Callum Connerty [2019] EWCA Crim 1661

Callum John Connerty [2019] EWCA Crim 1661 concerned an appeal against sentence by the Court of Appeal (Lord Justice Fulford, Mrs Justice Andrews, and Mr Justice Swift) which was allowed.

Mr Connerty had pleaded guilty to robbery in the Crown Court at Liverpool and was sentenced by the Recorder of Liverpool, His Honour Judge Goldstone, to five years’ imprisonment with full credit for his plea. He appealed against that sentence by leave of the single judge.

On the evening of 18 November 2018 Mr Connerty and two accomplices committed a robbery at a convenience store in Bootle. All three men were armed and disguised. One carried a crowbar, one a sledgehammer, and the third an unspecified weapon. One of the other robbers brandished his weapon at the man working behind the counter, Mr Mikov, threatened him, and grabbed him by the arm. The main target was an ATM machine, which one man tried to open with the sledgehammer without success. Mr Connerty then attempted to prise it open with the crowbar. A female customer was in the shop at the time and was also badly shaken. Mr Connerty loaded tobacco products from behind the counter into a box, which his companions took when they fled. The entire incident was captured on CCTV. Mr Mikov managed to sound the alarm and police arrived soon afterwards, incapacitating Mr Connerty with a Taser and arresting him. His accomplices escaped with a significant amount of tobacco products which were never recovered and whose value was unknown.

Mr Connerty admitted his guilt immediately, stating it was his first involvement in a robbery. That was true, though he had ten previous convictions for offences including petty theft and drugs offences. He was on licence at the time for aggravated vehicle taking.

The Recorder applied the Definitive Sentencing Guidelines for street and less sophisticated commercial robbery. There was no dispute that the offending fell within harm category 2. The prosecution contended for medium culpability (category B) but the Recorder queried whether it fell within high culpability (category A) by reason of very significant force used against property, notwithstanding that the force was directed at the ATM rather than a victim. He did not need to resolve that issue, however, because he proceeded on the basis that even if the case were one of medium culpability, there were so many serious aggravating factors that he was justified in moving above the upper limit of the guidelines for that category. The Recorder identified six aggravating factors: the offence was committed whilst on licence, the targeting of high value property, the length of time over which the robbery took place, the group nature of the offence, the attempted disguise, and the significant planning involved inferred from the nature of the weapons and the targeting of the ATM. In light of these factors he took a notional sentence after trial of seven years and six months, only six months short of the very top of the range for high culpability category 2 robbery. The range for category 2B is three to six years with a starting point of four years, whilst category 2A has a starting point of five years and a range of four to eight years. After full credit for the guilty plea the Recorder imposed five years’ imprisonment.

Mr Rowan, appearing for Mr Connerty, accepted that defence counsel had conceded that the judge was in principle entitled to move beyond the upper limit of the medium culpability range because of the aggravating factors identified. However, he submitted that this did not justify a notional sentence towards the very top of the high culpability range. He contended that having used those factors to bring the case into the higher category, there would be double counting involved to then use them to elevate the sentence to near the top end of that range.

The court agreed. The many aggravating factors identified by the judge justified a sentence at the very top of the medium culpability range, which overlapped with the lower end of the higher culpability range and was indeed above the starting point in that higher range. The appropriate notional sentence after trial would have been six years. After full credit for the early guilty plea, that produced a sentence of four years’ imprisonment.

In short, the appeal was allowed, the sentence of five years’ imprisonment was quashed, and a sentence of four years’ imprisonment was substituted.