Daniel McAllister [2019] EWCA Crim 1419
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**Daniel McAllister** [2019] EWCA Crim 1419 concerned an appeal against sentence by a man convicted of causing an explosion, burglary and dangerous driving; the Court of Appeal dismissed the appeal against the length of the sentences but allowed it in part in relation to an unlawfully imposed driving disqualification.
Mr McAllister pleaded guilty at Lincoln Crown Court on 19 December 2018 before His Honour Judge Easteal to causing an explosion likely to endanger life or cause serious injury to property contrary to section 2 of the Explosive Substances Act 1883, burglary of a non-dwelling contrary to section 9(1)(b) of the Theft Act 1968, and dangerous driving contrary to section 2 of the Road Traffic Act 1988. He was sentenced to seven-and-a-half years’ imprisonment on count two, three years consecutive on count three, and 16 months concurrent on count four, making a total of ten-and-a-half years. He was also disqualified from driving for three years, to come into effect at the halfway point of sentence, with the mandatory extended driving test requirement. The appellant brought his appeal with leave of the single judge.
In the early hours of 19 September 2018 the appellant and two or three unknown others travelled in a stolen high-performance Audi car on false numberplates to Grantham. They used a circular saw to cut through the heavy duty security shutter of a Co-op store to gain access to the front of an ATM. They wrenched open the machine and caused an explosion to open the rear by inserting a pipe into the front and pumping explosive gas believed to be acetylene from a large cylinder they had brought, igniting it using a homemade device. This technique required considerable expertise, as too much gas would destroy the money inside and too little would leave the ATM intact. After the explosion they broke into the store by cutting away a door and smashing a glass panel, then removed the security devices on the rear of the ATM with a circular saw and emptied it from the inside, taking approximately twenty thousand pounds. The explosion caused significant damage to the machine and the fabric of the building. The cost of repairing the ATM was thirteen thousand pounds.
The men left the premises and drove away at high speed with the appellant at the wheel. Police were alerted and just south of Newark a police car started to follow the vehicle. The appellant lost control on the A17 having crossed the central island of a roundabout. The car left the road and crashed into a ditch. The appellant suffered multiple injuries and was unable to make off on foot. The other offenders all escaped and have not been apprehended. The appellant was found lying against the open passenger side door. He was taken to hospital where he remained for three weeks. The car was searched and a burglar’s kit was recovered including a sledgehammer, jemmy bar, circular saw, hammer, chisel, pipe with tubing, four ignition devices, a number of gas cylinders, several sets of false plates, a balaclava and gloves. A holdall containing the stolen money was recovered from the back seat.
After discharge from hospital the appellant was interviewed on 13 October. He claimed he had been the rear seat passenger in the Audi and had been coerced into taking part in the offences because of the theft of six thousand pounds worth of cocaine by an associate of his. He said he had been made to wear gloves and a face covering, had not been involved in the burglary or explosion, and had only given the others directions to Grantham from the rear of the vehicle. He subsequently pleaded guilty to the offences. There was a basis of plea stating that he owed money to people he did not wish to name and there were threats of violence on him, his pregnant partner and children. The judge expressed no view as to whether the appellant’s position as part of this professional gang was the result of indebtedness, stating it made precious little difference to the outcome. The judge did not accept that the appellant was forced into engaging and being part of this gang’s activities, and it was noted that the second line in paragraph one of the basis of plea was abandoned.
The appellant was born in September 1977 and had appeared before the court on eleven previous occasions for 21 offences between 1994 and 2016. His earlier offences were mainly for theft, aggravated vehicle taking and driving offences. In 2017 he was sentenced to three years’ imprisonment for possessing an imitation firearm with intent to cause fear of violence. In 2012 he was sentenced to 54 months’ imprisonment for committing arson recklessly, theft of a vehicle and criminal damage. In March 2016 he was sentenced to 20 months’ imprisonment for assault occasioning actual bodily harm contrary to section 47 of the Offences against the Person Act 1861, which entailed throwing an acid-type substance at a police officer. In April 2016 he was sentenced to 10 months consecutive for handling stolen goods. There was no pre-sentence report before the judge, which the Court of Appeal confirmed was neither necessary then nor at the appeal.
In sentencing remarks the judge stated that the primary offences had all the hallmarks of professionalism and the responsibility amongst the gang was shared. The appellant’s position was aggravated by his criminal record. The appellant was a ruthless and determined criminal. The judge stated that he did take mitigation into account. Despite his long criminal record the appellant was now a shadow of the man he was back in September because during the crash he caused as he tried to escape he suffered life-changing injuries. The prognosis was unknown but he appeared at the Crown Court via video link in a wheelchair and was visibly suffering the effects of his injuries. The judge kept in mind that he was fortunate still to have the support of his partner. The appellant was entitled to 25 per cent deduction for plea. The judge bore in mind Attorney-General’s Reference Nos 74 to 78 of 2014 [2015] 1 Cr App R (S) 30, in which two defendants were each involved in a single explosion or attempted explosion as well as conspiracies to burgle. The Court of Appeal in that case involving very similar facts indicated that it was appropriate that consecutive sentences should have been passed and it was necessary to pass appropriate deterrent sentences. The sentences imposed on appeal in relation to the conspirators most directly involved were of 10 years’ imprisonment before credit for their pleas. The judge stated that he kept in mind totality when imposing the sentences, saying that the starting point on counts two and three were 10 years and four years’ imprisonment respectively before credit was given for the plea. Under the Sentencing Council’s Burglary Guideline the appropriate starting point for this offence was two years’ imprisonment with a sentencing range of one to five years. In respect of the dangerous driving, which had caused catastrophic injury to the appellant but might have caused similar injuries to a number of innocent people, the starting point was 16 months, reduced to 12 months concurrent after 25 per cent credit for plea bearing in mind totality. Finally the judge said that he had considered whether to pass an extended sentence but particularly given the appellant’s circumstances that would be neither necessary nor appropriate. The sentence imposed was long and hard because of the seriousness of his criminality.
The grounds of appeal, developed by Mr Khan, were first that the judge failed to take into account totality in as much as he imposed consecutive sentences on counts two and three by simply aggregating the sentences appropriate for each offence without making further allowance, and secondly that insufficient regard was paid to the appellant’s personal mitigation, namely that he had been so seriously injured and that prison would be correspondingly harder. The appellant did not take issue with the judge’s adjusted starting points as such viewed on an isolated basis before credit for the pleas, but the submission was that looking at this in the round an adjusted starting point of 14 years before credit for the pleas was manifestly excessive.
The Court of Appeal, in a judgment given by Mr Justice Jay, carefully considered these submissions. The judge said that he had taken into account totality and he was clearly entitled in line with Court of Appeal authority to impose consecutive sentences. Under page seven of the Sentencing Council’s Definitive Guideline on Offences Taken into Consideration and Totality the judge was not required to reduce either or both elements of the consecutive sentence in the manner pressed. It was only incumbent on him to do so if the upshot would be unjust and disproportionate. Although this was certainly a harsh sentence the outcome could not be so characterised, and in any event the judge reflected totality to the extent necessary and appropriate by passing a concurrent sentence for the dangerous driving matter. Whereas it was correct that the appellant’s injuries had been life-changing, the court had not received medical evidence about this, though it accepted Mr Khan’s explanation as to the present position. Nonetheless the fact remained that these injuries arose directly out of the appellant’s criminal activities overall, including his dangerous driving at the moment he was injured when he was escaping apprehension. The judge said that he took into account the available mitigation and the Court of Appeal was unable to conclude that the overall sentence he imposed was manifestly excessive.
A difficulty did arise in relation to the disqualification period that the judge imposed. The judge stated in court that the appellant would be disqualified for a period of three years and that disqualification would begin and come into effect and start at the halfway point of his sentence. The court record indicated differently, but it was the sentence pronounced in court which was material and operative. The effect of paragraph 42 of the Court of Appeal’s judgment in R v Needham [2016] EWCA Crim 455 was that the sentence takes effect from the day it is pronounced, not at the date of release. The Court of Appeal was unable to adjust the sentence to reflect the judge’s clear intention given the impact of section 11(3) of the Criminal Appeal Act 1968. The sentence as pronounced in court to the extent that the judge stated that the disqualification period would begin and come into effect and start at the halfway point was an unlawful sentence, and that part of the disqualification order had to be deleted.
In short, the appellant was disqualified from driving for a period of three years and to that extent only the appeal was allowed, but in relation to the substantive matters concerning the length of the sentences the appeal was dismissed.