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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> H, R v [2009] EWCA Crim 2485 (11 November 2009) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/2485.html Cite as: [2009] EWCA Crim 2485, [2010] Crim LR 246, [2010] 2 Cr App Rep (S) 18, [2010] 2 Cr App R (S) 18

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		11 November 2009

Wednesday 11 November 2009

THE LORD CHIEF JUSTICE:

1. These cases are linked and they were heard together. They provide the court with an opportunity for further reflection on the impact of the statutory regime for sentencing discounts introduced by sections 71 to 75 of the Serious Organised Crime and Police Act 2005. The provisions came into force on 1 April 2006. They are set out and analysed in R v P and Blackburn [2008] 2 Cr App R (S) 5. We need not repeat the essential features in detail but there are a number of matters to which we must draw attention:

The offender must admit the full extent of his own criminality before the statutory framework can begin to apply, and he must agree to participate in a formalised process which has its own immediate purposes intended to avoid some of the problems which the earlier processes could create.

Provided the offender admits the full extent of his criminality the process is not confined to offenders who provide assistance in relation to crimes in which they participated, or were accessories, or with which they are linked.

This is largely a new process in which a post-sentence review of the sentence passed in the Crown Court can be reviewed in a judicial process on a reference back to the court by the prosecutor. That does not prevent there being such an analysis during a Crown Court sentencing decision.

The decision whether a reduction in sentence should follow a post-sentence agreement is vested in the judge sitting in the Crown Court. The court is enabled to take into account the specific post-sentence situation. That is quite different from the former practice to which we shall have to return in relation to the text regime.

If in the end the offender fails to comply with his agreement, that does not itself constitute a crime but he is liable to be brought back to the court and deprived of the reduction of sentence which has been allowed or would have been allowed if he had complied with the agreement in full.

2. Generally speaking, the 2005 Act provides "a comprehensive framework of general application for reviews of sentences whenever imposed and whenever the crime or crimes in question were committed". However, it is also clear that the legislation did not "abolish a well-understood feature of the sentencing process. There will be occasions when a defendant has provided assistance to the police which does not fall within the new arrangements, and in particular the written agreement. He is not thereby deprived of whatever consequent benefit he should receive. The existing 'text' system, verified in the usual way, .... may still be used, where appropriate, either before sentence is imposed in the Crown Court, or indeed at the hearing of an appeal against sentence. In summary, pragmatism still obtains. The investigative process is not to be deprived of the assistance derived from those who are, for whatever reason, unable or unwilling to enter into the formalised process envisaged in SOCPA, but they must take the consequence that any discount of sentence may be correspondingly reduced, simply because the value of assistance provided in this form is likely to be less, and is in any event less readily susceptible to a safeguarding review .... than it would if provided under the formal arrangements now available."
3. For present purposes, therefore, it is sufficient to emphasise that the introduction of the statutory regime did not extinguish what we shall describe of the text regime, nor alter the principles which applied to it, nor indeed create any potential for conflict between them. What is clear, however, is that for good reason the statutory regime is much more formalised. For example, it requires complete disclosure of the offender's criminality, and it can be managed so as to ensure that the offender who reneges on the agreement in any way, after obtaining the sentencing advantage to which he would be entitled if he had complied with it, may be deprived of that advantage. In broad terms, a SOCPA agreement offers much greater potential benefit to the public interest in the administration of criminal justice than the text regime. It therefore follows that, save in unusual circumstances, the sentencing discount, with every justification, will be correspondingly less for those who adopt the text regime than for those who follow the statutory regime.
4. The problem to which the text, but not the statutory, regime is susceptible is the provision of information after the conclusion of the sentencing decision. This situation is expressly addressed by the statutory structure. It is permitted by it. That is how it is meant to work. Where, however, the offender wishes to limit his co-operation to the text regime, it is normally unrealistic for him to anticipate any reduction in sentence on appeal to the court if he has pleaded not guilty and has not set this process in motion by the time the Crown Court has sentenced him.
5. The principle is clear. We derive it from R v A and B [1999] 1 Cr App R(S) 52 (we shall not adorn this judgment with a recitation of the many subsequent decisions of the court in which the principle was applied):

"The Court of Appeal, Criminal Division was a court of review; its function was to review sentences imposed by courts of first instance, not to conduct a sentencing exercise of its own from the beginning. It ordinarily relied entirely, or almost entirely, on material before the sentencing court. A defendant who denied all guilt and withheld all co-operation before conviction could not hope to negotiate a reduced sentence in the Court of Appeal by co-operating after conviction."

The rule, of course, permits of exceptions. One partial exception is described by Lord Bingham CJ in his judgment in this way:

"It sometimes happened that a defendant pleaded guilty and gave help to the authorities, for which credit was given when sentence was passed. It might be that the value of the help given was not at that stage fully appreciated, or that the help given thereafter greatly exceeded, in quality or quantity or both, what could reasonably be expected when sentence was passed, so that the credit given did not reflect the true measure of the help received by the authorities .... In such cases the court should and did review the sentence passed, adjusting it if necessary to reflect the value of the help given, and to be given, by the defendant."

6. This exception to the rule is a recognition of the need for a need in practice of an element of flexibility in the approach of this court where the offender has sought to provide assistance and take advantage of the text regime before sentence has been passed. Where assistance justifying the provision of a text has been given by the offender, but through oversight or misadventure, by, for example, the prosecuting authorities, the judge is ignorant of it, this court will consider text material which should have been before the Crown Court and take it into consideration on an appeal. This approach will be seen in operation in the judgment in two of the individual cases to which we must now turn.

R v H

7. H is now 36 years old. On 3, 4 and 6 September 2007, in the Crown Court at Southwark, before His Honour Judge Testar, he changed his plea to guilty to count 3 (controlling prostitution for gain), count 6 (supplying a controlled drug of Class A) and count 7 (possessing a controlled drug of Class A). On 14 September 2007 he was sentenced as follows: count 3, four-and-a-half years' imprisonment; count 6, 18 months' imprisonment to run consecutively to the sentence on count 3; and count 7, three months' imprisonment to run concurrently. An appropriate order under section 240 of the Criminal Justice Act 2003 was made. Two further counts (causing child prostitution and controlling prostitution for gain) were ordered to remain on the file on the usual terms.
8. There were co-accused. MD changed his plea to guilty to one count of controlling prostitution for gain, two counts of possessing a controlled drug of Class A with intent to supply, one count of possessing a prohibited weapon and one count of possessing ammunition without a certificate. He was sentenced to a total of thirteen years' imprisonment. YH changed his plea to guilty to controlling prostitution for gain. He was sentenced to two years' imprisonment. KJ also changed his plea to guilty to controlling prostitution for gain and to possession of drugs of Class C with intent to supply. He was sentenced to five years' imprisonment. GR changed his plea to guilty to controlling prostitution for gain and possession of Class A drugs with intent to supply. He was sentenced to a total of seven years' imprisonment.
9. The applicant appealed against sentence shortly after he had been sentenced, within the statutory time limit. That application was refused by the single judge. He now renews his application for leave to appeal against sentence. He is well out of time. He does not advance any of the grounds which were before the single judge. He advances new grounds on the basis of assistance provided to the authorities.
10. The case against the applicant related to his control of young women who were prostitutes working out of a number of brothels in Central London. They mainly came from Eastern Europe. They worked under coercion. They were treated by the applicant and his co-accused as if they belonged to them as property to be used to generate revenue through the provision of sexual services.
11. The prosecution case focused on the experience of one of these women. She was but one of a number of women controlled in the same way. She was 16 years of age and from Lithuania. In early 2006 she was persuaded to come to this country by traffickers. On her way here she began to realise that she was indeed being brought here for the purposes of prostitution. Once she arrived she was met by two men and she was sold to two of the co-accused.
12. For the next seven months or so she worked in a number of brothels in Central London run by the applicant. These premises were flats rented by him under the pretext that they would be used for ordinary residential purposes. When she arrived at the first of these brothels, the young woman was provided with revealing clothing. Her nails and her hair were styled. Photographs were then taken for use on the website to advertise her services. She was told that to buy her way out of the control of her owners she would need no less than £2,000. She, like other women working for the applicant, was expected to dress in a way that was dictated to her. She was required to perform specific sexual services, again as dictated to her. She would be coerced to have sexual intercourse with six clients a day. She passed all her earning to the applicant and received tips from him. She was expected to work when she was ill and even when she was menstruating.
13. There came a time when she was told to leave the applicant's brothel. She was returned by the co-accused to the original traffickers who had brought her to this country. She was taken to Belgium. She managed to escape and she returned here. She turned to the only security, such as it was, offered to her in this country; it was offered by the applicant. She resumed working in one of his brothels. She was told by the applicant that he had bought her from the co-accused for £10,000. She was now contracted to work for him. The value of that contract was £6,000; she would have to pay it off through prostitution. She now worked both in the brothel and provided an "out-call service", travelling to hotels to meet clients in their rooms.
14. On one occasion she was provided with cocaine (the subject matter of count 6). She also provided sexual services for the applicant's friends at less than the normal rate. On more than one occasion she expressed a wish to leave the applicant's control. This was met with protests and opposition from co-accused who played a part in the day-to-day running of the brothel. She was told (not by the applicant) that if she ever left the brothel her legs would be cut off. On another occasion she was attacked with fists.
15. Towards the end of October 2006 she was taken to Wolverhampton. She was told to work as a prostitute from a room above a public house. This time, just 17 years old, she managed to escape. She contacted the police and she was taken to safety.
16. On 12 December 2006 the applicant was arrested at an address in Woolwich. A search of the address found him to be in possession of a small quantity of cocaine (the subject matter of count 7).
17. When he was interviewed under caution he refused to answer any questions in relation to the offence which was later encompassed in count 3 of the indictment.
18. The applicant has a number of previous convictions: 1997, obtaining property by deception and going equipped to cheat, for which he received a community order; 2002, possession of an offensive weapon, for which he was fined; 2004, for a similar offence, he was sentenced to three months' imprisonment; and 2005, for two offences of possessing a false instrument, he received a community order.
19. The trial of all these counts was due to begin on 3 September 2007. The applicant then pleaded guilty to count 3. He subsequently pleaded guilty to counts 6 and 7. A written basis of plea was submitted. So far as material to the matters we have to consider, it asserted that the applicant did not know, suspect or believe that any complainant had been trafficked into this country against her will, or was engaged in prostitution against her will. He did not know that the complainant, whose case we have addressed in detail, was under 18 years of age. It was also asserted that the applicant had never been involved in or aware of any coercion of the complainant in the form of sexual violence, assault or similar activity. In relation to count 6, the basis of plea asserted that this was a social supply of a small quantity of drugs in the context of consenting adults socialising in each other's company and was not part of the exercise of control over the young woman. As to count 7, it was asserted, as the Crown had accepted, that the drug was kept for personal use.
20. The precise circumstances in which the basis of plea came to be accepted are not entirely clear. The Crown accepted that the applicant did not know that the young woman was 18 years of age. It looks as though the judge accepted the accuracy of all three paragraphs of the basis of plea in count 3, as we have set out.
21. In passing sentence the judge narrated the essential features of the case. This young woman had no money or means of escape. She was treated as a "commodity" over a long period of time for the purposes of prostitution. The applicant had a number of premises which were used for the purposes of prostitution. His detailed records showed that this was a highly organised business. The young woman was but one of many women who were used in this way. She had worked under compulsion.
22. The judge decided that the starting point on count 5 for the applicant was five-and-a-half years' imprisonment. The guilty plea was noted. The judge also took account of the supply of cocaine to the young woman at a time when she was very young. In the judge's view she had been introduced to cocaine by the applicant. Credit was given for the guilty pleas; the totality of sentence was borne in mind; and hence the order for a total term of six years' imprisonment.
23. In refusing leave the single judge observed:

"The offence of controlling prostitution was, given the facts, serious and a sentence of four years six months was not manifestly excessive. The consecutive sentence of 18 months for the drug offence, a wholly different matter to the prostitution offence, was entirely correct in principle and not excessive."

We entirely agree with those observations.

24. We turn to the new ground of appeal. It is said to be relevant to mitigation of sentence. It is alleged that the applicant has assisted the police and supplied them with information. As a matter of strict accuracy, the assistance occurred after the applicant had entered acceptable pleas to the indictment and after he had been sentenced. However, it is clear from a detailed examination of the facts that this was a case which fell within one of the exceptional cases permitting for flexibility identified by Lord Bingham CJ in R v A and B.
25. As we have said, the applicant was arrested on 12 December 2006. He was taken to a police station. In due course he was interviewed under caution. After the interview he told the officer in the case that he wished to pass on information to the police. Two days later, while still at a police station, he was approached by officers from a "Source Unit". However, it was decided at that time that there was an insufficient opportunity to conduct a proper de-briefing. The applicant was told of the difficulty and informed that he would be contacted while he was on remand.
26. In custody he shared a cell with one of his co-accused. Nevertheless, on at least one occasion the applicant spoke to the officer in the case at court during the preliminary stages of the proceedings. He continued to state that he still wanted to pass information on to the police, but that he still had not been seen by anyone. The Source Unit was again notified.
27. In the end, he was not seen before the trial. There were perhaps three reasons for this: first, at that stage he proposed to plead not guilty; second, a meeting was considered difficult to arrange because the applicant was being held in custody in very close proximity to at least one of his co-accused; and third, we are told that the Source Unit in question was "suffering from a shortage of resources".
28. By the time of the sentencing hearing, by when time the applicant had pleaded guilty, he again approached the officer in the case and again expressed a wish to pass information on to the police. It therefore appears that, notwithstanding a number of occasions when the applicant had expressed a willingness to pass on information, for reasons at least partly to do with resource problems, he had not been provided with an opportunity so to do. Secondly, his willingness to pass on information was not disclosed to the Crown Prosecution Service or to prosecuting counsel, and therefore no text was prepared. Thirdly, his willingness to do all this was not even known to his legal representatives. It was understood by the police that he did not want them to know what he wanted to do. The end result was that neither he nor those acting for him sought that a text should be provided to the judge. Thus it was that the sentencing judge was not aware of the applicant's willingness to pass on information. Understandably, he did not take that into account in passing sentence -- indeed there was nothing which he could have taken into account.
29. Shortly after he had been sentenced, the applicant was telephoned by the officer in the case. He confirmed that he wished to pass on information. When his application for leave to appeal against sentence was refused, it does not appear that the question of possible assistance was raised either at the time of refusal or in the preparation of the papers which were put before the single judge. It was not until 31 January 2008 that the applicant was introduced to officers from the Source Unit. Since then he has passed on information on a regular basis. It appears that it was not until 18 September 2008 that he first told his legal representatives that he had provided some assistance to the police. On 10 October 2008 they contacted the police and the police then confirmed that he had indeed done so.
30. Eventually, on 6 January 2009, solicitors acting for the applicant contacted the CPS by e-mail seeking a request to enter into a "retrospective" agreement under section 74(2)(c) of the 2006 Act in order to allow proper recognition and reward to be granted for the assistance.
31. On 30 March 2009 it was decided that this information was not appropriate for a section 73 or section 74 agreement. The applicant was advised to appeal to this court in accordance with the principles set out in R v A and B. Accordingly, the applicant renewed his application for leave to appeal out of time. On 21 August 2009 the case was listed. The CPS was not represented. The appeal was adjourned. The principal purpose of the adjournment was to allow the CPS to reconsider the decision whether to enter into a statutory agreement. It was confirmed on 16 September that a retrospective statutory agreement would be inappropriate.
32. Thus it is that the case comes before us. We have been supplied with a text. We take the view, first, that we should in the circumstances of this case take account of the material that is included in the text which was not before the judge. Given the material, its extent and its value, we think that some allowance should be made to the applicant for the material that he has provided.
33. Accordingly, we shall grant the application. This will now be the hearing of the appeal. We assume that the applicant does not wish to be present and has waived his right to be here, Mr Warrington?

MR WARRINGTON: My Lord, that is correct.

34. That being the case, we record briefly, without describing the material which we have considered, that the sentence should be reduced from a total of six years' imprisonment to a total of five years' imprisonment. That will be made up in the following way: count 3, four years' imprisonment; count 6, twelve months' imprisonment to run consecutively; and count 7, three months' imprisonment to remain unchanged and to run concurrently. No further order is made. To that extent this appeal is allowed.

R v D

35. On 8 May 2009, at Sheffield Magistrates' Court, the appellant D pleaded guilty and was committed to the Crown Court for sentence on two offences. On 11 May 2009, in the Crown Court at Sheffield, he pleaded guilty to an indictment. On 5 June he was sentenced for both the committal and the indictment in this way: on count 1 of the indictment (burglary), ten months' imprisonment; count 3 (theft), six months' imprisonment; count 4 (theft), twelve months' imprisonment; count 5 (attempted theft), six months' imprisonment; count 9 (theft), six months' imprisonment; count 13 (burglary), two years' imprisonment. All those sentences, save for that on count 13, were ordered to run concurrently; the sentence on count 13 was ordered to run consecutively. As a result of his criminal activities, he was in breach of a suspended sentence order comprising six months' imprisonment suspended for twelve months, imposed in September 2008 at Sheffield Magistrates' Court for two offences of burglary. That order was revoked. He was re-sentenced to six weeks' imprisonment on both counts to run concurrently. He was also before the court for possession of a Class A drug (heroin), for which he was sentenced to three months' imprisonment concurrently. On the committal for sentence, he was sentenced for dangerous driving to four months' imprisonment, consecutive to the sentences imposed on the indictment. For the remaining offences he was sentenced either to no separate penalty or in one case (theft), to three month's imprisonment to run concurrently. The end result was a total sentence of 40 months' imprisonment. An appropriate order was made in relation to the days already spent on remand, and he was disqualified from driving for a period of twelve months in relation to the driving offence.
36. The appellant appeals against sentence with the leave of the single judge, in the context of fresh material.
37. A co-accused pleaded guilty to four counts of theft on the same indictment, as well as count 13 (burglary). He also pleaded guilty to assault occasioning actual bodily harm and an offence of burglary on another indictment with which the appellant was unconnected. The co-accused was also in breach of a suspended sentence order imposed on 10 September 2008 for taking motor cars without consent and a number of further offences of burglary and theft. He was sentenced to a total of four years' imprisonment.
38. The facts are these. The first matter occurred just after midnight on 14 October 2008, that is shortly after the appellant had appeared before the magistrates' court and been given a suspended sentence. The police heard reports of a suspicious white van. They went to the scene. They found the van and attempted to stop it. The appellant drove it straight at one of the officers. The officer was at the wheel of the police car and he had to move out of the way of the van. The van mounted the pavement as it made good its escape. It mounted another pavement to get away from another police car before going through a red light. It was lost for a short time, but eventually it was tracked. The appellant was identified and arrested. He was uninsured. He was interviewed. He made no admissions.
39. A few days later, on 16 October 2008 a teacher at a nursery school left her handbag in her office for a short time. When she returned she found that a number of important items had been taken from her bag. They included her purse, credit cards and a mobile phone, as well as her keys to her jeep. Her jeep was driven away from the car park.
40. Three hours later the appellant and his co-accused under a pretext went to a business centre. They stole a cash tin. The co-accused became involved in a tussle with a female accountant. He punched her twice. Her handbag was taken. The stolen jeep was taken to a supermarket car park. A woman's handbag was stolen from the driver's footwell as she loaded her shopping into her car. As a result she fell over and suffered a serious injury to her hip and elbow.
41. A few days later the appellant attempted to use the credit card from the handbag to purchase various goods. The stolen jeep was not found until 18 October.
42. On 27 October another woman had her handbag stolen from the boot of her parked car in a supermarket car park. A few minutes later her credit card was used to withdraw cash from a machine.
43. At 4.30pm on 10 November the owners of a property returned home to find that it had been burgled and a flat screen plasma television stolen from it.
44. Eventually the appellant and his co-accused were arrested. On his arrest his home was searched. Officers found 208mg of heroin.
45. Three days later, on 30 November, he stole from a shop plastic dolls of nominal value.
46. The judge took note of the fact that the appellant has many previous convictions. He was born in August 1982. He is a man of mature years. He has 30 previous convictions for theft and four for burglary. The judge took the view that the combination of all these offences required a significant custodial sentence. Credit was given for the guilty pleas. Account was taken of the principle of totality. Reference was made to the contents of the pre-sentence reports. The judge was unimpressed; he regarded the appellant as a habitual thief. In fact, he was rather more than that: he was a burglar and he did not hesitate to use his vehicle as a weapon.
47. There were no grounds of appeal against this sentence which was passed on the basis of the facts as presented to the judge. None was even drafted. If anything, the sentence could be regarded as modest.
48. However, the police were willing to provide a text relating to the assistance given by the appellant. It is now said that if the court considers the contents of the text as worthy of credit, the appellant is entitled to a reduction in his sentence.
49. The text which we now have should have been available to the sentencing judge. The assistance justifying the provision of such a text had already been given by the time of the hearing. The problem facing the appellant at the hearing was that he could not ask for the case to be adjourned without his co-accused, who was with him in the dock at court, working out for himself that the object of the adjournment was to enable a text to be provided or some similar process to be arranged.
50. The circumstances of this case, where the text should have been available but was not, and should have been prepared by the police to hand to the prosecuting authority but was not, requires us again to apply the principle of sensible flexibility to which we have referred earlier in this judgment. We have considered the material drawn to our attention. It is inappropriate to detail it in a public court. We have concluded that a proper allowance to be made for the value of that material to the prosecuting authorities and the long-term administration of justice should lead to the sentence of 40 months' imprisonment being reduced to a total sentence of 30 months' imprisonment. The way in which that will be achieved will be to order that the sentence for the burglary on count 13 (which is one of the consecutive orders) should be reduced from two years' imprisonment to 14 months' imprisonment. That will produce a total of 30 months' imprisonment. To that extent the appeal is allowed.

R v Yasser Chaudhury

51. The applicant Yasser Chaudhury is aged 30. On 21 May 2009, in the Crown Court at Wolverhampton, before His Honour Judge Nawaz, prior to a jury being sworn, he changed his plea to guilty to robbery (count 1) and dangerous driving (count 2). On 12 June 2009 he was sentenced to four years' imprisonment for robbery and twelve months' imprisonment for dangerous driving, to run concurrently. He was disqualified from driving and ordered to undertake an extended driving test. The total sentence was one of four years' imprisonment (less the time spent on remand in accordance with section 240 of the 2003 Act).
52. The applicant's application for leave to appeal against sentence has been referred to the full court by the Registrar.
53. The facts are these. At about 9.30am on 13 April 2008, Mr Williams and Mr Robinson, two employees of an electrical firm in Bearwood, went to the bank to deposit the firm's weekend takings. It was something they did often. Mr Robinson drove. He parked close to the bank. Mr Williams got out of the car. He had a case with him which contained the takings. As he walked towards the bank he felt someone grab the case. There was a struggle. Mr Williams fell to the ground. A second man arrived. The struggle continued until Mr Williams was forced to release the case. It contained just under £2,000 in cash and just under £700 in cheques. The two men ran away with the case.
54. Mr Williams, undaunted, returned to Mr Robinson's car. Mr Robinson drove his car in the direction in which the two men were seen to be running. They observed them get into the back of a Mondeo car. They noted the registration number. They followed the Mondeo. Apart from the two robbers, the Mondeo contained the applicant as the driver and a front seat passenger. The Mondeo slowed down by an alley. The two men who had taken the case jumped out of it and they ran off. Mr Robinson and Mr Williams continued to follow the Mondeo. The police were contacted via a mobile telephone. The Mondeo stopped. So did Mr Robinson. The applicant and the front seat passenger got out of the Mondeo. They walked menacingly back towards Mr Robinson. Mr Robinson and Mr Williams noted the description of the driver. They saw that the driver had something black in his hand which they thought might very well be a weapon. Mr Robinson reversed a little way. The applicant and his passenger got back into the Mondeo and drove away. Mr Robinson and Mr Williams continued to follow the Mondeo, but eventually they became stuck behind a dust cart. The Mondeo drove onto the pavement, around some parked cars and back onto the road, where it collided with a parked car. Mr Williams and Mr Robinson ceased their chase. The stolen case was later found. All its contents had gone.
55. The police began their investigation. Before they were able to trace the car whose registration number had been noted by Mr Robinson and Mr Williams, the applicant went to a police station in Manchester and there surrendered. He offered an account which was plainly untrue: his car had been hi-jacked and he had been forced to commit the offence.
56. An application was made for a sentence indication in accordance with the well-known principles laid down in Goodyear. The judge was asked if he would be willing to indicate, on the basis of plea which was to be tendered, the maximum sentence he would impose if the plea was tendered. The basis of plea included the following assertions:

"1. [The applicant] was not part of any pre-conceived plan prior to 14 April 2008 to commit a robbery.

2. On 14 April 2008 he drove ....(Blake) to Birmingham on the pretext that Blake was going to pick up some keys.

3. When they arrived in Birmingham it became apparent to [the applicant] that a robbery was to take place. No weapons were to be used.

4. [The applicant] made it clear that he was unwilling to be part of any such offence but was coerced by Blake into playing what he was told was a very minor part in helping others to get away from the area.

5. Knowing the reputation of the people involved, [he] reluctantly went along with it.

6. After the incident [he] drove Blake back to Manchester and then immediately drove to Didsbury Police Station in Manchester.

7. In January 2009, [he] amended his defence case statement and the Crown and police were informed that he knew details of the offenders involved in the robbery. This information had been provided and the police had been informed that [he] would be willing to make a statement and attend court if necessary."

57. We are told that the Crown's position was that they could not "gainsay" what the applicant had to say about the time at which he became involved in the robbery. If that word was used, it should not have been. The Crown should never indicate that they cannot "gainsay" what an offender has to say. One way or another they must take a stand. This was an assertion by the applicant who had told demonstrable lies when he had gone to the police station to report himself. Be that as it may, the Crown said that it was possible that the applicant had become involved in the robbery at a very late stage. It was also pointed out that the identify of the others involved in the robbery was known; that there was no direct evidence. It was, however, known that all of them had substantial previous convictions for robbery. The Crown accepted that it was possible that some coercion could have been involved in the applicant's decision to play a part in the robbery; but once he was involved he played a full part in it. The Crown accepted that no weapons were used in the robbery. Although Mr Robinson described the driver as having something black in his hand, there was no further description. The object could have been something like a mobile telephone.
58. The Crown also made clear that the information provided by the applicant would not allow any prosecutions of any individuals. Until the stage at which he might enter a plea of guilty, the Crown, quite rightly, would not take a statement from him. If he did provide a statement, that would be of value to the prosecution. But at this stage it was submitted that the judge could not take that into account; the process had to await until the statement was properly obtained.
59. Following all this, the judge said that, leaving to one side the assistance given by the applicant, following a trial it would be unlikely that a sentence of less than eight years' imprisonment would be appropriate. On that basis, making a reduction of one year for the role accepted on the basis of plea and his antecedents, after a trial the sentence would be about seven years' imprisonment. The applicant, having entered a guilty plea at a very late stage, would not be entitled to the full discount in sentence. The judge indicated that he could expect something in the region of about 10%, but no greater deduction. On that basis the appropriate sentencing bracket would be in the region of five to six years' imprisonment on a guilty plea.
60. The applicant pleaded guilty to both counts of the indictment. He immediately signed an agreement to assist the prosecution and to make a statement. The hearing was adjourned until 12 June 2009 so that a pre-sentence report could be prepared. The pre-sentence report recorded that the applicant minimised his involvement throughout. He stated that his own role was that of someone who had unwittingly become involved in the offences. It was, however, recorded that he understood and had insight into the impact of his behaviour on the victims and indeed on his own family. As a result of this offence he had lost his employment as a social worker. Prior to the offence he had been involved in a relationship which had ended because of an illness in his partner. He was assessed as presenting a low to medium likelihood of re-offending and a medium risk of harm to the public.
61. In passing sentence the judge took the view that the robbery was not a particularly sophisticated offence. It was "effectively a street snatch". No weapons were involved and no violence was used, apart from a struggle to force Mr Williams to release his case. The judge took the view that the applicant was to be treated as a man of good character. He was not unintelligent. He had had the advantage of attending university. He had family responsibilities.
62. The judge then took account of the statement which had been produced and of the applicant's willingness, as shown in the statement, to give evidence on behalf of the prosecution if that opportunity should arise. It was further urged on his behalf that an additional discount should be ordered because he had entered into the section 73 statutory agreement.
63. The judge then turned to the nature of the offence. Having given an earlier indication as to sentence, and taking into account the reduction for the late guilty plea, he concluded that he should make a further reduction to allow for the co-operation of the police which "would for some time put [the applicant] in fear for his own safety and for that of his family". He reduced the sentence to a total of four years' imprisonment and ordered the sentence for the offence of dangerous driving to run concurrently.
64. The statement which was shown to the judge, and which we have seen, purports to be, but is not, a statutory written agreement under section 73 of the 2005 Act. It was not a properly authorised statement within the statutory structure. If the applicant had reneged on it, it would not have been enforceable. However, it is clearly understood that the applicant entered into the document and signed it in good faith. He believed that it was a statutory agreement and the judge treated it as if it were. That was the position as it was before the judge.
65. The document has been re-examined by the Crown Prosecution Service. It is clear that it is not an enforceable agreement. More important for this purpose (and we put it neutrally) it is short on credibility. The Crown's view is that it would not be appropriate for the statutory regime to be made to apply post-sentence. The Crown will therefore not enter into a new agreement that in effect rectifies the problems which were unknown but from which the earlier agreement suffered.
66. The argument before us can be summarised briefly. The case should have been approached by the judge as if this were a statutory agreement. The authorities suggest that a much greater discount should be allowed following a statutory agreement than would have been allowed in relation to a text arrangement. The submission then asserts that the overall sentence of four years' imprisonment was in the context manifestly excessive.
67. We have considered that submission. We have concluded that, without for one moment implying that this was a statutory document, it is fair to the applicant to approach the document in the same way that the judge did. Having done that, we have examined the material provided by the applicant in the overall context of the case, having regard to all that was known about the applicant, the offence, and his participation in the activity of others. Our conclusion is that the judge took all the relevant considerations into account. He acknowledged that there had to be a discount for the fact that the applicant had signed this document. Having looked at the document, he came to the conclusion that a discount bringing the sentence down from five to six years to four years in total was sufficient. We take the same view as the judge. In our judgment his analysis and assessment is not open to criticism in this court. Accordingly this application for leave to appeal will be refused.