Michael John Crimes [2019] EWCA Crim 1108
Summary
**Michael John Crimes [2019] EWCA Crim 1108** concerned an appeal against a total sentence of six years and six months’ imprisonment imposed by His Honour Judge Martin Walsh at the Crown Court at Manchester (Crown Square) on 19 November 2018.
Mr Crimes had pleaded guilty to five offences charged on three indictments. On indictment T20187213A he admitted possession of amphetamine with intent to supply. On indictment T20187213B he pleaded guilty to three counts of handling stolen goods relating to a Kawasaki motorcycle stolen in a burglary, a stolen Ford Transit van, and a second stolen motorcycle. On indictment T20187230 he pleaded guilty to two offences contrary to section 45(1)A of the Serious Crime Act 2015, namely participating in the criminal activities of an organised crime group: count 3 concerned assisting in the stealing of motor vehicles on behalf of a Salford organised crime group, and count 4 concerned destroying a motor vehicle by fire on behalf of the same group.
The facts underlying the serious offences on indictment 7230 were as follows. On 1 January 2018 a Nissan Qashqai was stolen in Liverpool, and on 4 January 2018 a Ford Focus was stolen from the same area. Both vehicles were subsequently fitted with false registration plates. On 10 January 2018 the Qashqai was stopped by police in Manchester; the driver was a man named Morris, and Mr Crimes was a passenger. On 3 February 2018 the Ford Focus was driven from Liverpool to Manchester on a reconnaissance mission. The following day it was used to convey one D’maine Robinson and an unidentified gunman from Liverpool to a restaurant in Manchester, where Robinson had arranged to meet Tyrell Thomasson. This was part of a well-organised plan by an organised crime group to shoot Mr Thomasson in the legs in revenge for an earlier gang-related shooting believed to have been carried out by Mr Thomasson’s brother. The plan succeeded: Mr Thomasson was lured into a trap by Robinson and shot in the leg; a second shot was also fired but struck no one. The gunman and his driver fled the scene in the Ford Focus and went to the home of a woman named Cooper, who arranged a taxi to take the two men back to Liverpool. In the early hours of 5 February the stolen Ford Focus was destroyed by fire near Miss Cooper’s address. It was Mr Crimes who set the car alight using substantial quantities of accelerant. Robinson subsequently pleaded guilty to conspiracy to cause grievous bodily harm with intent and conspiracy to have a firearm with intent to commit an indictable offence, and following an Attorney-General’s Reference his total sentence became one of fourteen years and three months’ imprisonment. Miss Cooper pleaded guilty to assisting an offender and received eighteen months’ imprisonment suspended for two years. The gunman and his driver remained unidentified.
On 21 May 2018 police officers went to Mr Crimes’s home to arrest him in relation to those matters. They found him arriving at the house with a man called Maddix. Both men were in possession of bags containing snap bags of amphetamine. Further amphetamine was found inside the house, of which Mr Maddix claimed ownership. Notebooks containing names and numbers, and scales, were also found. In the rear garden police discovered the Kawasaki motorcycle which had been taken in a burglary in Manchester in early March 2018. That motorcycle had been partially stripped down and parts had been offered for sale on eBay by Mr Crimes. On the driveway stood a Ford Transit van which had been stolen on 20 March 2018 and subsequently fitted with false number plates. Inside that van was another motorcycle stolen in a burglary on 2 April. When interviewed under caution Mr Crimes made no comment but put forward a prepared statement falsely claiming that he was unaware that the van, its contents and the Kawasaki were stolen, that he had bought the Kawasaki in good faith, that he had allowed an acquaintance to park the van on his drive as a favour, and that the amphetamine seized was all for his personal use, with the bags and scales merely to monitor his own consumption.
Mr Crimes initially pleaded not guilty to all charges. He later pleaded guilty to indictments A and B and to the counts in the B indictment relating to the Kawasaki and the Transit van. The trial of indictment 7230 began on 5 November 2018. After the jury was sworn the judge allowed time for discussion and indicated that guilty pleas at that stage would still attract a ten per cent reduction. On 6 November Mr Crimes pleaded guilty to counts 3 and 4 on that indictment, which pleas were accepted.
Mr Crimes was aged forty at sentence. He had a number of old previous convictions which did not significantly aggravate the present offending. More recently, on 1 May 2018 he had been conditionally discharged by a magistrates’ court for producing cannabis and handling stolen goods committed in October 2017, and on 8 May 2018 he had been sentenced to a community order at the Crown Court at Manchester for handling stolen goods committed in October 2016 and January 2017 and for possessing cannabis on the latter date. All of those offences pre-dated the present offending by a matter of months, and Mr Crimes was on bail for them at the time of the present offences. No pre-sentence report was thought necessary.
The learned judge imposed a sentence of twenty-seven months’ imprisonment on count 3 and a consecutive sentence of forty-two months’ imprisonment on count 4 of indictment 7230. For each of the three offences on the A and B indictments he imposed nine months’ imprisonment concurrent with each other but consecutive to the longer sentences, yielding the total of six years and six months. The judge indicated that credit had been given for the guilty pleas, emphasised that his overall sentence reflected the principle of totality and stated that it would have been the same however the individual sentences were structured. In his sentencing remarks the judge noted that count 3 reflected Mr Crimes’s role in assisting the theft of the Ford Focus and the Nissan Qashqai and that it was implicit in his plea that he knew the vehicles were to be used by an organised crime group for a criminal purpose, although at that stage the exact nature of the criminal activity may have been unknown to him. Count 4 reflected the part he played in setting fire to and destroying the Ford Focus after the shooting had occurred, done in an attempt to evade detection of those responsible and undertaken at a time when Mr Crimes must have been aware not only of the identity of the attackers but also the nature of the criminal activity in which they had been involved.
The appellant, by leave of the single judge, advanced several grounds of appeal. Mr Jamieson, on his behalf, took no issue with the sentences imposed on the A and B indictments. He submitted that even if the theft guideline was considered by way of analogy for count 3, the starting point before credit for the guilty plea would not have exceeded two years, so that the sentence of twenty-seven months (implying a starting point of thirty months) was too long. In relation to count 4, Mr Jamieson submitted by reference to cases on attempting to pervert the course of justice, including R v Dowd & Huskins [2001] Cr App R(S) 349 and R v Beaney [2005] EWCA Crim 1127, that the judge’s starting point, presumably in the region of forty-eight months’ imprisonment, was far too high. He further submitted that the sentences on counts 3 and 4 should have been ordered to run concurrently with each other because they represented a course of conduct and the various actions might have been encompassed in a single count. He acknowledged that had concurrent sentences been passed the length would have to reflect the overall offending, but relied on the point to highlight that the effect of consecutive sentences was to impose a total sentence in excess of the statutory maximum of five years for a single offence under section 45. Finally, Mr Jamieson submitted that insufficient credit was given for the guilty pleas on indictment 7230, relying on the fact that Mr Crimes had indicated in advance of trial that he would be prepared to admit assisting the conspirators by burning the Ford Focus.
Lord Justice Holroyde, giving the judgment of the court, stated that at this stage the court must focus on the overall sentence imposed for the offending as a whole rather than on the precise structure by which that total was reached. The appellant had committed three different types of offence on five separate occasions. In principle the judge was entitled to impose consecutive sentences on each count provided the total was not manifestly excessive. The total sentence had to include appropriate punishment for the offences on the A and B indictments. Although Mr Jamieson had made no submissions about the sentences imposed for those offences, they were not to be ignored in considering totality. The guilty pleas for those three offences were entered on a basis which limited the appellant’s criminality, but they were three distinct offences committed on separate occasions by a man who had recently committed and was on bail for similar crimes. Having regard to the sentencing guidelines applicable to those offences, the court had no doubt that if dealt with in isolation from the offences charged on indictment 7230 they would have merited a total sentence significantly longer than the nine months’ imprisonment which was in fact imposed.
There was no definitive guideline applicable to offences contrary to section 45 of the Serious Crime Act 2015. Reference by analogy to the theft guideline in respect of count 3 or to fact-specific decisions on perverting the course of justice in relation to count 4 provided only very limited assistance. The court therefore considered, within the context of the statutory maximum of five years’ imprisonment, the appellant’s culpability and the harm caused, intended or likely to be caused by his commission of these offences. Participating in the criminal activities of an organised crime group was by its nature a serious offence. With regard to the five purposes of sentencing identified in section 142 of the Criminal Justice Act 2003, sentencers dealing with such offences would generally wish to focus on punishment, protection of the public and the reduction of crime by deterrence. The offence was by its nature an adjunct to other criminal activity, but that did not mean that the offender necessarily played only a minor role in the commission of the offence.
In relation to count 3, Mr Crimes had played a part in the theft of two cars within a few days from a city which was neither his home city nor the base of the organised criminal group for which he was acting. He knew that the cars were intended for use by professional criminals in the commission of crime. The seriousness of the offence therefore went beyond the seriousness of stealing cars for their financial value. The judge rightly accepted that at that stage the appellant may not have known the precise criminal purpose for which the cars were intended. The judge appeared to have concluded that the appropriate sentence for this offence before credit for plea was thirty months’ imprisonment. The court observed that that was high in the range which was open to the judge. Count 4 was significantly more serious. It was a determined attempt to impede the inevitable police investigation into the very serious crime which had been committed and of which the appellant was aware. Again, its seriousness went beyond that which was inherent in many other attempts to pervert the course of justice because it involved such an attempt being made on behalf of an organised crime group. For that reason the offence was to be contrasted with offences of the kind illustrated by the cases to which the court was referred, where a motorist involved in a fatal collision had attempted to conceal his involvement by personally, or with the assistance of family and friends, disposing of or concealing incriminating evidence. The judge was correct to view this offence as requiring a longer sentence than count 3. The court took the view that the sentence which the judge imposed on count 4, which implied a sentence before credit for plea of around four years’ imprisonment, was somewhat too long, particularly when considered as part of the total term of imprisonment for these two offences.
The judge was also correct to order the sentences for counts 3 and 4 to run consecutively. The occasions were a month apart, in different cities, and they were quite distinct aspects of the offender’s criminality. It was then necessary to reiterate that in the interests of overall totality the judge had imposed very low sentences for the offences charged in the A and B indictments. When the court took into account that those three offences could properly have contributed significantly more than they did to the total sentence, it concluded that an overall sentence of six years and six months’ imprisonment, though certainly a stiff one, was not manifestly excessive. In short, the appeal was dismissed.
Mr Crimes had pleaded guilty to five offences charged on three indictments. On indictment T20187213A he admitted possession of amphetamine with intent to supply. On indictment T20187213B he pleaded guilty to three counts of handling stolen goods relating to a Kawasaki motorcycle stolen in a burglary, a stolen Ford Transit van, and a second stolen motorcycle. On indictment T20187230 he pleaded guilty to two offences contrary to section 45(1)A of the Serious Crime Act 2015, namely participating in the criminal activities of an organised crime group: count 3 concerned assisting in the stealing of motor vehicles on behalf of a Salford organised crime group, and count 4 concerned destroying a motor vehicle by fire on behalf of the same group.
The facts underlying the serious offences on indictment 7230 were as follows. On 1 January 2018 a Nissan Qashqai was stolen in Liverpool, and on 4 January 2018 a Ford Focus was stolen from the same area. Both vehicles were subsequently fitted with false registration plates. On 10 January 2018 the Qashqai was stopped by police in Manchester; the driver was a man named Morris, and Mr Crimes was a passenger. On 3 February 2018 the Ford Focus was driven from Liverpool to Manchester on a reconnaissance mission. The following day it was used to convey one D’maine Robinson and an unidentified gunman from Liverpool to a restaurant in Manchester, where Robinson had arranged to meet Tyrell Thomasson. This was part of a well-organised plan by an organised crime group to shoot Mr Thomasson in the legs in revenge for an earlier gang-related shooting believed to have been carried out by Mr Thomasson’s brother. The plan succeeded: Mr Thomasson was lured into a trap by Robinson and shot in the leg; a second shot was also fired but struck no one. The gunman and his driver fled the scene in the Ford Focus and went to the home of a woman named Cooper, who arranged a taxi to take the two men back to Liverpool. In the early hours of 5 February the stolen Ford Focus was destroyed by fire near Miss Cooper’s address. It was Mr Crimes who set the car alight using substantial quantities of accelerant. Robinson subsequently pleaded guilty to conspiracy to cause grievous bodily harm with intent and conspiracy to have a firearm with intent to commit an indictable offence, and following an Attorney-General’s Reference his total sentence became one of fourteen years and three months’ imprisonment. Miss Cooper pleaded guilty to assisting an offender and received eighteen months’ imprisonment suspended for two years. The gunman and his driver remained unidentified.
On 21 May 2018 police officers went to Mr Crimes’s home to arrest him in relation to those matters. They found him arriving at the house with a man called Maddix. Both men were in possession of bags containing snap bags of amphetamine. Further amphetamine was found inside the house, of which Mr Maddix claimed ownership. Notebooks containing names and numbers, and scales, were also found. In the rear garden police discovered the Kawasaki motorcycle which had been taken in a burglary in Manchester in early March 2018. That motorcycle had been partially stripped down and parts had been offered for sale on eBay by Mr Crimes. On the driveway stood a Ford Transit van which had been stolen on 20 March 2018 and subsequently fitted with false number plates. Inside that van was another motorcycle stolen in a burglary on 2 April. When interviewed under caution Mr Crimes made no comment but put forward a prepared statement falsely claiming that he was unaware that the van, its contents and the Kawasaki were stolen, that he had bought the Kawasaki in good faith, that he had allowed an acquaintance to park the van on his drive as a favour, and that the amphetamine seized was all for his personal use, with the bags and scales merely to monitor his own consumption.
Mr Crimes initially pleaded not guilty to all charges. He later pleaded guilty to indictments A and B and to the counts in the B indictment relating to the Kawasaki and the Transit van. The trial of indictment 7230 began on 5 November 2018. After the jury was sworn the judge allowed time for discussion and indicated that guilty pleas at that stage would still attract a ten per cent reduction. On 6 November Mr Crimes pleaded guilty to counts 3 and 4 on that indictment, which pleas were accepted.
Mr Crimes was aged forty at sentence. He had a number of old previous convictions which did not significantly aggravate the present offending. More recently, on 1 May 2018 he had been conditionally discharged by a magistrates’ court for producing cannabis and handling stolen goods committed in October 2017, and on 8 May 2018 he had been sentenced to a community order at the Crown Court at Manchester for handling stolen goods committed in October 2016 and January 2017 and for possessing cannabis on the latter date. All of those offences pre-dated the present offending by a matter of months, and Mr Crimes was on bail for them at the time of the present offences. No pre-sentence report was thought necessary.
The learned judge imposed a sentence of twenty-seven months’ imprisonment on count 3 and a consecutive sentence of forty-two months’ imprisonment on count 4 of indictment 7230. For each of the three offences on the A and B indictments he imposed nine months’ imprisonment concurrent with each other but consecutive to the longer sentences, yielding the total of six years and six months. The judge indicated that credit had been given for the guilty pleas, emphasised that his overall sentence reflected the principle of totality and stated that it would have been the same however the individual sentences were structured. In his sentencing remarks the judge noted that count 3 reflected Mr Crimes’s role in assisting the theft of the Ford Focus and the Nissan Qashqai and that it was implicit in his plea that he knew the vehicles were to be used by an organised crime group for a criminal purpose, although at that stage the exact nature of the criminal activity may have been unknown to him. Count 4 reflected the part he played in setting fire to and destroying the Ford Focus after the shooting had occurred, done in an attempt to evade detection of those responsible and undertaken at a time when Mr Crimes must have been aware not only of the identity of the attackers but also the nature of the criminal activity in which they had been involved.
The appellant, by leave of the single judge, advanced several grounds of appeal. Mr Jamieson, on his behalf, took no issue with the sentences imposed on the A and B indictments. He submitted that even if the theft guideline was considered by way of analogy for count 3, the starting point before credit for the guilty plea would not have exceeded two years, so that the sentence of twenty-seven months (implying a starting point of thirty months) was too long. In relation to count 4, Mr Jamieson submitted by reference to cases on attempting to pervert the course of justice, including R v Dowd & Huskins [2001] Cr App R(S) 349 and R v Beaney [2005] EWCA Crim 1127, that the judge’s starting point, presumably in the region of forty-eight months’ imprisonment, was far too high. He further submitted that the sentences on counts 3 and 4 should have been ordered to run concurrently with each other because they represented a course of conduct and the various actions might have been encompassed in a single count. He acknowledged that had concurrent sentences been passed the length would have to reflect the overall offending, but relied on the point to highlight that the effect of consecutive sentences was to impose a total sentence in excess of the statutory maximum of five years for a single offence under section 45. Finally, Mr Jamieson submitted that insufficient credit was given for the guilty pleas on indictment 7230, relying on the fact that Mr Crimes had indicated in advance of trial that he would be prepared to admit assisting the conspirators by burning the Ford Focus.
Lord Justice Holroyde, giving the judgment of the court, stated that at this stage the court must focus on the overall sentence imposed for the offending as a whole rather than on the precise structure by which that total was reached. The appellant had committed three different types of offence on five separate occasions. In principle the judge was entitled to impose consecutive sentences on each count provided the total was not manifestly excessive. The total sentence had to include appropriate punishment for the offences on the A and B indictments. Although Mr Jamieson had made no submissions about the sentences imposed for those offences, they were not to be ignored in considering totality. The guilty pleas for those three offences were entered on a basis which limited the appellant’s criminality, but they were three distinct offences committed on separate occasions by a man who had recently committed and was on bail for similar crimes. Having regard to the sentencing guidelines applicable to those offences, the court had no doubt that if dealt with in isolation from the offences charged on indictment 7230 they would have merited a total sentence significantly longer than the nine months’ imprisonment which was in fact imposed.
There was no definitive guideline applicable to offences contrary to section 45 of the Serious Crime Act 2015. Reference by analogy to the theft guideline in respect of count 3 or to fact-specific decisions on perverting the course of justice in relation to count 4 provided only very limited assistance. The court therefore considered, within the context of the statutory maximum of five years’ imprisonment, the appellant’s culpability and the harm caused, intended or likely to be caused by his commission of these offences. Participating in the criminal activities of an organised crime group was by its nature a serious offence. With regard to the five purposes of sentencing identified in section 142 of the Criminal Justice Act 2003, sentencers dealing with such offences would generally wish to focus on punishment, protection of the public and the reduction of crime by deterrence. The offence was by its nature an adjunct to other criminal activity, but that did not mean that the offender necessarily played only a minor role in the commission of the offence.
In relation to count 3, Mr Crimes had played a part in the theft of two cars within a few days from a city which was neither his home city nor the base of the organised criminal group for which he was acting. He knew that the cars were intended for use by professional criminals in the commission of crime. The seriousness of the offence therefore went beyond the seriousness of stealing cars for their financial value. The judge rightly accepted that at that stage the appellant may not have known the precise criminal purpose for which the cars were intended. The judge appeared to have concluded that the appropriate sentence for this offence before credit for plea was thirty months’ imprisonment. The court observed that that was high in the range which was open to the judge. Count 4 was significantly more serious. It was a determined attempt to impede the inevitable police investigation into the very serious crime which had been committed and of which the appellant was aware. Again, its seriousness went beyond that which was inherent in many other attempts to pervert the course of justice because it involved such an attempt being made on behalf of an organised crime group. For that reason the offence was to be contrasted with offences of the kind illustrated by the cases to which the court was referred, where a motorist involved in a fatal collision had attempted to conceal his involvement by personally, or with the assistance of family and friends, disposing of or concealing incriminating evidence. The judge was correct to view this offence as requiring a longer sentence than count 3. The court took the view that the sentence which the judge imposed on count 4, which implied a sentence before credit for plea of around four years’ imprisonment, was somewhat too long, particularly when considered as part of the total term of imprisonment for these two offences.
The judge was also correct to order the sentences for counts 3 and 4 to run consecutively. The occasions were a month apart, in different cities, and they were quite distinct aspects of the offender’s criminality. It was then necessary to reiterate that in the interests of overall totality the judge had imposed very low sentences for the offences charged in the A and B indictments. When the court took into account that those three offences could properly have contributed significantly more than they did to the total sentence, it concluded that an overall sentence of six years and six months’ imprisonment, though certainly a stiff one, was not manifestly excessive. In short, the appeal was dismissed.
Following a shooting, believed to be gang-related, the appellant set fire to the get-away car and was linked to the cars used by the offenders to get to and from the shooting. When the police went to arrest him, he was found with a quantity of amphetamine, a stolen van and two motorbikes were also found. After initial denials he pleaded guilty to handling two stolen vehicles and possession of amphetamine with intent to supply.
On a separate indictment he was charged with offences relating to the shooting and pleaded guilty to two offences contrary to s45(1)(A) of the Serious Crime Act 2015. The first that he assisted in the stealing of motor vehicles on behalf of a Salford organised crime group and the second was that he had knowingly taken part in activities of an organised crime group by destroying a motor vehicle by fire. He entered pleas at a late stage.
He was sentenced to a total of 6 years and 6 months and on appeal took issue with the sentences on the Serious Crime Act offences, for the first offence the sentence was 27 months with 42 months consecutive for the second. On the other indictments the sentences were 9 months on each, concurrent to each other but consecutive to the longer sentences.
The defence looked to the theft guidelines for the first offence and perverting the course of justice for the second as there are no guidelines for the offences themselves.
Held: if dealt with on their own the offences of handling stolen goods and the drugs offence would have attracted a far higher sentence than 9 months, the second gang related offence was serious, a determined attempt to impede the inevitable police investigation, seriousness that went beyond that which is inherent in many other attempts to pervert the course of justice. The view of the Court was that the sentence for the second offence implied a sentence before plea credit of around 4 years and was somewhat too long. However, the sentences on the other indictments were very low, an overall sentence of 6 years and 6 months although “stiff” was not manifestly excessive.