Stuart Wigley [2019] EWCA Crim 1347

In R v Stuart Wigley [2019] EWCA Crim 1347 the Court of Appeal dismissed an appeal against a sentence of six years’ imprisonment imposed for robbery of a casino.

Mr Wigley pleaded guilty on 21 January 2019 at the Crown Court at Southwark to robbery and possession of an imitation firearm and received concurrent terms of six years and eighteen months’ imprisonment respectively. He appealed by leave of the single judge.

The appellant, who was nearly 41 years of age and of previous good character, had been employed briefly at the Park Lane Casino until September 2015. On 1 June 2017 he entered the adjoining Hilton Hotel and attempted to gain access to the casino through an internal door but failed. Five days later, on 6 June shortly before 10am, he entered the casino’s main entrance heavily disguised in a balaclava. A driver shouted at him and gave chase. The appellant made a movement that led the driver to believe he had a weapon, though none was seen. The appellant proceeded to the second floor gaming area where his masked appearance caused many staff to flee in panic. He jumped over the cashier’s counter, causing Mr Jamie Porteous to fall backwards off his chair, and took £36,000 in cash from three till drawers, ignoring numbered five pound notes. He fled through a connecting door to the Hilton. A security guard pursued him and saw him discard his balaclava and boiler suit in a bin at Hyde Park Corner underground station, changing into a baseball cap. In the bin police found a black sock containing a silver imitation firearm with silver tape around the handle and trigger, which the appellant had carried but not needed to produce. He was arrested later and declined comment in two interviews.

The sentencing judge noted that the appellant had not entered his guilty plea until some nineteen months after the offence and after he had submitted a defence statement on 14 June 2018 setting out an alibi, claiming he had been driving his white transit van in the area at the relevant time. He had made considerable requests for information which caused very considerable additional work and delay. The judge applied the robbery guideline of 1 April 2016 and determined that this was a professionally planned commercial robbery. Although the appellant had not produced the imitation firearm, he had taken it with him to use should the need arise and the threat was implicit. The judge held that the court had to mark the appellant’s culpability on the basis that he had the imitation firearm and was not simply pretending to have a weapon, which made the offending more serious than if no weapon had been taken. In mitigation the judge took account of the appellant’s good character, the impact on his family and the low risk of reoffending. The judge noted that the appellant was about to undergo exploratory surgery for a suspected terminal illness, though happily that was not the position, but struggled to understand how that could have motivated the offence. The judge categorised the case as 2B with a starting point of five years and a range of four to eight years, but adopted a starting point of seven years given the seriousness of the circumstances. After giving credit of fourteen per cent for the guilty plea the judge reached six years’ imprisonment.

The appellant advanced three grounds of appeal. First, he contended that the judge was wrong to use the imitation firearm as an aggravating element when it was subject to a separate count and sentenced separately, amounting to double counting. Second, he argued that categorisation was wrong; the offending involved no overt threats of violence and no weapon was produced, so it should have been a 2C not a 2B case. Third, he submitted that the judge unreasonably discounted the mitigation advanced on his behalf.

The Court of Appeal held that the judge’s approach to categorisation was correct. There had been a threat of violence but no weapon was produced. The weapon was present on the appellant’s person but did not need to be deployed because his masked appearance was sufficient to cause fear and panic. Some significant psychological harm was caused to the cashier. The court agreed that this was a 2B case. The judge was entitled to impose a concurrent sentence for the firearm offence and properly reflected the totality of the offending, including that offence, in the one substantive sentence. Although the firearm placed the case into category 2B, it was also part of the relevant circumstances to be considered in deciding where the case sat within that category. The circumstances were serious even in category 2 terms: there was careful planning, a substantial amount of money was stolen, and an imitation firearm was carried in case it was needed. The judge was entirely justified in saying that the case fell in the upper part of the 2B bracket and in fixing on seven years as the starting point. The judge acknowledged and took into account the personal mitigation including good character, the likely impact of sentence on the appellant’s family, and the possibly relevant factor of the potential diagnosis. The critical question was whether the final sentence of six years was manifestly excessive. In short, the appeal was dismissed; the final sentence of six years’ imprisonment was not manifestly excessive given the serious planning, the substantial sum stolen and the carrying of an imitation firearm for use if required.