Neutral Citation Number: [2018] EWCA Crim 693
No: 201703599 A1/201703633 A1 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL 

Wednesday, 21 March 2018
B e f o r e:

LADY JUSTICE HALLETT DBE
(VICE PRESIDENT OF THE CACD) 

MRS JUSTICE WHIPPLE 

HIS HONOUR JUDGE LEONARD
(Sitting as a Judge of the CACD) 
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R E G I N A 
v 
PAUL PETER LAKER‑JONES
MARK ANTHONY DOUGLAS
 
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Mr H Vass appeared on behalf of the Appellant Laker‑Jones
Mr J Rose appeared on behalf of the Applicant Douglas
Mr C Kerr appeared on behalf of the Crown
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J U D G M E N T (Approved)
1.	MR JUSTICE WHIPPLE:  This is an appeal brought by Mr Laker‑Jones (the “appellant”) against his sentence with permission of the single judge.  Mr Douglas (the “applicant”) renews his application for permission to appeal following refusal by the single judge.  
2.	On 18 July 2017, the appellant and the applicant were sentenced following guilty pleas as follows.  The appellant was sentenced to 9 years' imprisonment for conspiracy to commit aggravated burglary, contrary to section 1(1) of the Criminal Law Act 1977.  Further counts of conspiracy to commit robbery and conspiracy to commit burglary were ordered to lie on the file.  The applicant was sentenced to an extended sentence of 13 years' imprisonment pursuant to section 226A of the Criminal Justice Act 2003.  That comprised a custodial sentence of 9 years' imprisonment and an extended period of licence of 4 years for conspiracy to commit aggravated burglary, contrary to section 1(1) of the Criminal Law Act 1977.  He was sentenced to 2 years and 6 months' imprisonment to run concurrently on two counts of possessing a controlled class A drug with intent, namely MDMA, contrary to section 5(3) of the Misuse of Drugs Act 1971.  Further counts of conspiracy to commit robbery and conspiracy to commit burglary were ordered to lie on the file.  
3.	The facts giving rise to this appeal and this application are as follows.  The appellant and the applicant, along with others, conspired to commit an aggravated burglary of a public house named the Reedcutter in Station Road, Cantley, Norfolk on 12 December 2016.  The pub was a village pub owned by a Mr Stephen Millbanks in a quiet location by a river.  Mr Millbanks and his wife lived above the pub together with Mrs Millbanks' elderly father.  The takings from the pub were kept in an upstairs safe.  
4.	The police had fitted a recording device in a car being used by Mark Leworthy and the appellant and had obtained recordings of Mark Leworthy and the appellant discussing plans for the offence.  John Boyd, the applicant and Michelle Ging were going to drive to the pub in a Nissan hire car bearing false plates.  John Boyd and the applicant were going to carry out the offences and Michelle Ging was going to act as the getaway driver.  Mark Leworthy and the appellant would provide the equipment for the offence, namely tools, which was a hammer and a rucksack for the cash, along with the false number plates for the getaway car.
5.	It appeared from the recordings that the conspirators had been tipped off that there was potentially a lot of money in the pub.  The parties subsequently met on Yarmouth Road near Norwich and the false number plates were passed over along with the rucksack.  Within the rucksack was the hammer.  Michelle Ging was driving the Nissan hire car and the applicant and John Boyd were passengers in it.  The Nissan drove away and stopped near Canley, where the false number plates were put on the vehicle.  The police stopped the vehicle shortly thereafter and arrested the occupants: Michelle Ging, John Body and the applicant.  Mark Leworthy and the appellant were arrested later that day.  
6.	In interview, the appellant and the applicant made no comment.  
Grounds of appeal 
7.	On behalf of the appellant, there is a single ground of appeal: that is that the judge failed to give adequate credit for his guilty plea.  
8.	In his application for permission to appeal, Mr Douglas advanced a number of grounds, including a failure to give adequate credit for his guilty plea.
9.	So far as the pleas are concerned, Mr Leworthy pleaded guilty to a court of conspiracy to rob on 13 April 2017.  By that date, a trial was set to start on 22 May 2017.  In fact, for reasons I shall come to shortly, the trial started on 24 May 2017.  The appellant, the applicant and Mr Boyd all pleaded guilty on the first day of trial, that is on 24 May 2017.  Their pleas were to a count of conspiracy to commit aggravated burglary which was only formally added to the indictment by amendment on 24 May 2017.  Ms Ging also pleaded guilty on 24 May 2017 to assisting an offender, which was added to the indictment only on the day of trial. 
Sentencing 
10.	In passing sentence, the judge remarked that those who had pleaded guilty on the first day, namely the appellant, the applicant and Mr Boyd, were entitled to 10 per cent discount.  They had all pleaded guilty to the same sets of facts and 10 per cent was correct.  He concluded that this offending fell within category 1 of the guideline on aggravated burglary.  This was, he said, a case involving greater harm because the intention was to steal a very large sum of money and use of a weapon was envisaged.  It was higher culpability because there was a significant degree of planning and organisation and deliberate targeting of somebody by a group or a gang with a weapon present.  The judge noted that there were aggravating factors in the form of the previous convictions which all three of those defendants had.  He referred to the case of R v Khan [2013] EWCA Crim 800 and noted that an adjustment downwards had to be made to reflect the fact that the conspiracy had not been completed.  
11.	In relation to the appellant, the judge would have passed a sentence of 10 years' imprisonment after a trial.  The sentence passed was therefore one of 9 years' imprisonment taking account of his guilty plea.  
12.	In relation to the applicant, the judge would have passed a sentence of 10 years' imprisonment after a trial but having regard to plea that sentence was reduced to 9 years' imprisonment.  The sentence passed on the applicant was an extended sentence of 13 years, the custodial element being 9 years with an extended licence period of 4 years.  Concurrent sentences of 30 months were passed in relation to the drugs offences.  
Mr Laker‑Jones's appeal 
13.	Mr Vass, counsel, argues for the appellant that the judge failed to give his client adequate credit for his guilty plea, which he argues was tendered at the first available opportunity.
14.	The indictment had originally contained a count of conspiracy to commit robbery, as count 1.  On 2 May 2017 the Crown amended the indictment to include a new count 2, namely conspiracy to commit aggravated burglary.  In response to this, on 2 May 2017, counsel then acting for the appellant indicated to the Crown that the appellant would be prepared to plead to the new count 2, but the Crown maintained that that was not acceptable.  
15.	The trial was listed to commence on 22 May 2017 but was adjourned to 24 May 2017.  On 24 May 2017, the appellant entered his plea, which the Crown was on that date willing to accept.  
16.	Mr Vass argues that, in effect, 24 May 2017 was the first available opportunity to enter the plea but that an indication of willingness to plead had been given to the Crown on 2 May 2017, and on that basis the appellant should get more than 10%.
17.	We are not satisfied on the facts of this case that the appellant could not have entered his guilty plea earlier than in fact he did.  Count 2 was a count of conspiracy to commit aggravated burglary.  We have asked counsel to explain to us what the difference between that count and the existing count of conspiracy to commit robbery was or might have been.  Counsel has found that difference hard to explain.  
18.	It seems to us that a plea to aggravated burglary, on the facts of this case, necessarily constitutes an acceptance that the hammer being taken to the scene of the crime would be used as a weapon if necessary; thus, the use or threat of violence was envisaged, and that is reflected in the plea entered on the first day of trial.  We cannot see any material difference here between conspiracy to commit aggravated burglary and conspiracy to commit robbery which was already on the indictment.  On that basis, we cannot see any sensible reason why the appellant could and did not plead earlier.  The amendment to the indictment seems to us to have been an irrelevance. 
19.	Accordingly, we dismiss this appeal.
20.	Mr Douglas renews his application for leave on a number of grounds.  We have the benefit of a letter written to the court by Mr Douglas himself which sets out further submissions.  The grounds are that, first of all, the judge failed to give sufficient credit for the guilty plea.  Secondly, the judge erred in rejecting the submission on the facts that the plan was to enter the premises without disturbing the occupier.  Third, that the judge erred in finding this to be a category 1 case within the guidelines.  Fourth, the judge failed to distinguish between conspiracy to rob and conspiracy to commit aggravated burglary.  Fifth, the judge failed to take account of the fact that the conspiracy was not completed.  Sixth, the judge erred in finding that the defendant was dangerous.  
21.	In refusing leave, Martin Spencer J gave full reasons answering the various grounds pleaded by the applicant.  He said:
“1. It was reasonable for the learned judge only to give credit of 10 per cent for the guilty plea: the applicant could have tendered a plea at any time after 2 May 2017, but only did so on the first day of trial on 24 May 2017.  
2. The applicant received an extended sentence of 13 years' imprisonment for conspiracy to commit aggravated burglary, the custodial element being 9 years.
3. I do not consider it to be arguable that the finding of dangerousness was manifestly excessive.  The learned judge took the view that the applicant (and his co‑defendant Boyd) were "professional criminals who had committed qualifying offences in the past, and were well prepared to travel the country to commit serious offences".  On the basis of the instant offence and the applicant's previous convictions, which were numerous and included offences of both dishonesty and violence, the learned judge was entitled to conclude that the applicant posed a significant risk of serious harm to members of the public.  It is clear from his sentencing remarks that the leaned judge had the correct test in mind when making this assessment.
22.	4. The sentence was otherwise wholly merited.  The offence of conspiracy to commit aggravated burglary was correctly categorised as category 1 in the definitive guideline.  The other grounds of appeal echoed the submissions which were made in mitigation, to which the learned judge gave full consideration.  It was not possible to discern any flaw in the judge's approach to this sentence.”
23.	With respect, we agree with the comments given by Martin Spencer J.  We would add these further comments.  First, so far as the applicant argues that this was not a completed offence and that the sentence should have been lower taking Khan into account, we note that the judge reminded himself of that case and indeed factored it in.  But the judge also noted that this applicant had many previous convictions, which served as a significant aggravation to the offence.  These convictions would, on any view, have at least balanced out any reduction based on Khan.
24.	Secondly, the applicant had asked for a very large number of previous offences to be taken into consideration by the judge and had also pleaded guilty to two quite separate offences of possession of class A drugs, for which he was given concurrent terms.  Yet still he was sentenced to a term which took the same starting point as his co‑conspirators.  We consider that a longer custodial term might well have been justified in this case.
25.	Third, we cannot see any error in the judge's finding that the applicant was dangerous.  His antecedents are extensive, including offences for dishonesty and violence and there was good reason to conclude that he was dangerous, and thus to impose an extended sentence.  
26.	We refuse Mr Douglas leave to appeal and invite submissions on whether there should be a loss of time order in this case.
27.	THE VICE PRESIDENT:  Your lay client has been warned, Mr Rose.
28.	MR ROSE:  He was.  Can I make these submissions, that certainly when it was before the single judge, the single judge indicated that he did not consider that it was one of those cases ‑‑ 
29.	THE VICE PRESIDENT:  No, he didn't tick the box.
30.	MR ROSE:  He didn't tick the box.  
31.	THE VICE PRESIDENT:  And anyway, that doesn't matter: see my judgment in Gray.
32.	MR ROSE:  Yes.  Further submissions are: there was, in my submission, a point about the guilty plea, particularly bearing in mind a co‑defendant got leave, and the circumstances were there is no doubting in this case that the applicant only became aware of the amended indictment, which was only in fact amended at the trial, is, in my submission, sufficient at least to allow him the opportunity to argue for leave, bearing in mind that a co‑defendant did get leave on that point.  My Lady, those are my submissions.
33.	THE VICE PRESIDENT:  In the light of the judgment in R v Grey and others in which the court declared that the only way to deter totally unmeritorious applications from taking up the precious time and resources of this court better devoted to meritorious cases is to make a loss of time or a cost order.  In this case, we make a loss of time order of 28 days.