Neutral Citation Number: [2004] EWCA Crim 2999
Case No: 200401025 C3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LEEDS
His Honour Judge MacGill
Ref: 200401025C3*1
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday 25th November 2004
Before :

Lord Justice Rix
Mr Justice Poole
Mr Justice Stanley Burnton
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Between :

	The Queen		
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	Robert Stanford Hylands		

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Dr David Thomas appeared on behalf of  the Appellant
Jonathan Devlin appeared on behalf of the Crown

Hearing date : 4 November 2004
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Judgment

This is the judgment of the Court : 
1.	On 4 November 2004 we heard argument on the appeal of Robert Hylands against the sentence of life imprisonment imposed 2 August 2002 by HH Judge MacGill at Leeds Crown Court under section 109 of the Powers of Criminal Courts (Sentencing) Act 2000 following his conviction, on the same date by a jury and before the same judge, of an offence of robbery. Section 109 was considered to apply because 12 years earlier, on 9th March 1990, the appellant had been convicted of robbery and wounding with intent, for which he had been sentenced to 13 years’ imprisonment.

2.	This is the judgment of the Court on his appeal.

3.	The facts of the offence of which he was convicted on 2 August 2002, as appeared from the evidence before the jury, are as follows. In the early evening of Friday 21st January 2000, Anthony Parrish left his home believing a taxi for which he was waiting had arrived. He was approached by the appellant and a man called Michael Murphy who were dressed in police uniform. One asked to search Parrish’s home for a man called Priestley. Murphy produced a sawn-off shotgun and the appellant a lump hammer. They threatened Parrish and took Parrish and his 12-year-old son back inside the house. Parrish’s Rolex watch, valued at £15,000, was taken. Access to the safe was demanded and Parrish was threatened. In front of Parrish and his son the shotgun was broken open to show that it was loaded, and there were threats that holes would be blown in Parrish if he did not co-operate, and that the hammer would be used to break his kneecaps.

4.	As Parrish was being accompanied by Murphy back outside to find some tools to enable them to open the safe, the taxi that Parrish had earlier ordered arrived. Parrish took the opportunity of the distraction of the taxi to grab the gun Murphy was holding. The gun discharged twice and Murphy then ran off, the getaway car having been boxed in by the taxi.

5.	Parrish went back inside his home with the gun which Murphy had discarded. There followed a struggle with the appellant, who managed to get the shotgun back from Parrish. The appellant hit Parrish about the head twice before running off.

6.	The appellant’s thumbprint was later found on a matchbox in a bag in the rear of the abandoned car, which had been bought 4 to 5 hours before the robbery. A policeman’s jacket, stolen in 1998, was found near to the discarded shotgun in a nearby field. On the jacket there were two sites of saliva and one site of blood. Two belonged to Parrish, and the third site (saliva), on the right shoulder of the police jacket, produced a DNA profile matching the appellant.

7.	The appellant was arrested on 1 March 2002. When interviewed he denied being involved in the robbery. He was unable to account for the findings of his fingerprints or his DNA. He said he had been shown the police jacket by a friend some two years earlier, but otherwise could not account for his saliva being identified on the recovered jacket.

8.	The issue before the jury was whether the appellant was the robber other than Murphy. By their verdict, the jury found that he was.

9.	Passing sentence, the judge summarised the facts of the robbery. He said that the appellant had done everything possible to avoid conviction. There was no remorse, and obviously no credit for a guilty plea. Murphy was tried separately so Parrish had to give evidence twice. He had a previous conviction for robbery in 1990 which included the use of a firearm. Because of section 109 Powers of the Criminal Courts (Sentencing) Act 2000 he fell to receive a sentence of life imprisonment. There were no exceptional circumstances. He was a callous, calculated and extremely dangerous criminal, prepared to take a firearm to enable him to achieve his objectives. But for the application of section 109, the determinate sentence would have been 14 years. 

10.	No issue was raised before the Crown Court as to the facts of the robbery, other than the identity of the second robber. On the basis of the undisputed evidence before the Crown Court, it was clear that there had been a joint venture involving the use of a firearm, and that accordingly both robbers had been in joint possession of the firearm during the commission of the robbery. On that basis, section 109(5)(h) applied to the appellant, and it was on that basis that the judge imposed the sentence of life imprisonment. The appellant was represented by experienced counsel.  At no time during the trial, nor before sentencing, when the trial judge expressly raised with counsel the application of section 109, was it suggested that, if the appellant was the second robber, there was any issue as to his joint possession of a firearm during the robbery of which he was convicted.

11.	The indictment before the jury did not include a separate count of possession of a firearm. There was therefore no specific verdict of the jury that the appellant had been in possession of a firearm during the commission of the robbery. Nor did the appellant or his counsel on his behalf expressly admit that fact: he could not do so, since his defence, which the jury found to be untrue, was that he was not one of the robbers.
12.	Dr Thomas submits that in these circumstances this Court must quash the sentence imposed under section 109. He contends that the effect of the decision of this Court in R v Benfield and Sobers [2004] 1 Cr App R 8 (p. 109) and [2004] 1 Cr App R (S) 52 (p. 307) is that if the second serious offence required by section 109(1) is an offence mentioned in subsection (5)(h), a sentence of life imprisonment may only be imposed if the defendant admits that he was in possession of a firearm during the commission of the robbery or if the jury specifically so finds by its verdict. Mr Devlin submits that there is and could be no doubt in this case that the defendant was in joint possession with Murphy of a firearm during the commission of the robbery of which he was convicted; that the jury must have so found and the judge did so find expressly; and that the sentence under section 109 was properly imposed.

13.	Apart from authority, we would not find Dr Thomas’s submission obviously well-founded. The appellant had the opportunity to challenge the evidence concerning the possession and use of the shotgun during his trial. No relevant issue was raised by him either before the jury or before sentence. His counsel made no submission to the effect that section 109 was inapplicable, notwithstanding that the judge raised the matter. We accept Mr Devlin’s submission that the jury would, if asked, have found, and that the judge expressly found, that the appellant had been in possession of the shotgun, jointly with Murphy, during the robbery.

14.	Furthermore, there is nothing in the Act to suggest that a specific verdict or admission is required. Indeed, there are indications to the contrary. As appears from the wording of section 109, and is confirmed by the judgment of this Court in Benfield and Sobers at [12], paragraph (h) does not create an offence of robbery with possession of a firearm: the offence referred to is robbery; if at some time during its commission the offender had in his possession a firearm, he committed a serious offence for the purposes of section 109(1). Of course, the question arises as to how that possession is to be established. It might be argued that Parliament could not have intended it to be necessary to charge carrying a firearm with criminal intent, since that offence is stipulated in paragraph (g), and if it were so necessary paragraph (h) would be otiose. Nor is it likely that Parliament envisaged that juries would return special verdicts. The earlier conviction for a serious offence referred to in section 109(1)(b) may have occurred before 1 October 1997, when no one would have appreciated that there was a need for a special verdict, since there was then no equivalent of section 109. Parliament must therefore have envisaged that the fact that the robber had in his possession a firearm during the commission of his earlier offence was to be determined either from the evidence before the jury or the facts found by the judge as set out in his sentencing remarks. And if that is the case in respect of an earlier paragraph (h) serious offence, it is not obvious why different requirements should apply to a conviction after 30 September 1997.

15.	Furthermore, it is a normal part of our criminal procedure for facts relevant to sentence to be determined by the trial judge, in so far as there has not been an express finding by the jury, either on the basis of the evidence at trial, or, if there is an issue raised on a plea by a Newton hearing. In some cases Parliament has required the judge to make such findings. We refer, by way of example, to the provisions of Schedule 21 of the Criminal Justice Act 2003. If a defendant does not admit the possession of a firearm during the robbery in question, and a jury verdict is required for the purposes of section 109 of the 2000 Act, the obvious course is to add a count charging its possession to the indictment; but, as we have mentioned above, the necessity to do so seems to be inconsistent with the inclusion of paragraph (h) in subsection (5).

16.	We turn to consider the judgment of this Court in Benfield and Sobers. Lord Woolf LCJ said:
“13.	However, the fact that the position that arises in relation to section 109(5) is different from that which arose under the Sexual Offences Act does not mean that it is not important that a defendant should have the opportunity of obtaining the verdict of a jury if there is an issue as to whether or not he falls within section 109(5)(h). Where there is an issue, that issue will be determined in favour of the defendant unless he has been convicted of an offence which establishes that at the time of the commission of the robbery he was in fact in possession of a firearm, or an imitation firearm, or he unequivocally admits that that is the position.
14.	We consider that that is an outcome which is to be preferred to requiring the indictment always to contain an additional count of a firearm offence. If the indictment always had to include an additional offence of that sort then in practice section 109(5)(h) would add nothing to section 109(5)(g). Furthermore, it would mean that where an offender did not dispute that he had in his possession at the time of an offence a firearm or an imitation firearm, the indictment would have to be cluttered up with an extra count purely for sentencing purposes. Accordingly, we consider that it is only where there is an issue that that is required. We also consider that the fact that there is not an issue must be established to be abundantly clear from what happened in the court below. We recognise that this will mean inconvenience. In many cases it will involve looking carefully at the proceedings in the court before whom the appellant appeared. It will involve doing this not only with regard to the more recent offence (the later offence), but also in respect of the earlier offence to see if that offence is one which pursuant to section 109(5)(h) is a serious offence.
15.	In our judgment, where a defendant is at risk of being subject to an automatic life sentence, that fact should be properly determined. It should not be left in doubt. If there is doubt about the position, whether it is the subsequent or the prior offence which is in issue, the matter must be resolved in favour of the defendant. The fact of the matter is that the language of section 109 of the Act has from time to time given rise to difficulties because of the intention of Parliament that for a second offence there should be an automatic life sentence. However, legislation is now proposed which will amend the present provisions of section 109. Those new provisions will mean that the problem created by section 109(5)(h) is no longer with us. In the meantime the approach that we have indicated will have to be adopted.”

17.	The question then arises: in what circumstances is there an issue which requires an unequivocal admission or the verdict of a jury? Is it sufficient for the defendant to have pleaded not guilty to the charge of robbery of which he has been convicted, or must the issue as to his possession of a firearm be raised on his behalf and be the subject of a jury’s specific verdict? Benfield had pleaded guilty to robbery. He had admitted in his police interview possession of a firearm during the commission of the robbery. His admission was not withdrawn. It was not suggested on his behalf that his admission was mistaken. Nevertheless, Lord Woolf LCJ said:
“16.	In the case of Benfield Mr Hart, who was present in the court below, submits that it was clear beyond peradventure that there was no dispute. While we accept that that was the situation so far as the Crown was concerned, as those who appeared on behalf of the defendant in the court below apparently did not direct their minds to this issue we feel that the only proper approach to adopt is to treat the case as one where the requirement of establishing that the primary offence of robbery with which the court was concerned when sentencing this appellant was a serious offence was not satisfactorily established. Accordingly the consequence is that the life sentence which was imposed has to be set aside. The Recorder took the view that the proper determinate sentence should be one of eleven years’ imprisonment. We see no reason why that should not be the determinate sentence that we now impose and we accordingly do so.”

18.	Sobers had pleaded not guilty. His case resembled the present: he had participated in a robbery in which a firearm had been used, but it had been held by the other robber. The robbery was obviously a joint venture. There was no dispute that a firearm had been used: see Longmore LJ’s comment at [85] of the judgment of this Court on his application for leave to appeal, [2003] EWCA Criminal 1588. However, the Crown conceded before the Court on that application and at the hearing of his appeal against sentence that it was not established that section 109(5)(h) applied. Lord Woolf LCJ said:
“18.	The appeal of Sobers comes before us in unusual circumstances. It has already been before this court when the position with regard to other counts on the indictment was considered. This case involved a robbery which was alleged to be the second serious offence which was committed by the appellant Sobers and a co-accused. The co-accused had undoubtedly been in possession of a weapon. He had used the weapon, but as a club rather than as a gun. On the facts of that case Miss Marsh on behalf of the Crown accepts that it was not unequivocally established that section 109(5)(h) applied. As that subsection had not been established as applying, it was not appropriate for Sobers to be sentenced to life imprisonment as occurred. In his case the specified period was six years, which means that the appropriate determinate sentence would be twelve years. Mr Lithman, who appears on behalf of Sobers, accepts that that is the appropriate sentence. Accordingly the sentence of twelve years will be substituted for the life sentence which was imposed in the court below, which was the Crown Court at Norwich. The appeal will be allowed to that extent.”

19.	The Court accepted the Crown’s concession. It did so, we believe, on the basis of the earlier decisions of this Court in Eubank [2001] EWCA Crim 891, [2002] 1 Cr App R (S) 4, Murphy [2002] EWCA Crim 1324, and Flamson [2001] EWCA Crim 3030, [2002] 2 Cr App R (S) 48. 

20.	Eubank was not a section 109 case. The defendant had pleaded guilty to robbery. There was a dispute as to whether he had been in possession of a firearm. The trial judge held a Newton hearing and found that the defendant had been in possession of a firearm during the robbery, and sentenced him on that basis. This Court held that a Newton hearing was not an appropriate basis for so sentencing a defendant, and that a specific count should been added to the indictment. In other words, the defendant, if he denied his possession of a firearm, was entitled to a jury’s verdict on the issue. 

21.	Murphy was a section 109 case. In 1997 the defendant had pleaded guilty to an offence of robbery. The trial judge in a Newton hearing determined that he had been in possession of a firearm. It is unclear from the report whether the trial took place before or after 30 September 1997, when section 2 of the Crime (Sentences) Act 1997, the predecessor to section 109 of the 2000 Act, came into force. In 2000 he was convicted of robbery. The trial judge was satisfied on the evidence that he had been in possession of a firearm, and passed a life sentence under s 109. This Court followed Eubank and held that neither the 1997 offence nor the 2000 conviction was a conviction of a serious offence within the meaning of the 1997 Act: in both cases the defendant had been entitled to a jury verdict on the issue of his possession of a firearm. 

22.	Eubank was distinguished in Flamson. In Flamson the defendant had pleaded guilty to robbery. His counsel had expressly admitted on behalf of the defendant his possession of a firearm during the commission of the robbery. It was held that the express admission sufficed for the purposes of section 2 of the 1997 Act. 

23.	Murphy and Eubank are binding on us. They were referred to in Benfield and Sobers at [9]. Flamson was referred to at [10] and distinguished from Eubank on the ground of the express admission by counsel in that case. These cases explain the Crown’s concession in Sobers and this Court’s acceptance of it. Some at least of the arguments referred to at [14] and [15] above are inconsistent with these decisions.

24.	On this basis, section 109(5)(h) will only be held to apply if the defendant has admitted before the Court that he had a firearm in his possession during the robbery, or if the jury return a specific verdict establishing that fact. Neither occurred in this case.

25.	It follows that the sentence of life imprisonment must be set aside. The judge determined that the determinate sentence he would have imposed had section 109 not applied was 14 years. Dr Thomas did not suggest that that sentence was excessive. It will be substituted for the sentence of life imprisonment.
26.	The problems created by paragraph (h) of section 109(5) may not be with us for much longer. It is to be replaced by the provisions of Chapter 5 of the Criminal Justice Act 2003. All of the “specified offences” referred to in that Act and contained in Schedule 15 are cognate offences.

27.	Lastly, we point out that the circumstances in which a trial judge is not entitled to sentence on the basis of facts found by him on the evidence put before the jury and consistent with its verdicts, or in the case of a plea on the basis of facts determined by him in a Newton hearing, are restricted. The present decision is limited to the requirements of section 109(5)(h) of the 2000 Act, and should not be taken as authority for any wider exception to the procedure generally followed and accepted.