Gary Boothe [2019] EWCA Crim 929
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R v Gary Boothe [2019] EWCA Crim 929 concerned an Attorney General’s Reference under section 36 of the Criminal Justice Act 1988 in which the Court of Appeal held that concurrent extended sentences totalling 10 years (5 years’ custody, 5 years’ extension) imposed for two knife-point robberies at betting shops were unduly lenient.
Mr Boothe, aged 40, had pleaded guilty to two counts of robbery, three counts of possession of a bladed article and four counts of theft across five indictments on 3 and 4 February 2019. He asked for two further thefts and one attempted theft to be taken into consideration. The Recorder imposed a determinate sentence of 6 months for one theft and possession offence, to run consecutively to concurrent extended sentences of 10 years (5 years’ custody with a 5-year extension period) for the two robberies and associated bladed-article offences. The thefts on the other indictments attracted concurrent determinate sentences of 4 months each.
The offending took place over an intensive five-week period in October and November 2018. Mr Boothe committed a series of thefts from retail premises, snatching cash from tills, including one on 15 October 2018 at a Co-op where he dropped a bag containing a knife during a struggle with a cashier. On 16 October he stole an iPad worth £399 and goods worth £727.92. On 15 November 2018 he carried out a robbery at a Coral bookmaker’s, climbing onto the counter and pointing a 6-inch bread knife at the lone employee, Mr Harry Brown, while demanding money. He took £719. Two days later, on 17 November, he committed a second robbery at a Betfred bookmaker’s, jumping over the counter and threatening the sole female member of staff, Ms Lorna Galpin, at close range with a 6-inch bread knife. He took £2,440.
Victim personal statements from Mr Brown and Ms Galpin detailed serious psychological harm. Mr Brown experienced nightmares, flashbacks, constant anxiety and difficulty trusting customers. Ms Galpin was diagnosed with acute stress disorder, suffered flashbacks, sleep disturbance and extreme anxiety, felt compelled to resign her position and was unable to return to work or visit local shops after dark without acute fear of attack.
Mr Boothe had 42 previous offences on 20 occasions since 1997, including three previous convictions for robbery (resulting in sentences of 4 years in 2002, 4 years for attempted robbery in 2009, and 42 months in 2012), as well as convictions for burglary, drugs offences and shoplifting. A pre-sentence report noted his long history of drug addiction, cycles of relapse and reoffending. He had been admitted to a treatment centre on release from his last custodial sentence in December 2017 but had relapsed and been discharged from supported accommodation in August 2018. The author assessed him as posing a high to medium risk of reconviction and a high risk of serious harm, particularly physical and psychological harm to retail staff, with the risk immediate while he was unable to manage his addiction.
The Recorder accepted that Mr Boothe had pleaded guilty promptly and that drugs had destroyed his life. She found him dangerous within the meaning of section 229 of the Criminal Justice Act 2003. She decided to impose an extended sentence in order that the Parole Board, rather than automatic release, would determine his fitness for release after two-thirds of the custodial term. She explained that because an extended sentence would delay his eligibility for release beyond the halfway point that applied to determinate sentences, she would impose a shorter custodial term than would have been appropriate for a determinate sentence. She calculated that had she passed determinate sentences of 7 and 8 years respectively for the two robberies (her starting points before credit for plea), reduced to 10 years to reflect totality and then reduced by one-third for guilty pleas, the result would have been approximately 80 months, entitling Mr Boothe to release at 40 months. She therefore imposed a custodial term of 5 years in the extended sentence, intending that he would still be eligible for Parole Board consideration at around the 40-month mark.
The Attorney General contended that the sentences were unduly lenient. Counsel for the Attorney General, Ms Ledward, submitted that the robberies fell within category A1 or A2 of the Robbery Definitive Guideline, with starting points of 8 years (range 7 to 12) and 5 years (range 4 to 8) respectively. The production of a bladed article to threaten violence indicated high culpability, and the serious psychological harm to Ms Galpin was a category 1 harm factor. Aggravating features included the intensive period of acquisitive crime, the defendant’s similar previous convictions, targeting of lone staff, and offending whilst under the influence of drugs. Mitigating factors included his admissions in interview, guilty pleas and remorse. Ms Ledward relied on authority establishing that when passing an extended sentence the court must not adjust the custodial term to take account of the different early-release provisions that apply, citing R v Malachi and Lawrence [2014] EWCA Crim 631, R v Hibbert [2015] 2 Cr App R(S) 15 and Attorney General’s Reference No 27 of 2013 (R v Burinskas) [2014] 2 Cr App R(S) 45. It was submitted that the Recorder’s approach to early release was impermissible, that she gave insufficient weight to the catalogue of additional acquisitive offending, and that she made too generous an adjustment for totality, resulting in a custodial term significantly too short.
On behalf of Mr Boothe, Mr Robinson submitted that when the defendant first entered guilty pleas he knew a more serious charge was coming and immediately indicated he would plead guilty to it, demonstrating real remorse and realism. The Recorder had approached sentencing correctly, and a letter from the appellant demonstrated his full realisation of the seriousness of his offending. He was said to be an articulate man who had relapsed, and this personal mitigation was of considerable strength and properly reflected by the Recorder.
Lord Justice Fulford, giving the judgment of the court, held that it was impermissible for the Recorder to have sought to sentence in a way that would secure the defendant’s release after a particular period of time. Having determined that the defendant was dangerous, the judge should have set the custodial term in the usual way without adjusting for early-release provisions. The court held that the judge passed sentences that were unduly lenient for the two robberies, bearing in mind particularly the extremely frightening use of a knife and the effects on the victims. The offence involving Ms Galpin had features which took it close to category 1A. The court noted that the Recorder herself had identified pre-plea terms of 7 and 8 years’ imprisonment respectively for the two robberies if dealt with separately. Although the individual sentences for the thefts and possession offences in the other indictments were not unduly lenient when viewed in isolation, the overall sentence failed adequately to reflect the catalogue of criminality.
The court determined that the correct determinate sentence for the two robbery counts, treated globally without distinction though noting they were not of identical seriousness, should have been 12 years’ imprisonment, taking account of the aggravating features, the need for totality to be proportionate, and the effects on the victims. That term required reduction by one-third to reflect the guilty pleas, resulting in 8 years.
The court granted leave, quashed the extended sentences on count 1 of indictment T20187208 and count 1 of indictment T20197031, and substituted on each count concurrently (but consecutive to the determinate sentences) an extended sentence under section 226A of 13 years, comprising a custodial period of 8 years with a 5-year extension period. The other sentences imposed by the Recorder were undisturbed.
In short, the Reference succeeded because the Recorder had impermissibly reduced the custodial term of the extended sentences to compensate for the delayed release provisions, and because the overall sentence failed adequately to reflect the serious knife-point robberies and the intensive campaign of acquisitive crime.