Neutral Citation Number: [2012] EWCA Crim 2517
Case Nos: 201200409 D3
201200859 D3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT INNER LONDON
His Honour Judge Seed
T20107740 & T20117189
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 27 November 2012
Before :

LORD JUSTICE MOORE-BICK
MR JUSTICE COLLINS
and
HIS HONOUR JUDGE COOKE Q.C.
(sitting as a judge of the Court of Appeal, Criminal Division)
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Between :

	THE QUEEN	Respondent	
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	ISMAIL ABBAS
and
PATRICK ASAFU-ADJAYE	Appellant

Applicant	

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Mr. James Scobie Q.C. (instructed by Registrar of Criminal Appeals) for the appellant
Mr.  Simon Wild  (instructed by Crown Prosecution Service) for the respondent
Mr. Michael Chambers (instructed by Registrar of Criminal Appeals) for the applicant

Hearing date : 8th November 2012
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Judgment

Lord Justice Moore-Bick : 
1.	On 16th December 2011 in the Crown Court at Inner London before His Honour Judge Seed the appellant Ismail Abbas was convicted of two offences of robbery (counts 1 and 3 in the indictment) and one offence of possessing an imitation firearm at the time of committing an offence (count 2). On the same occasion before the same judge the applicant Patrick Asafu-Adjaye was convicted of one offence of robbery, being the offence charged in count 1.
2.	Abbas was sentenced to a total of 11 years’ imprisonment. Asafu-Adjaye was sentenced to 4½ years’ imprisonment. In each case the judge ordered that 28 days spent in custody on remand should count towards sentence.
3.	Four others were charged on the same indictment, of whom it is necessary to mention only two: the first, Melvin Okeny, was convicted on Counts 1 and 2 and was sentenced to a total of 5½ years’ detention in a Young Offender Institution, a sentence which included a consecutive sentence of 6 months’ detention imposed for four offences of Possessing a Class A Drug with Intent; the second, Joshua Graham-Hanlan, was charged on count 1 as being in league with the robbers, but was acquitted.
4.	Abbas now appeals by leave of the single judge against his conviction on count 2, which charged him with possession of an imitation firearm at the time of committing an offence. He also applies for an extension of time of approximately 7 months for leave to appeal against sentence. The Registrar has referred those applications to the Full Court. Asafu-Adjaye now renews his application for leave to appeal against sentence following refusal by the single judge. 
5.	The offence which formed the subject of counts 1 and 2 in the indictment was committed on Sunday 4th July 2010 at a T-Mobile shop in Peckham. The Deputy Manager, Ashley Murray, arrived for work between 9:15 and 9:30 that morning. The co-accused, Joshua Graham-Hanlan, arrived shortly after. Murray took Graham-Hanlan into his office to discipline him for persistent lateness when the buzzer at the back door of the shop sounded. Murray assumed that it was one of the other employees arriving late and he asked Graham-Hanlan to answer the door. Murray followed him to the door. Graham-Hanlan opened the door without first checking through the spy-hole and three hooded men burst in. They bundled Murray into the stock room and pushed him to the floor where he was held face down by one of the men. He was kept there throughout the robbery apart from a short period when he was made to get up and open the safe. Murray said that something that felt like the barrel of a gun had been held to the back of his head while he was lying on the floor. 
6.	The intruders stole 70 Blackberry smartphones from the stock room and a quantity of cash from the safe. They also stole Murray’s and Graham-Hanlan’s watches. As soon as the robbers had left Murray pressed the panic alarm and told headquarters that there had been an armed robbery. 
7.	There was a CCTV recording of the shop’s car park which showed a car entering just before the robbery and leaving just after it. The quality of the recording was not good enough to enable the registration number of the car to be identified, but the image was consistent with its being a silver-grey Mazda 323 LXI (registration H937 HLF) which police saw Abbas locking and unlocking on 27th July 2010. On 28th July the car was used in the robbery of a Texaco petrol station that formed the subject of count 3 of the indictment. It was found abandoned in August 2010 near to where Abbas lived in Streatham. There was evidence that were only three silver-grey Mazdas of that model registered in London, one of which had been off the road at the time. 
8.	Cell site phone evidence from the morning of the robbery tended to show that Abbas had travelled from his home in Streatham that morning to somewhere in the vicinity of the T‑Mobile shop. At 9:30 am his phone received a call from Okeny’s phone which was also in the vicinity of the shop. 
9.	The offence that formed the subject of count 3 in the indictment was committed on 28th July 2010. At about 8:15 that morning there was a robbery of a Loomis security van carrying cash at a Texaco petrol station near Streatham Common. Two men armed with hammers attacked the security guards and stole £25,000 and a company mobile phone. One of the guards was struck on the head and the thumb during the course of the robbery. The two robbers got into a car driven by a third man. A Mazda car subsequently found abandoned near Abbas’s address could be linked to the robbery by the fact that its front window had been smashed by one of the security guards during the getaway. In addition, the stolen Loomis mobile phone was found in the vehicle.
10.	Abbas was arrested on 2nd November 2010. No weapons or other items connected with criminal activity were found either at his home address or at a business address with which he was connected.
11.	In due course Abbas was convicted of taking part in both robberies and of possessing an imitation firearm at the time of committing the robbery of the T‑Mobile shop. Asafu-Adjaye was convicted of participation in the robbery of the T‑Mobile shop. It was accepted that at the time of the robbery he had been  at university in Hertfordshire and he was not charged with possession of an imitation firearm.
12.	The single judge gave Abbas leave to appeal against his conviction on count 2 alone on the basis of grounds settled by counsel who had appeared for him at trial. Those grounds are not entirely easy to understand, but in substance they allege that the judge misdirected the jury on the principles governing joint enterprise as they applied to the charge of possession of the imitation firearm. There was no direct evidence that Abbas had been one of those who entered the T-Mobile shop, although there was evidence tending to show that he had been in the vicinity at the time of the robbery and had been in contact with another of the accused. The Crown’s case was that Abbas was a party to a joint enterprise robbery which had involved the use of an imitation firearm, for which he was fully responsible together with the others. His case was that he had done no more than provide the car. He said that he had not known that a weapon of any kind would be produced. 
13.	When the judge directed the jury he explained the nature of a joint enterprise and told them that, provided they were sure that any particular accused had been a party to a plan to rob the shop, it did not matter whether he had been one of those who had actually entered the premises. That was correct, but when it came to the use of the imitation firearm (assuming the jury were sure that an imitation firearm had been used) the position was more complicated. Abbas said that he had had no idea that a weapon of any kind would be carried, so before the jury could convict him they had to be sure that he knew that one of the robbers was carrying such a weapon. Unfortunately, when giving directions on this part of the case the judge failed to refer to the need for knowledge on the part of Abbas. That is the point on which leave to appeal was given. However, Mr. Scobie Q.C., who now appears for Abbas, did not feel able to pursue that ground in the light of what had subsequently occurred in the course of the trial.
14.	During their deliberations the jury sent the judge a note asking whether it was necessary for a person to have been in the vicinity of the shop in order to be found guilty on count 2.  The judge directed them as follows:
“If you are satisfied so that you are sure that there was an imitation firearm in the possession of the people who carried out the robbery, then if you are satisfied so that you are sure that anybody who was involved in the joint enterprise in count 1 knew that an imitation firearm was being used in the robbery, then that person can also be guilty of count 2 wherever that person was, providing the person is part of the joint enterprise in count 1 and knew that there was an imitation firearm being used, if you are satisfied so you are sure that one was being used, then that person can, in fact would, be guilty of count 2, but it is a matter for you.”
15.	After that, whatever the deficiencies in the original direction, we think that the jury can have been left in no doubt that they could convict Abbas on count 2 only if they were satisfied, first, that he had been a party to a joint enterprise to commit the robbery and second, that he knew that an imitation firearm was being carried. In those circumstances we are of the view that Mr. Scobie was right not to pursue this ground.
16.	However, another aspect of the summing up has given us cause for concern, namely, whether there was evidence from which the jury could properly infer that Abbas knew that an imitation firearm was being carried and, if so, whether the judge gave the jury sufficient help in identifying what that evidence was. Having heard submissions from Mr. Wild and Mr. Scobie we decided to give the appellant leave to amend his grounds of appeal to raise these questions.
17.	We invited Mr. Wild to identify the evidence upon the basis of which it was open to the jury to infer that Abbas knew that an imitation firearm was being carried. He was not able to direct our attention to any specific material but was able to rely only upon the evidence of ownership of the car and the cell site analysis to which we have already referred. That was adequate to establish a significant role in the preparatory stage of the robbery, but it did not amount to a firm basis for inferring that he knew that an imitation firearm was being carried. It needs to be stressed that even if Abbas had provided the car knowing that a robbery was to be committed and knew that some sort of weapon or imitation weapon might be carried, that would be an insufficient basis for a conviction on count 2 which charged him with possession. There was CCTV evidence available, but not such as to establish that Abbas was present at a time when he must have seen the imitation firearm and the cell site evidence could not, of course, establish that. 
18.	Where knowledge and proof of joint possession depends upon the drawing of an inference, as it did in this case, we consider that it is incumbent on a judge in summing up to identify the evidence of primary fact upon the basis of which, if it is accepted, a jury might infer knowledge and thus possession. The judge failed to do that and it is not possible to ascertain how the jury may have reached their decision. That state of affairs, coupled with the prosecution’s, and indeed our own, inability to identify a clear and firm basis for the inference of knowledge that an imitation firearm was being carried has driven us to the conclusion that the conviction on count 2 is unsafe. In the particular circumstances of this case, proof of a significant preparatory role and of travel to the vicinity of the robbery does not provide an adequate basis for inferring that the appellant knew that an imitation firearm was being carried. 
19.	That conclusion obliges us to consider the sentence passed on Abbas. We therefore grant the necessary extension of time and leave to appeal against sentence in his case. The sentencing judge imposed no separate penalty in relation to the possession of the imitation firearm but treated it as an aggravating feature in the robbery. In our judgement it makes little difference. This was clearly a robbery in relation to which it was reasonable to infer that at least the threat of serious violence was a feature. Against that background a reduction in sentence on count 1 of one year is all that is called for. To that extent only the appeal against sentence by Abbas succeeds, reducing the total sentence upon him to 10 years.
20.	The applicant Patrick Asafu-Adjaye seeks leave to appeal against sentence on the grounds that the judge took too high a starting point in his case, having regard to the limited nature of his involvement, and that there is objectionable disparity between the sentence passed on him and that passed on the co‑defendants.
21.	This applicant stood to be sentenced on count 1 only. That is important, not only because he was to be sentenced in respect of only one of the robberies  but also because he was not charged with, and therefore was not convicted of, being in possession of the imitation firearm. However, the other aggravating features of the offence are present in his case.
22.	The robbery of the T-Mobile shop was clearly a level 2 offence, but we have been urged to view it in the context of the particular part played by this applicant and his personal mitigation. We think that is right in principle, but it raises the difficulty of deciding the nature and importance of the applicant’s role. As far as that is concerned, we have to bear in mind that the judge, who had presided over the trial, was particularly well placed to decide questions of that kind. He obviously considered that the applicant’s role was of sufficient importance, and the aggravating features of the offence of such significance, that a sentence somewhat higher than the starting point of 4 years’ imprisonment was appropriate.
23.	The applicant could not claim credit for a guilty plea, but he was able to rely on a good deal of personal mitigation. He admitted to the author of the Pre-sentence Report his involvement in the offence, which appears to have been limited to acting as a link between Abbas and others involved in the robbery, although there were inconsistencies in his account and the judge clearly thought that he was doing his best to minimise his role. Nonetheless, the author of the report described him as naïve and, more importantly, as exceptionally remorseful.
24.	The applicant was of previous good character and at the time of the robbery had been in higher education with the promise of a good future ahead of him. He had hoped to qualify as an accountant, but whether he will be able to pursue his ambitions in that respect may now be open to doubt.
25.	In our view, having regard to the nature of the offence as we have described it, a sentence of 4½ years’ imprisonment was not of itself manifestly excessive. However, it is necessary to consider the question of disparity. It is difficult to draw any meaningful comparison between the sentence passed on Abbas and that passed on this applicant, not only because Abbas played a leading role, but also because he had to be sentenced for a second robbery. In his case the principle of totality came to the fore and may have influenced the judge’s decision to treat the possession of the imitation firearm as an aggravating feature of the first robbery and to impose no separate penalty in respect of it. That renders any meaningful comparison with the sentence passed on him all the more difficult, if not impossible.
26.	Okeny was sentenced to 5 years’ imprisonment for the robbery. The judge said he was significantly involved, but did not describe the precise nature of the part he had played. Although the jury were satisfied that he had been a party to the robbery, the judge does not appear to have been sure whether he was or was not one of those who had entered the shop. It is true that he had convictions for various offences, whereas the applicant was of previously good character, but none were of any great significance in the context of an offence of this kind.
27.	In our view the most important factor in determining the proper length of sentence was the nature and extent of the applicant’s involvement. Having regard to the judge’s findings, we do not think that there are real grounds for saying that there is objectionable disparity between the sentence passed on him and that passed on Okeny. Accordingly, the application must be dismissed.