Again, the Audi was caught on number plate recognition.
11.
On 24th September 2014 the 73-year-old complainant was alone. The appellant approached her, claiming to be from the police. She showed him the memocam the police had fitted. He left and she noticed that he was wearing a distinctive blue lanyard. The police viewed the memocam and the appellant was identified, as was his telephone activity at the relevant time and the relevant location.
12.
On 29th September 2014 the same modus operandi was engaged. This time the complainant was 94 years old. She answered the door to a man claiming that he wanted to check the water. The man was wearing a lanyard again with the words "NHS Trust". He distracted her in the kitchen. Another man entered and searched the house. She watched the men walk away and meet up with another.
13.
The next day, 30th September, two distraction burglaries again using the same ruse, took place. 2 elderly ladies, aged 88 and 93, were home alone. The first was an unsuccessful attempt, because the complainant confronted the men. They shoved her out of the way as they made their escape. The second complainant lost £100 in cash taken from her purse in the kitchen. Jewellery was stolen. Notably, she lost her mother's engagement ring dating back to 1917 and her own engagement ring. Again, the appellant could be identified by location.
14.
On 18th October no less than 7 burglaries took place. The first was unsuccessful in the sense that the 99-year-old complainant would not allow anybody in and threatened to call neighbours. The next 4 burglaries took place in sheltered accommodation involving 4 ladies, aged 80, 82 and two aged 88. Again, a bogus water board official approached them. The appellant's telephone was put in the location. In the third burglary the complainant was not at home. Her front door was forced and an untidy search carried out with jewellery being stolen. The fourth complainant lost £50 from the kitchen.
15.
Moving on to the next 2 burglaries, in the first of which nothing was taken, but in the second an 86-year-old lady had £3,000 worth of cash and jewellery stolen, again through the ruse of water board officials.
16.
17.
The final 5 burglaries took place on 23rd and 24th October. An 84-year-old lady lost £9,000 worth of cash and jewellery from her bedroom, again after being approached by a bogus water board official. The appellant was identified by location, the car and through his telephone. The next day the first 2 burglaries failed as entry was refused. One of the complainants was frail, using a stick. She noticed that there had been an attempt to jemmy open her back door; she then contacted her neighbours. In the third burglary, jewellery was taken. In the final burglary, an 82-year-old was burgled in sheltered accommodation by burglars pretending to be plumbers who obtained access through an insecure front door.
18.
The appellant was arrested on 10th March 2015 and gave a “no comment” interview. He was 21 years old at the time of this offending. He had 5 previous court appearances for offences in 2011 and 2012. In 2011 he was sentenced to 6 months' imprisonment suspended for 2 years for an attempted theft of a dwelling.
19.
The effect of these dreadful crimes has inevitably been very significant. Victim impact statements are to an extent available, but some of the victims did not feel able to provide statements due to health issues or, for example, because they were looking after ill relatives, or indeed because they have passed away since the incidents in question. The victim impact statement of the complainant and victim the subject of the robbery is particularly moving. He describes his savings, which he had hoped to pass on to his 3 children, as having been lost. He can no longer afford to buy Christmas presents or go out for visits and is trying to save from his pension.
20.
The sentence below
21.
In passing sentence, the judge described this offending, quite rightly, as careful, planned and an executed enterprise of some sophistication. It was cowardly and despicable given that the victims were frail, often in poor health, both physically and mentally, isolated, vulnerable and their home was their place of safety. Fraud and trickery was used to gain entry and almost every aggravating feature that one could identify in the guidelines was present: the duration, planning, targeting, the number of burglaries, one of which of course turned into a robbery. The nature of the accommodation was also identified as was the nature of the property that had been stolen, including in particular the sentimental property stolen in the shape of the jewellery.
22.
The judge commented that the sentencing guidelines were of no relevance, because this offending was, in his view, way beyond what was envisaged by those guidelines. He took into account the appellant's available mitigation. Having reviewed all of the facts, he concluded that a starting point of 15 years should be taken for the conspiracy to burgle, allowing for aggravating and mitigating factors, which would be reduced to 12 years after the 20 per cent credit that he would allow for the appellant's guilty plea. As for the robbery, that carried a starting point of 8 years, which the judge viewed as lenient to the appellant. That 8 year period was further reduced by 50 per cent to allow for totality, so that sentence was reduced to 4 years. With a further 20 per cent credit for guilty plea, that would be reduced yet again to three years and two months to run consecutively.
Grounds of appeal
23.
Miss Moore QC advances the following succinct but central points. She submits on behalf of the appellant that the sentence of 15 years and 2 months was manifestly excessive. Firstly, the judge applied a starting point that was wrong in law in respect of the conspiracy to burgle. It is in fact not clear what the maximum available sentence the judge in fact thought was available at the time. Secondly, even if the error of law had not been made, the starting point of the maximum sentence was too high. The starting point, in her submission, should have been around 13 or 12 years, bringing the sentence down to approximately 10 years’ imprisonment.
24.
As for the robbery count, the starting point was too high. Whilst the judge had been legally entitled, she concedes, to have made the robbery sentence consecutive to the conspiracy to burgle sentence, looking at the facts of this particular case the sentence for the robbery could have been marked by a high starting point on the conspiracy and by a concurrent sentence. It is submitted that no sufficient credit was given for the identified mitigating factors available to the appellant other than for his guilty plea.
25.
Mr Lewis, who appears for the Crown and for whose assistance we are also grateful, accepts that the learned judge took an unlawful starting point on the conspiracy to burgle count, but submits that, whilst high, the total offending may have merited an overall sentence of 15 years and 2 months.
Ruling
26.
The judge's starting point of 15 years on the conspiracy count exceeded the statutory maximum sentence available for the offence. The maximum sentence for dwelling burglary is 14 years (see
section 9(3) of the Theft Act 1968)
and, by
section 3(3) of the Criminal Law Act 1977
, that is also the maximum on the count of conspiracy to burgle. Unfortunately, though perhaps understandably in the circumstances of this particular case, no-one appears to have realised this error at the time of sentencing. It is an error which we need to address.
27.
Beyond that, whilst perhaps unorthodox, the judge was undoubtedly entitled to pass a consecutive sentence on the count of robbery, provided always that the principle of totality was fully taken into account. The robbery involved different offending on a separate occasion and the judge was, as is fairly accepted by Miss Moore, entitled to mark it separately.
28.
The real question for us is whether or not the overall sentence of 15 years and 2 months' imprisonment was manifestly excessive.
29.
These were, we repeat, truly shocking and despicable crimes with multiple aggravating features, as the judge pointed out. Crimes committed on elderly and frail people such as these are ones from which the victims often, and demonstrably here in fact do, never recover. But we have come to the conclusion that a total sentence of over 15 years’ imprisonment on a plea of guilty, where the appellant had some, though not very significant, previous offending and was only 21 years old at the time of the offending and had not been to prison before, was manifestly excessive.
30.
On the count of conspiracy to burgle we have been taken to a large number of authorities, many of which involve different facts, a single burglary or far fewer burglaries. They are illustrative only, and Miss Moore points to them mainly as a touchstone to demonstrate that a sentence of 10 years’ imprisonment is a sustainable and realistic one. We have, in particular noted 2 cases. First,
R v Casey and Maloney
[2007] EWCA Crim 2568
: that case involved a campaign of 38 burglaries over a period of 3 ½ months, mainly involving elderly victims. The court in that case said the maximum 14 year sentence was appropriate for the individual defendant Maloney on the facts of his case. Secondly, we have noted
Attorney General's Reference No 44 and 45 of 2013
[2013] EWCA Crim 1640
. There the defendant McDonagh was aged 33 years old and very heavily convicted. On a count of conspiracy involving 17 burglaries, and again elderly victims, this court said that a starting point of 13 to 14 years would be appropriate.
31.
This was, in our judgment, a conspiracy involving offending close to the very worst case of its kind. Taking into account all aggravating and mitigating factors, a starting point of around 12 years on the conspiracy to burgle before credit for guilty plea would, in our judgment, be appropriate. This was very serious offending for the reasons which we have identified. After credit for guilty plea, that produces a sentence of 9 years and 6 months’ imprisonment on the count of conspiracy to burgle.
32.
As for the count of robbery, we have some reservations as to the starting point of 8 years adopted by the judge, but he did go on thereafter to make very significant reductions, not only for the appellant's guilty plea, but also to reflect totality. Taking into account in particular the principle of totality, an appropriate sentence on the count of robbery (to run consecutively) is one of 2 years’ imprisonment.
33.
To this extent, and for these reasons, we allow this appeal. The sentence on count 1 will be quashed and a sentence of 9 years and 6 months' imprisonment will be substituted in its place. The sentence on count 2 will remain a consecutive one, but the period of 3 years and 2 months will be quashed and a sentence of 2 years will be substituted in its place. Thus the overall custodial sentence following this appeal is one of 11 years and 6 months.