Neutral Citation Number: [2007] EWCA Crim 1898

Case No: 2006/02254 C2

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM The Crown Court at Swansea 
Mr Justice Roderick Evans
T20050356
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 26 July 2007

Before:

LORD JUSTICE HOOPER
MR JUSTICE BURTON 
and
MR JUSTICE FLAUX
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Between:

	Andrew Paul Rafferty	Appellant	
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	The Crown 	Respondent	

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Mr G Elias QC and Mr D A Harris (instructed by Goldstones Solicitors) for the Defendant
Mr R Spencer QC and Mr P Griffiths for the Crown

Hearing date: 6 June 2007
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Judgment
LORD JUSTICE HOOPER : 

1.	Having quashed the appellant’s conviction for manslaughter it became necessary to sentence the appellant for the offence of robbery to which he had pleaded guilty at the PCMH and in respect of which the judge imposed no separate penalty. At the conclusion of the hearing we announced that we would impose a sentence of 10 years detention under s.228 of the Criminal Justice Act 2003 made up of a custodial term of seven years and an extension period of three years. We also ordered that the 265 days spent on remand is to count towards the sentence.
2.	We now give our reasons for that decision. The facts are very fully set up in our decision to quash the decision for manslaughter [2007] EWCA Crim 1846. We start with the judge’s sentencing remarks. He said:-
Rafferty, you are, of course, in a very different position. You were convicted of manslaughter on what was referred to at trial, as the causation basis. That is the violence which you bear responsibility, made a significant contribution to the death of Ben Bellamy at the hands of Taylor and Thomas, when they drowned him. Either by rendering him unconscious, so he could not resist drowning or if he remained conscious, by reducing his ability to resist drowning at their hands. On the evidence, that I have heard, I am satisfied, so as to be sure, that you bear responsibility, not only for an element of the violence used before you went to the cash point, but also for a degree of violence used thereafter.
I accept of course, that at one stage you said to the other two, ‘leave it there boys.’ But I am satisfied that you elbowed Ben Bellamy in the back, to keep him on the ground when attempts were being made by somebody else to stop the attack, by Thomas and Taylor. That evidence is your support for the attack that was being carried out. I am also satisfied that you anticipated that you would return to the scene of the robbery to meet up with Thomas and Taylor and that Ben Bellamy would have been kept there against his will, by the other two. That it seems to be followed inevitably from you three robbers agreeing to meet up, a considerable time later, at the spot where the robbery occurred.
I accept, of course, in accordance with the jury’s verdict, that not only did you not intend to kill Ben Bellamy but also you did not intend that he received really serious harm. I have read the pre-sentence report, dated 17 May 2006, you were born on 6 November 1987, you are now 18 years of age and seven months. You pleaded guilty to the robbery I am told when you were 17, but you were convicted of manslaughter, when you were 18. You are one of three people who attacked a defenceless person, alone at night. Then you left the scene, intending to return, you were aware of the conduct of Thomas and Taylor.
I bear in mind your guilty plea to the robbery, the fact that you, alone, of the defendants answered questions to the police and you gave an account which was, in essence, demonstrably accurate. I bear in mind your background, and your family support. In sentencing you, I have to consider the question of dangerousness, that is whether there is a significant risk to members of the public of serious harm, occasioned by the commission, by you, of furthe4r specified offences. The presumption of dangerousness, set out in s.229 of the 2003 Act, does not apply in your case, despite your previous conviction for affray. Because you were under 18 at the time that affray occurred. However, I am bound to consider all the relevant information about you in considering the question of dangerousness. In so doing, I consider your previous conviction, I considered these two offences. Also the knife incident in April 2004 and the content of the pre-sentence report.
Having done so, I conclude that the risk identified in chapter five of the 2003 Act, does exist in your case. This however, is not a case which calls for a life sentence, as far as you are concerned. I intend to pass upon you a sentence of imprisonment for public protection, that is an indeterminate sentence. You will be released only when the authorities consider that you are no longer a danger. Again I am required to fix a minimum term which you just serve before you can be considered for release. When you have served that term, you will not be automatically released, you will be released on licence, only when it is safe to release and that licence is liable to remain for the rest of your life. I impose this sentence only on the offence of manslaughter, having considered, in so doing, the associated offence of robbery. The term that I would have passed upon you, had I not been passing this sentence of imprisonment for public protection is one of ten years custody. I am required by statute, to halve that, and to deduct from it, the time that you have spent in custody, which I do. Given paragraph 30 of our judgment allowing the appeal against conviction it seems to us only right not to take into account when sentencing him, any responsibility for the violence used thereafter. Mr Elias submitted that we should also not take into account the reference by the judge to the appellant returning to meet up with the co-defendants and the appellant anticipating that Ben Bellamy would have been kept there against his will. It seems to us as Mr Spencer submits, that we are entitled to take that into account because it is part and parcel of the robbery. 
3.	The judge refers to the previous conviction for affray. That is an important factor in this case and we have been provided with the sentencing remarks of His Honour Judge Elystan-Morgan dated 11 November 2004. The appellant Rafferty pleaded guilty to an offence of affray at the close of the prosecution case and Joel Taylor the co-defendant in the case with which we are concerned pleaded guilty to an offence of wounding contrary to s.20 of the Offences against the Person Act. There had been an altercation in which a man had been assaulted. That led to “an atmosphere of threat and of a desire for violence” and to the co-defendant Taylor going to the home of a neighbour asking for a knife. The neighbour refused but Taylor armed himself with a sharp instrument. We were told that it was likely to have been a sharpened piece of bone. With that sharpened instrument Taylor stabbed McNeil deliberately twice in the lower back. Fortunately the wounds were somewhat superficial. In the words of the judge when he sentenced Taylor in Rafferty’s presence, he said to Taylor:
“But when you stabbed that man you knew not where that weapon was going; it could have gone into a vital organ and indeed the very gravest consequences could so easily have flowed from your act.”
The sentence passed was a detention and training order for a period of eight months. Insofar as Rafferty was concerned he said:-
“I take the view… that you were a peace maker and you did speak kindly and decently to McNeil and tried to explain to him what the situation was and tried to calm the others down. But at a late point in events you became a belligerent, in other words, you became a fighter rather than a peace maker, and I take that into account.”
Taking into account that Rafferty was a peace maker for a substantial period of time he passed a supervision order for the offence of affray. 
4.	The importance of that conviction and those sentencing remarks is two-fold. We shall consider below the impact upon the assessment which we have to make by virtue of the provisions of Chapter IV of the Criminal Justice Act 2003. The involvement in this offence constitutes a substantial aggravating factor for the offence of robbery. Rafferty was again involved with Joel Taylor. He participated in the offence with Joel Taylor knowing Joel Taylor’s capacity to be as violent as he had been on the earlier occasion. To help Taylor in his assault on Ben Bellamy knowing of what Taylor was capable, is, in our view, a very serious aggravating factor. 
5.	We now turn to the Guideline on sentencing for robbery. Rafferty was aged 17 at the time of conviction and the appropriate guideline is to be found at page 14. Mr Elias accepts that the robbery falls into either category 2 or category 3 although he asks us to find that it falls into category 2. He said that the conviction of manslaughter showed only an intent to cause some harm and that was sufficient to put it into category 2. In our view this is a category 3 robbery- serious physical injury was caused during the course of the robbery albeit that the defendant may have only intended some less serious harm. This being a category 3 robbery the starting point is seven years with a sentencing range of six to 10 years. The following aggravating features are to be found:-
More than one offender was involved. 
The victim was restrained and detained during the course of the robbery.
 The offence was pre-planned and committed at night. 
There was an element of vulnerability insofar as the victim was concerned. 
6.	In so far as the pre-planning is concerned, it seems clear that the idea of robbing Bellamy had been formed earlier before the arrival on the beach.  Additionally the offence of robbery continued over a considerable period of time.
7.	In so far as the listed mitigating factors are concerned, there was evidence of remorse in the appellant’s admissions to the police that he had been involved in the robbery. However, even in his basis of plea to the robbery Rafferty did not disclose his true involvement in the robbery as found by the jury. 
8.	We take the view that given all the aggravating features and in particular the fact that he committed this offence with Taylor, the sentence following a trial would be in the region of 10 years’ detention. Allowing for the plea of guilty we reduce that to seven years. 
9.	We now turn to the issue of dangerousness. We must now reassess the judge’s conclusion. Having done so we have reached the same conclusion as the judge. In our view there is a significant risk to the members of the public of serious harm occasioned by the commission by Rafferty of further specified offences. We have looked at the pre-sentence report. It shows a young man who is seriously disturbed and subject to substance and alcohol abuse. In the words of the probation officer there was no evidence to suggest that the appellant will react any differently should he be faced with a “same scenario” situation. To put it the other way, there is a significant risk that he will behave in that way. It seems to us that the circumstances of the robbery against the background of the affray in themselves provide sufficient evidence that the appellant is a significant risk within the meaning of s.225. 
10.	Because Rafferty was only 17 at the time of the conviction we have to decide whether an extended sentence is sufficient or whether it is necessary to pass a sentence of imprisonment for public protection. We take the view applying s. 226 that an extended sentence will be adequate for the purpose of protecting the public from serious harm and it is not necessary to impose a sentence of imprisonment for public protection.
11.	These are our reasons for passing the sentence which we announced at the end of the hearing,