Tyrone Johnson [2019] EWCA Crim 1689

In R v Tyrone Johnson [2019] EWCA Crim 1689, the Court of Appeal (Lord Justice Haddon-Cave, Mrs Justice Cockerill, and His Honour Judge Bate) dismissed an appeal against a sentence of ten years’ imprisonment for two counts of robbery.

Mr Johnson was convicted following trial on 9 November 2018 at the Crown Court at Isleworth before His Honour Judge Simon Davis and a jury. He was later sentenced to concurrent terms of ten years’ imprisonment. His co-defendant, Alexander Warren, was found unfit to stand trial but the jury found he had done the acts constituting the robberies. Warren was made the subject of a hospital order under section 37 of the Mental Health Act 1983.

On 12 and 16 April 2018, Mr Johnson drove Mr Warren to two branches of the same pawnbrokers in West London. Mr Johnson waited outside in the getaway car whilst Mr Warren entered the shop posing as a genuine customer interested in buying gold jewellery. On the first occasion, Mr Warren snatched two bracelets valued at £3,135 from a member of staff and ran to Mr Johnson’s car. On the second occasion, Mr Warren lunged and pulled a pad of necklaces from a member of staff. A colleague locked the exit door from outside. Mr Warren smashed the glass with furniture and escaped with a chain worth £5,000. Mr Johnson’s case at trial was that on both occasions he had given Mr Warren a lift and had no idea his passenger proposed to rob nearby shops. The jury rejected this account.

Victim Personal Statements from January 2019 were made by the deputy manager of the first shop and the two members of staff on duty in the second shop, one of whom was aged 78. Each was shocked at the time, but the extent to which the impact endured varied. The deputy manager returned to work relatively quickly but remained wary and cautious of visitors. The younger member of staff who was locked in the shop with Mr Warren suffered more profound effects. He became constantly on edge, socially isolated, and was signed off with stress. He changed jobs, and although eight months later felt he had moved on, he remained slow to trust new people and continued to think of what might have happened within the shop.

Mr Johnson was aged 29 when sentenced and had twelve previous convictions for twenty offences between November 2006 and August 2013, including two robbery convictions in 2007 and 2013. The case engaged the definitive guideline for less sophisticated commercial robbery. It was agreed that both offences demonstrated medium culpability (category B). No weapon was produced and there was no violence before the goods were snatched. These were artifice robberies depending on surprise and speed. The judge was accepted to have been right to pass concurrent sentences fairly reflecting Mr Johnson’s overall criminality.

Mr Johnson, represented by Mr Edward Fenner who had also appeared at trial, argued that the ten-year sentence was manifestly excessive. He contended that the judge was wrong to find that Mr Johnson played a leading role or exploited Mr Warren, submitting instead that he had a lesser role. It was submitted that the offending fell towards the lower end of the medium culpability bracket and that any downward adjustment should not have taken the tariff outside the sentencing range.

The court rejected these grounds. His Honour Judge Bate, giving the judgment, noted that the judge had found serious psychological harm was caused to the victims, enabling him to place the case between harm categories 1 and 2. The judge was entitled to rely on the three Victim Personal Statements as the detailed evidential foundation for this conclusion in accordance with R v Chall [2019] 2 Cr App R(S) 44. The court considered that having regard to the cumulative weight of this evidence, the judge would have been justified in placing the level of harm well within category 1.

Findings of harm category 1 and medium culpability B give a suggested starting point of five years’ custody with a range of four to eight years. The judge had identified several distinct additional aggravating factors of sufficient weight to move the finishing point well up into the next bracket (harm category 1 and high culpability A, with a suggested range of seven to twelve years’ custody). The guideline permitted this course, stating that in particular relevant recent convictions are likely to result in upward adjustment and that in some cases it may be appropriate to move outside the identified category range.

The court observed that His Honour Judge Davis was ideally placed to make an informed assessment of the relative involvement of the two men, having presided over the seven-day trial and seen the two psychiatric reports on Mr Warren that led to the determination he was unfit to plead. The jury having rejected Mr Johnson’s primary defence that he was Mr Warren’s innocent chauffeur, he was on the forensic back foot in claiming a lesser role for sentencing purposes. The objective support for such a contention required careful scrutiny.

The court found that Mr Johnson’s antecedents, especially for robbery, and the known circumstances of the offences fortified the judge’s findings. Mr Johnson was a mature man of 28. It was Mr Warren who ran the much greater risk of apprehension. Mr Johnson was no stranger to artifice robbery, having in 2013 gained access to a jeweller’s shop by donning a hijab to disguise himself as a woman and thereby allow other robbers entry, for which he received 40 months’ imprisonment.

The court considered that the judge was entitled to take into account all the matters he listed as additional aggravating factors, namely Mr Johnson’s criminal record (most recently the 40-month term for the jeweller’s shop robbery), his leading role, his partial exploitation of Mr Warren, and the high value of the jewellery targeted and obtained. Having done so, it was proper to reflect the overall criminality by upward adjustment that took it from category 1B into the category 1A sentencing range. The judge gave due weight to the available personal mitigation by making a modest reduction to arrive at the final sentence of ten years’ imprisonment.

The court stated it could not fault the judge’s approach to his task. Standing back and looking at the case in the round, whilst the sentence was stern, it was not manifestly excessive. In short, the appeal against sentence was dismissed, the ten-year term being upheld as neither wrong in principle nor manifestly excessive.

R v Chall [2019] 2 Cr App R(S) 44