Rooney & Ors, Re Attorney General Reference

Factual and Procedural Background

On 1 April 2005 at Antrim Crown Court, the Defendant pleaded guilty to robbery contrary to section 8(1) of the Theft Act (Northern Ireland) 1969 and to handling stolen goods. On 6 June, he was sentenced to 9 years imprisonment for robbery and 2 years for handling stolen goods, to run concurrently with a 15-year sentence he was already serving for previous offences. Other Defendants pleaded guilty to robbery on 12 April 2005 and were sentenced to custody probation orders with varying terms of imprisonment and probation.

The Attorney General sought leave to refer these sentences to the Court of Appeal under section 36 of the Criminal Justice Act 1988, contending that the sentences were unduly lenient. Leave was granted, and the application proceeded on 23 September 2005.

The robbery occurred on 7 January 2003 outside a bank in The City. Police had prior intelligence of an armed gang planning to rob security personnel. A police surveillance operation was in place, with officers acting as security staff carrying a cash box containing £25,000. The Defendant seized the cash box after striking an officer with a gun, which was later found to be an imitation firearm. Other Defendants were arrested at or near the scene, some absconding before sentencing. Forensic and mobile telephone evidence linked the Defendants and indicated planning and coordination.

Legal Issues Presented

1. Whether the sentences imposed on the Defendants were unduly lenient.
2. The appropriateness of concurrent versus consecutive sentences, particularly in relation to the Defendant already serving a sentence for previous offences.
3. The proper procedure and principles governing advance indications of sentence by a judge in criminal cases.
4. The implications of discussions between the judge and counsel, especially where prosecuting counsel was absent.

Arguments of the Parties

Defendant's Arguments

• The Defendant's solicitors argued that the Attorney General's reference was misconceived because the Defendant pleaded guilty based on an indication from the trial judge regarding sentence.
• They claimed prosecuting counsel had agreed to allow defence counsel to discuss sentence with the judge alone and that there was an understanding that concurrent sentences would be imposed.
• They suggested the prosecution had acquiesced in the trial judge's approach to concurrent sentencing.

Prosecution's Arguments

• Prosecuting counsel denied agreeing to defence counsel meeting the judge alone or consenting to concurrent sentences.
• He stated that if concurrent sentences were imposed, the matter would be "out of his hands," and he was not consulted by the judge before the decision.
• He asserted that he should have objected to the meeting but did not because he believed the judge had already made his decision.
• He maintained that the appropriate sentencing range for robbery was between 4 and 10 years, which the Court later found to be incorrect.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by examining the factual background and the nature of the offences, emphasizing the serious and well-planned nature of the robbery involving imitation firearms and violence. It identified multiple aggravating factors, particularly in the Defendant's case, including committing the offence while on bail and an extensive criminal record.

Referencing established case law, the court clarified that the appropriate starting point for sentencing in such commercial robberies involving firearms or imitation weapons is 15 years, with reductions for early guilty pleas. The sentences imposed (ranging from approximately 7 years) were found to be unduly lenient as they did not reflect the severity and planning involved.

The court strongly disapproved of the trial judge's decision to impose concurrent sentences on the Defendant, which effectively nullified additional punishment for the January 2003 offence. It held that the offences were separate and unrelated, and the concurrent sentencing was fundamentally wrong in principle.

The court expressed grave concern over the absence of a verbatim record of discussions between the judge and defence counsel, and the absence of prosecuting counsel from these discussions. It emphasized that sentencing discussions must include both prosecution and defence counsel to maintain fairness and transparency.

Given conflicting accounts of what was agreed in chambers and the possibility that the Defendant pleaded guilty relying on the judge's indication of concurrent sentences, the court exercised its discretion to refuse the Attorney General's application in the Defendant's case and in the cases of the other offenders.

The court reviewed and endorsed recent authorities on the proper procedure for advance indications of sentence, notably the decision in R v Goodyear. It adopted a set of rules emphasizing that advance indications should only be given upon the defendant's request, based on an agreed factual basis, and with proper representation of both prosecution and defence, preferably in open court or in court sitting in chambers with full recording.

The court underscored the principle of open justice, while recognizing that some flexibility is necessary to protect defendants' interests in advance indication applications. It mandated that such applications should no longer take place in judges' private rooms but in court settings where records are kept.

Holding and Implications

The court held that the sentences imposed were unduly lenient in principle, particularly the imposition of concurrent sentences on the Defendant, which was fundamentally incorrect. However, due to the procedural irregularities surrounding the sentencing indications and the possibility that the Defendant pleaded guilty based on an expectation created by the judge's indication and prosecuting counsel's silence, the court exercised its discretion to REFUSE the Attorney General's application for increased sentences.

The direct effect is that the original sentences stand. No new precedent altering sentencing levels was set, but the court provided authoritative guidance on the proper conduct of sentencing discussions and advance indications of sentence, emphasizing transparency, fairness, and adherence to the principle of open justice. This guidance aims to prevent similar procedural issues in future cases and to ensure defendants are properly informed without improper pressure.