Neutral Citation Number: [2010] EWCA Crim 1564
Case No: 200906678D1, 201000053D1
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Tuesday, 15 June 2010
 
B e f o r e:

LORD JUSTICE PILL 

MR JUSTICE FOSKETT 
 
MRS JUSTICE NICOLA DAVIES DBE 
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R E G I N A 

v 

(1) MARK JOSEPH WELLS
(2) RECEP OZER 
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Mr LJC Selby appeared on behalf of the First Appellant
Mr J Carr appeared on behalf of the Second Appellant 
Mr S Wilshire appeared on behalf of the Crown 
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J U D G M E N T

1.	LORD JUSTICE PILL:  On 19 October 2009 in the Crown Court at St Albans before HHJ Catterson and a jury, Mark Joseph Wells and Recep Ozer were convicted of conspiracy to rob (count 1).  On 27 November, Wells was sentenced to 30 months' detention in a Young Offenders Institution, less 39 days spent on remand, and Ozer to 78 months' imprisonment, less 249 days spent on remand.  Wells appeals against conviction by leave of the single judge.  Ozer appeals against sentence by leave of the single judge.  These are quite distinct appeals, and we deal with the appeal against conviction by Wells first.
2.	A co‑accused, Adamson, was convicted of conspiracy to rob and sentenced to two years' imprisonment, less time spent on remand.  Ajibulu changed his plea to guilty to count 1, and was sentenced to 54 months' imprisonment, less time spent on remand.  Webster changed his plea to guilty to count 1.  He too was sentenced to 54 months' imprisonment, less time spent on remand.  Ajibulu and Webster pleaded guilty to count 1, the conspiracy being dated between 1 February and 21 March 2009.  
3.	A count of conspiracy to steal between the same dates was added to the indictment as count 2.  That was done immediately prior to the trial of Wells, Ozer and Adamson.  It was done to reflect the contents of the defence statements of Ozer and Adamson.  They admitted that they had been a party to a conspiracy to steal, but claimed that it was only a conspiracy to steal, and that Ajibulu and Webster, who pleaded guilty to count 1, must have entered into a new agreement of their own accord.  
4.	Ozer and Adamson then pleaded guilty to count 2.  Their pleas were not accepted by the prosecution.  Wells, having pleaded not guilty to count 1, also pleaded not guilty to count 2.  Thus the trial proceeded on count 1 for both Ozer and Adamson, and on counts 1 and 2 for Wells.  
5.	When the jury brought in their verdicts of guilty on count 1, they were discharged from giving a verdict in relation to Wells on count 2.  
6.	Mr and Mrs Yesilada live at an address in Baas Lane, Broxbourne.  They own a meat wholesaler business.  It had moved to new premises in January 2009 and had a high profile in that the opening ceremony had been well publicised.  Mrs Yesilada was responsible for the banking of the business' money.  She would usually do that on her way home from work.  
7.	At around 8 o'clock on 20 March 2009, Mrs Yesilada drove home in her vehicle from the business to the drive of her family home.  Unbeknown to her, hidden in the bushes of the driveway and waiting in ambush were Ajibulu and Webster.  They were intent on robbing her.  Ajibulu was wearing a dark hooded top and full dark navy denim overalls which covered him from head to toe.  Webster was wearing gloves and dark clothing, which included a hoody pulled over his head and a scarf which was capable of covering his face up to his eyes.  
8.	The prosecution case was that they were part of a five‑man team involving all those mentioned, who had been watching the Yesiladas on each Friday of the preceding weeks, with a view to robbing them of what they thought would be the weekly takings from the business.  In fact, on the relevant date (20 March), the takings had been taken to the bank earlier in the day by Mrs Yesilada's daughter.  
9.	The accused had themselves been under surveillance by the police during the same period.  As Mrs Yesilada drove onto her drive, she was followed by two police vehicles, from which officers emerged and detained and arrested Ajibulu and Webster from their hiding place.  Ozer and Adamson were not in the lane, but were in Webster's vehicle, which had been seen to follow Mrs Yesilada from her place of work.  Their vehicle was stopped by police as it went to the location thought to be the location at which they planned to meet Ajibulu and Webster after the robbery.  
10.	The appellant Wells was not part of the events that evening, but had been present and taken part in the planning and preparation of the robbery over the preceding weeks.  He had been involved in watching and following the Yesiladas, and he was arrested two days later.  
11.	During the trial there was little dispute about the surveillance evidence.  The prosecution also placed reliance on an analysis of billing records from mobile phones seized from the defendants to show contacts between them at the material times, and also relied on recordings taken from a probe which had been inserted in Ajibulu's vehicle, and recorded conversations for several hours on the day of the proposed robbery.  
12.	Wells denied that he had ever been party to any criminal enterprise, whether an agreement to rob or an agreement simply to steal.  He did not give evidence in the course of the trial.  Ozer gave evidence and was cross‑examined.  He accepted being good friends with Wells and having known him for three to four years.  
13.	It is not necessary to describe the surveillance evidence in great detail.  There is no doubt that the appellant was involved in that.  He was the owner of a Ford Focus motorcar, and that, on Friday 27 February, was driven in Waltham Chase by Wells with Ozer as his passenger.  
14.	On 6 March there was a text message in the early evening from Wells' phone to Ozer's phone and a voice call the other way.  A little later there were two voice calls from Ozer's phone to Wells' phone.  Wells was seen driving his vehicle in the centre of Waltham Cross and Ozer was observed as his front‑seat passenger.  Later that evening on 6 March there was a telephone call from Ozer's phone to Wells' phone.  
15.	On 13 March, Wells' vehicle was parked in Waltham Chase during the afternoon of Friday the 13th.  Wells' phone had made three voice calls to Ozer's and there was one call in return.  In the early evening Wells was observed driving his vehicle, and when another vehicle approached, he ducked down into his car.  There were further messages between Ozer and Wells.  The vehicle moved off at 8 o'clock, which was the same time as Mrs Yesilada was arriving at Baas Lane.  A phone call from Wells to Ozer followed shortly afterwards.  
16.	Save that earlier in the day there were phone calls, Wells was not involved in the activities of 20 March.  The prosecution did not challenge evidence that on that day, the day of the events which we have described, he had attended a farewell drink for a work colleague, and that was followed by his giving colleagues a lift home from the party.  Later in the evening he attempted to contact Ozer and then Ajibulu, both of whom had by that time been arrested.  
17.	The submission made by Mr Selby on behalf of the appellant Wells arises out of the addition of the second count to the indictment.  That, submitted Mr Selby, was the cause of the difficulties which arose at the trial.  He submits that once the second count was added, the prosecution were necessarily submitting that there were two separate agreements, one a conspiracy to rob and the other a conspiracy to steal.  
18.	There was a real danger, submits Mr Selby, that the jury would convert what they were considering as an agreement to steal into an agreement to rob.  That danger, it is submitted, was highlighted by the direction given to the jury by the learned judge.  There were written directions following submissions on the subject from counsel.  Mr Selby relies on the first paragraph of that written direction:  
"As a preliminary, you must be sure of the following two matters: 
1.  that there was a plan to steal cash belonging to the Yesiladas;
2.  that the defendant in question was at some stage in the indicated period a party to that agreement.  Neither Ozer nor Adamson disputes that, since both have pleaded guilty to count 2.  In the case of Wells, however, that is in dispute."  
19.	The submission is that, with that starting point, the agreement to steal might be converted by the jury into an agreement to rob.  Reliance is placed on the decision of this court in Barnard [1980] 70 Cr App R 28 (Lawton LJ presiding).  We refer to the headnote:  
"A conspiracy to commit theft could only be committed if the course of conduct to be pursued would necessarily involve the commission of the theft in accordance with the intention of the conspirators.  In the instant case, as a conspiracy to steal was not a lesser form of a conspiracy to rob but a different agreement, the evidence of the conspiracy to rob had no relevance to a conspiracy to commit theft.  Accordingly, as the appellant's case had been undermined by the trial judge allowing the evidence of the robbery to go before a jury and thus enable them to infer that the scheme had not been abandoned, whereas he should have directed them to ignore that evidence, the jury had been misdirected and the appeal would be allowed and the conviction quashed."  
20.	Lawton LJ stated at page 33: 
"It also follows that the evidence of the overt acts pursuant to the conspiracy to rob had no relevance to the conspiracy to steal, because they showed an intention by those who carried out the agreement to rob to do something other than follow the intentions of those who had started by agreeing to steal. 
We note the court's finding in that case that the case of conspiracy to steal was not put as a lesser form of a conspiracy to rob, but as a different agreement.  
21.	On behalf of the prosecution, it is submitted that, when adding the second count to the indictment, the prosecution made no concession that factually there were two conspiracies.  Count 2 was added to allow the defendants to address that possibility, having pleaded guilty to conspiracy to commit theft.  The prosecution did not argue that a conspiracy to steal could be converted into a conspiracy to rob.  The defence case was that there were two agreements.  The prosecution case was that there was a single agreement, a conspiracy to rob.  Two defendants had of course pleaded guilty to such a conspiracy, and the two who had pleaded guilty to the conspiracy to steal were found guilty by the jury of the conspiracy to rob.  
22.	The judge, in the course of the summing‑up of Ozer's evidence, put the nature of the defence clearly to the jury on page 70: 
"So I come then to Mr Ozer's account to you of what happened.  He said to you, 'I was arrested for conspiracy to rob, but what I was a party to wasn't that.  It was to steal ... We weren't looking to rob anyone.  It wasn't left in the boot so we were waiting for the chance for the money to get left in the boot.'"  
23.	At page 71: 
"[Ozer] accepted of course that Mr Ajibulu and Mr Webster had pleaded guilty to rob, but he said to you, 'My agreement was a conspiracy to steal and I know the difference', and he explained the difference.  
And he said to you, 'I never agreed any force should be used.  I mentioned no force being used when we spoke about this in the beginning.  It was just going to be breaking into the car and grabbing the bag while nobody was there.  When we first spoke about it we were all together.  I said to them there ain't going to be a robbery, its going to be a theft and there's no violence to be used at all.  I said that because I know if you get caught for robbery, there's a difference in sentence.'"
24.	Thus, not only the defendant Ozer, but the jury, were perfectly well aware of the cases being put by the prosecution and by the defence.  For the prosecution, there was a single conspiracy between the five men.  It was a conspiracy to rob.  For the defendants Ozer and Adamson:  
"We only made a conspiracy to steal.  If Ajibulu and Webster then made some other agreement, we are not responsible for that."  
25.	In the circumstances as described, that was clearly a difficult defence to run having regard to the manner in which the vehicle driven by the victim was to be approached, and the intention to take the money from it.  Nevertheless, it was entirely appropriate that the defendants Ozer and Adamson should be permitted to run that defence, and they were given an opportunity to do so.
26.	We have been referred to the remainder of the written directions and to passages in the summing‑up to consider whether the risk on which Mr Selby relies was present, and whether there was a danger that the jury would fall into the trap suggested.  We regard reliance on Barnard as misplaced.  That was a quite different situation.  On the evidence admitted, there was in that case plainly a risk of confusion between the one agreement and the other.  In this case, the defendants attempted to say that there were two agreements.  The prosecution said that there was one and no evidence was admitted to blur that case.
27.	We refer to certain parts of the summing‑up.  The judge was entitled to tell the jury that they should consider the charge of conspiracy to rob and that in relation to a particular agreement, it may either be an agreement to rob or it may be an agreement to commit theft.  The jury were, in our judgment, fully alerted to that and to the defence which the other two defendants sought to put forward, on which of course the appellant Wells was entitled to rely.  
28.	We refer to the last two paragraphs of the written directions:  
"If, for example, you were to conclude that it is reasonably possible that Webster and Ajibulu privately agreed between only themselves that they would use force or threaten force to a person to effect the planned theft, in what might be termed an extension of their own of the original plan, to which a defendant on trial here was not a party and to which he had not agreed, then that defendant will not be guilty of the conspiracy to rob.  
A defendant here can be convicted of conspiracy to rob only if the prosecution has made you sure that the defendant intended and had agreed with any of the others named in the count that force or threat of immediate force to a person would be used, if necessary, to steal the expected cash from Mrs Yesilada." 
29.	In our judgment, that was an admirable way of putting the case to the jury.  
30.	Mr Selby also referred to page 14 of the summing‑up: 
"Has the prosecution made us sure in the case of Mr Ozer and in the case of Mr Adamson, and in the case of Mr Wells, considered individually, that that individual was party to a conspiracy to rob, not merely to steal?  And in Mr Wells' case, if we are not sure that he was a party to the conspiracy to rob alleged, has the prosecution at least made us sure that Mr Wells was party to a conspiracy to steal?" 
31.	At page 13: 
"... you're not being asked, members of the jury, to find Mr Wells guilty on both these counts, because there's no point.  So ... you consider count 1 in Mr Wells' case, it being as you follow a more serious charge.  If you find Mr Wells guilty of count 1, there's no need in those circumstances for you to go on and return a verdict on count 2 at all."  
32.	That might leave the jury, submits Mr Selby, into falling into the trap of converting a conspiracy to steal into a separate conspiracy to rob.  
33.	Mr Wilshire relies on other passages to emphasise the clarity with which the summing‑up, as well as the latter part of the written direction, states the position.  Mr Wilshire accepts that it is required of the judge, where there is a count of conspiracy to rob and a count of conspiracy to steal which are founded on different arguments, to ensure that the jury are clear that the counts reflect separate agreements.  That does not prevent, he submits, the jury, when considering a particular agreement, to decide whether that agreement is a conspiracy to rob or a conspiracy to commit theft.  
34.	Mr Wilshire refers to a further direction by the judge, having referred to the guilty pleas: 
"It does not prove that either Mr Ozer or Mr Adamson was a party to a conspiracy to rob as opposed to a conspiracy simply to steal, as each of them admits and contends.  Nor does it prove that Mr Wells was a party to any criminal conspiracy, whether to rob or to steal.  The questions for you in this trial remain, 'Has the prosecution made us sure in the case of Mr Ozer and in the case of Mr Wells, considerable individually, that that individual was party to a conspiracy to rob, not merely to steal?  And in Mr Wells' case, if we were not sure that he was a party to the conspiracy to rob alleged, has the prosecution at least made us sure that Mr Wells was party to a conspiracy to steal?" 
35.	At page 19: 
"... you must be sure of the following two matters.  Number one, that there was a plan to steal, that is steal cash belonging to the Yesiladas.  Now that, I anticipate in the light of what you've heard, isn't going to trouble you overmuch.  Secondly, you must be sure that the defendant in question was at some stage in the indicted period a party to that agreement.  And neither Mr Ozer nor Mr Adamson disputes that, and as you know both of them have pleaded guilty to count 2.  In the case of Mr Wells, however, that is in dispute.  To convict any defendant of conspiracy to rob as alleged in count 1, you have to go on to consider the following additional matter.  Number three, are you sure that the defendant in question intended and had agreed that force or threat of immediate force to a person would be used if necessary to get the bag of cash Mrs Yesilada was expected to have with her when she arrived home." 
36.	We see nothing dangerous in that way of putting it.  It was a logical approach, and one which, in our judgment, did not carry the dangers which Mr Selby contemplated.
37.	It is necessary to consider the evidence and the summing‑up as a whole.  We can find no fault either in the procedure followed or in the careful directions which were given to the jury.  We see no danger of confusion on the jury's part.  It does not necessarily follow, as alleged by Mr Selby, that irreparable difficulties are created once, in circumstances such as the present, a second count is added.  The prosecution always alleged that there was a single agreement, and that it was an agreement to rob, leaving to the jury the option of considering that that single agreement was not an agreement to rob, but an agreement to steal. 
38.	It is right that the other two defendants had been given the opportunity of alleging that there were two separate agreements, in the more serious of which they were not involved, but we consider the judge dealt with the situation admirably.  We have no doubts about the safety of this verdict, and accordingly the appeal is dismissed.
39.	We turn now to the appeal against sentence of the other defendant mentioned, Ozer.  It is not necessary to repeat the facts.  We have set them out in considerable detail when considering Mr Wells' appeal against conviction.
40.	We would like to add at this stage that all three counsel in this case have presented their cases admirably, carefully and helpfully.  On behalf of the appellant Ozer, Mr Carr submits that the judge was in error in three respects when sentencing Ozer, who is now 22 years old: she made no reference to the appropriate guidelines; she was under the impression that, because the offence was a conspiracy to rob, the guidelines did not apply; thirdly, it is submitted there was an unjust disparity between the sentence imposed on Ozer and the sentences imposed on the other defendants.  
41.	When sentencing Ozer and the other defendants, HHJ Catterson referred to the nature of the offence.  Addressing the defendants, she stated: 
"You thought, entirely erroneously, that on Friday evenings Mrs Yesilada was in the habit of bringing home with her from work a large sum of cash from the business." 
42.	In our view, the judge was entitled to infer that the intention was to steal a large sum of money.  Friday was the day when it would be expected that the weekly takings may well be taken home at the end of the business week.  The judge stated: 
"The intended robbery was carefully planned and involved detailed preparations over a significant period of time."  
43.	She described the surveillance, which we have already summarised.  She referred to the impact of the offence on Mr and Mrs Yesilada:  
"They had no inkling of what was afoot but since of course they have learned not only of the police operation but of your activities.  Their children were in the house at the time.  Mrs Yesilada had to be, of course, for her own safety, kept by a police officer in her car until it was safe for her to proceed into her house." 
44.	The judge referred to the impact statements:  
"It has inevitably undermined the family's sense of security at home and has driven Mr and Mrs Yesilada to have to consider moving."  
45.	Of course, we shall never know, and happily we shall never know, what would have happened had the police not conducted their surveillance and pursuit in the efficient manner they did.  The judge stated: 
"As a matter of realities, none of you could have predicted accurately how your victim might react to being very severely frightened.  Sometimes extreme fear causes a victim to fail to comply with criminal demands or not to do so quickly enough.  In that situation who knows what might have happened when the adrenalin was pumping.  I am satisfied that this robbery was to be effected by fear and by threats, but if it came to it some measure of brute force if that proved necessary.  I think it right to say that there is nothing to suggest to me that any more force than absolutely necessary would have been used but it was, I find, within everyone's contemplation that that might occur." 
46.	He addressed Ozer first:  
"You were convicted by the jury of conspiracy to rob.  Having heard the evidence in the trial I am clear that whether or not you were the original instigator of it, whether in other words it was your bright idea in the first place, you were certainly its prime mover, organising its preparation and taking the lead role, calling the shots throughout the weeks that this plot was in being.  You are 21 now, you have appeared before the courts in the past on nine previous occasions for I think some 15 offences in the last five years but it is right to say nothing at all approaching this level of criminality." 
47.	In stating that the appellant Ozer was the prime mover, the judge had the advantage of having conducted the trial, and she was entitled on the evidence to find that it was Ozer who had taken the lead role in the conspiracy and the events described.
48.	Counsel has referred the court to the guidelines.  We do not propose to analyse them in detail.  The judge did not refer to them, but the judge could not be criticised, in our view, for treating this as a level 2 offence.  She had to bear in mind the aggravating features, the very careful planning and the number of people involved.  
49.	Mr Carr has referred the court to Attorney General's Reference No 147 of 2006 [2007] EWCA Crim 961.  That was a case in some respects more serious than the present one, in that a kitchen knife with a 12‑inch blade was brandished and the victim driven to a secluded place.  The court took the opportunity to consider the appropriate range of sentences for robberies of this kind.  Latham LJ stated at paragraph 17: 
"In our judgment it falls within a sentencing range of six to ten years (and maybe more for the ring leader).  If that is applied as the range appropriate for this offence, it seems to us that for the purposes of determining the correct sentence for this offender account must be taken of the judge's assessment of him and his culpability in relation to this offence.  The judge considered that the offender was vulnerable to being manipulated by more sophisticated offenders.  It is therefore appropriate it seems to us to reflect that conclusion in what we consider to be the appropriate bracket for this offender, which would be six to eight years." 
50.	Thus there were mitigating as well as aggravating features in that case, and unlike the appellant Ozer, the defendant in that case was not the ringleader.  The court imposed a sentence of six years in that case, increasing that imposed by the trial judge.  There was of course an allowance for double jeopardy in that figure.  
51.	In our judgment, the sentence of six and a half years imposed in the present case following a trial and a finding that the appellant was the ringleader is not out of scale.  
52.	Reference was also made to the case of Rickets [2001] EWCA Crim 518, Mance LJ presiding.  In that case, where a theft involving takings at a greyhound stadium amounting to £635 was involved, and there were previous convictions for robbery, the court reduced the sentence from five years to one of four years.  
53.	Having regard to the features we have described, and to the more up‑to‑date approach to the offence of robbery, we do not consider the sentence imposed by the judge to be out of scale.  It was a severe sentence.  We find no merit in the disparity argument.  Two men who pleaded guilty were sentenced to four and a half years, though the discount for guilty plea was a small one because of their late pleas.  
54.	In our judgment, the defendants, including Wells, who received substantially lower sentences, were in a different category.  Wells was not present in the evening of the proposed robbery, and the other man was a late addition to the team and had not been involved throughout the period we have described.  
55.	The appellant could expect a longer sentence than the defendants Ajibulu and Webster, notwithstanding their presence at the scene, because he was the prime mover and because he had no credit for a guilty plea.  
56.	We have come to the conclusion that the sentence of six and a half years was not manifestly excessive and accordingly the appeal is dismissed.