Neutral Citation Number: [2008] EWCA Crim 1505
No: 2008/0457/A6 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Wednesday, 7 May 2008
 
B e f o r e:

LORD JUSTICE HUGHES 

MR JUSTICE TREACY 
 
SIR PETER CRESSWELL 
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R E G I N A 

v 

MARCUS BURTON
 
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Mr D Munro appeared on behalf of the Appellant
Mr J Edwards appeared on behalf of the Crown
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J U D G M E N T 

1.	SIR PETER CRESSWELL:  On 29th October 2007 at Birmingham Crown Court the appellant, who is now aged 22, pleaded guilty and on 30th November was sentenced by Mr Recorder Morse as follows: count 2 (robbery) imprisonment for public protection, count 3 (possession of a firearm when committing a schedule 1 offence) imprisonment for public protection, count 5 (conspiracy to rob) imprisonment for public protection.  Thus the total sentence was imprisonment for public protection with a period of nine years less 148 days spent on remand specified under section 82A of the 2000 Act.  The appellant appeals against sentence by leave of the single judge.
2.	The facts were as follows.  On the morning of 1st December 2005 a security guard was making a cash delivery to a supermarket in Birmingham.  He had made three successful deliveries of cash boxes between the van and the shop and was carrying a fourth box containing £35,000 when he heard shouting.  He turned and saw a masked man pointing a black handgun at him from a distance of two feet.  The guard dropped the box and fled into the shop.  The man picked up the box and ran off with two others towards an Audi car which was driven off at speed.  The car was later found abandoned and the appellant's fingerprints were found on a newspaper in the car.  
3.	The appellant was arrested on 17th May 2006 and was questioned about the forensic findings.  He denied any involvement in the matter at that stage.  The view was taken that there was insufficient evidence to prosecute him at that time, hence counts 2 and 3.
4.	On the morning of 12th June 2007 two security guards were making a cash delivery to a supermarket in Plymouth.  One of the guards was in the process of loading a cassette into the machine when his colleague was distracted by three masked men approaching him from behind.  One of them was armed with a large knife which was thrust towards the guard, forcing him away from the safe.  Each of the robbers took a full cash box.  The total stolen was £70,000.  The three robbers then got into stolen Volkswagen car which was driven off at speed.  Two of the empty cash boxes were subsequently found on waste ground in Birmingham.  
5.	The appellant was arrested on 3rd July at an address in Birmingham.  Two mobile phones were recovered.  The appellant subsequently said in interview that he and others had travelled from Birmingham to Plymouth the night before the robbery and stayed in his mother's home before the robbery was carried out the next day.  He claimed not to have known of the intention to commit the robbery and that he had acted under duress in accompanying the robbers.
6.	The basis of plea was as follows:
"The defendant accepts involvement in counts 2 and 3 but pleads guilty to the possession of a firearm on the basis of joint enterprise ‑‑ he was not the person who carried the weapon.  He does not know what type of weapon it was, other than it appeared to be a handgun.  
He pleads guilty to conspiracy matter (count 5) on the basis that he was frightened by the other conspirators but nonetheless agreed to travel with them to Plymouth in order to assist with transportation and accommodation which facilitated the commission of the robbery." 
In passing sentence the Recorder said: 
"Paul Doyle who was convicted after a trial in the Crown Court at Warwick for one of these offences received a sentence of imprisonment for public protection to serve the minimum of seven years.  He is seven years older than you are.  Allowing for your plea of guilty it is possible to adjust that figure, seven years, downwards somewhat but I have to move it back up then Marcus Burton because there is the second offending.  You were arrested ... after December 2005.  The [Plymouth conspiracy] is an offence committed after an earlier arrest which should have alerted you to the possibility of changing your way.  
... I will impose a sentence of imprisonment for public protection.  ... I have to set a minimum period before which they cannot consider your.  In those circumstances I have adjusted the figure that I had in mind when I started this case in order to try to reflect some comparison with the sentence that was imposed on Paul Doyle.  With his sentence of seven years in mind and with the fact that you went on to commit this conspiracy after arrest for the earlier firearm robbery also mind I set the minimum period before which you cannot be considered for parole at nine years.  I order that the 148 days that you have already served will count towards that sentence." 
7.	The appellant had previous convictions for burglary and possession of class B drugs.  
8.	We have seen a pre‑sentence report dated 23rd November 2007.  
9.	In short and helpful submissions Mr Munro contended that in all the circumstances the minimum period of nine years was manifestly excessive and failed to reflect the appellant's pleas, his age and lack of relevant previous convictions.  Mr Munro referred to Turner [1975] 61 Cr.App.R 67, to Attorney General's Reference No 84 of 2001 [2002] 2 Cr.App.R (S) 51 and Murdoch [2004] 2 Cr.App.R (S) 40.  Mr Munro contended that the nine year minimum sentence betokened a sentence of 27 years after a trial.  
10.	We have considered these submissions.  The appeal in the present case is confined to the length of the minimum term (nine years).  Following the approach set out in O'Brien [2007] 1 WLR 833 we adjust the minimum period within the concurrent sentences to reflect the overall criminality.  In our opinion the notional determinate sentence which would have been imposed (if imprisonment for public protection had not been required) to reflect the overall criminality would have been 14 years (after full allowance for the pleas of guilty).  It follows that the appropriate minimum term should have been seven years.  Accordingly, we substitute seven years, less 148 days spent on remand, for the minimum term of nine years less 148 days specified by the Recorder.  To this extent only this appeal is allowed.