Thorpe, R. v

Factual and Procedural Background

This judgment, delivered by Judge Cavanagh, concerns three renewed applications by the Appellant for leave to appeal sentence: (1) an application for a very late extension of time and renewal of leave to appeal the Appellant's 2008 sentence of imprisonment for public protection ("IPP") imposed after conviction for a robbery (referred to below as "Robbery A"); (2) a renewed application to appeal the same 2008 sentence on its merits; and (3) an application for leave to appeal the Appellant's June 2024 total sentence of six years' imprisonment imposed after guilty pleas to two conspiracies to steal and one fraud offence (referred to below as "Offences B"). A reporting restriction previously made in relation to one count in the 11 June 2024 hearing was lifted at the start of the hearing. The Appellant is represented pro bono by Attorney Fooks. The single judge had earlier refused the extension and renewal in relation to Robbery A; the renewed applications were relisted to be heard together. The court refused the extension of time and renewal in respect of Robbery A and refused leave to appeal in respect of Offences B.

Legal Issues Presented

1. Whether to grant an extension of time (5,818 days) and renewal of permission to appeal the 2008 IPP sentence imposed for Robbery A.
2. Whether, if the extension were granted, leave to appeal the 2008 IPP sentence would be arguable on grounds that it was manifestly excessive, should have been determinate, or that a later diagnosis of Asperger's syndrome would have affected assessment of dangerousness.
3. Whether to grant leave to appeal the sentence imposed on 11 June 2024 for Offences B (total six years' imprisonment), including challenges to the judge's inferences about the Appellant's role, alleged manifest excessiveness and alleged disparity with the co-defendant's sentence.

Arguments of the Parties

Appellant's Arguments

• The 2008 IPP sentence was manifestly excessive and a determinate sentence should have been imposed.
• The subsequent (2015) diagnosis of mild Asperger's syndrome may have affected the 2008 assessment of dangerousness.
• In relation to Offences B: all individual sentences were manifestly excessive; the judge's inferences as to the Appellant's leading role were unsustainable; and there was unlawful disparity with the co-defendant's sentence.
• Delay in bringing the Harrow appeal resulted from solicitors' and counsel's misunderstanding, not from the Appellant's own fault.

Prosecution / Sentencing Judge's Position (as recorded)

• For Robbery A the sentencing judge found the Appellant dangerous under the statutory test, imposed IPP (with a notional minimum term of 5.5 years) and had relied on a pre-sentence report recommending IPP.
• For Offences B the judge treated the ATM conspiracy as highly organised (category A/high culpability), assessed harm and property damage between £10,000 and £100,000, applied aggravating weight for a long record, allowed mitigation and appropriate plea discounts, and imposed a lead sentence of six years with concurrent sentences for other counts.
• The sentencing judge's factual inferences about the Appellant's leading role and the differentiation (or lack of disparity) between the Appellant and the co-defendant were justified on the evidence before the court.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first lifted an earlier reporting restriction and confirmed no risk of prejudice would arise from publishing the judgment.

On the Robbery A applications the court examined each ground and the extension request. It concluded:

• The statutory test in force in 2008 permitted IPP where a serious specified offence and significant risk of serious harm on re-offending existed; robbery qualified and the sentencing judge applied the correct legal test and considered alternatives. Attorney General's Reference No 55 of 2008 post-dated the sentence and did not mean the judge erred.
• The facts (organiser role, use and threat of weapons, prior similar robberies and pre-sentence report recommending IPP) justified the dangerousness finding; it was not arguable that the IPP sentence was manifestly excessive or wrong in principle.
• The later 2015 diagnosis of mild Asperger's syndrome did not undermine the 2008 dangerousness assessment: the psychologist did not say the diagnosis meant the Appellant was not dangerous nor that treatment would reduce risk; the pre-sentence report recorded no mental-health impairment at the time.
• Accordingly the plea that the sentence was excessive was not arguable and the very large delay in seeking permission was unexplained; extension of time and renewal were refused.

On Offences B the court reviewed the facts of the ATM attempt, associated vehicle thefts and an insurance fraud. The judge's findings as to organisation, planning, the Appellant's preparatory steps (use and disposal of vehicles, false plates, burner phones, yards used in preparation), and his role (obtaining and disposing of the Audi, involvement in planning) were accepted as supported by the evidence. The court reasoned:

• The sentencing judge correctly placed the ATM conspiracy in a high culpability category (category A) given sophistication and planning; the harm assessment and placement at the top of category 2A was reasonable.
• It was not arguable that the judge's inferences as to a leading role were unsustainable; being in the car during the attempt could indicate a senior role, and other evidence showed planning and central involvement.
• The asserted disparity with the co-defendant was not shown to be such that a right-thinking member of the public would conclude the administration of justice had gone wrong; differences in total sentence were explained by different convictions and merits of concurrent sentences.
• Mitigating factors (Asperger's diagnosis, family circumstances, good prison behaviour) were considered by the judge but did not render the overall sentences manifestly excessive; the Appellant's long and serious record justified the aggravation applied and the resulting sentences and credit for plea were within rational judgment.

For these reasons the court concluded leave to appeal in respect of Offences B was not arguable and refused it.

Holding and Implications

THE COURT REFUSED THE EXTENSION OF TIME AND RENEWAL OF LEAVE TO APPEAL IN RELATION TO THE 2008 IPP SENTENCE, AND REFUSED LEAVE TO APPEAL THE 11 JUNE 2024 SENTENCES.

Implications: The Appellant's 2008 IPP sentence and the total six-year sentence imposed on 11 June 2024 remain in force. The court treated the matters as within established law; no new precedent was created and the decision applies established principles to the facts before the court.