A masked robber who held a shopkeeper at knifepont has had his sentence more than doubled after a judge dubbed a colleague’s decision “puzzling”.
John Gallagher raided the Premier Store on Urquhart Road, Aberdeen, last July, and threatened the woman with a knife and pair of scissors before police intervened.
Lord Summers jailed the 51-year-old for three-and-a-half years at Edinburgh High Court in December – but now appeal judge Lord Beckett has increased that to eight years.
And Lord Beckett said it was “puzzling” Lord Summers didn’t consider keeping Gallagher under increased supervision once he leaves prison.
Heroin and crack cocaine
New court papers show that Gallagher, of Liverpool, moved to Aberdeen in 2019 as he has a relative living nearby.
Gallagher has two children from previous relationships and the court papers say that “his drug problem destroyed those relationships”.
They add: “He has been taking heroin and crack cocaine for 20 years, spending most of his money on it.”
On the evening of July 2 last year, Gallagher burst into the shop wearing a balaclava having drank alcohol and taken crack cocaine.
The 46-year-old shopkeeper asked him to remove the head gear – and he reacted by pulling out a knife.
Gallagher then pointed it at the terrified woman and made a stabbing motion before demanding money from the till.
‘Open it or I’ll stab you’
The shopkeeper managed to call 999 and tried to stop him taking cigarettes after he failed to get cash.
A 999 call operator heard Gallagher saying: “Give me the cigarettes. Open it, open it or I’ll stab you. Open it now.”
The shopkeeper was heard saying: “I don’t know how to open the till.”
Police officers happened to be driving by – and stopped outside the shop after getting a relay about the ongoing robbery.
The officers intercepted Gallagher as he left the shop.
He later admitted robbery and was jailed for three-and-a-half years.
But the Crown argued that was too lenient and took the matter to the Court of Criminal Appeal
Lord Beckett, who is Scotland’s second-most-senior judge, agreed.
He gave three reasons for this.
Leniency because raid failed
First, Lord Beckett suggested Gallagher received too much leniency because his robbery failed.
Lord Beckett said Gallagher fleeing empty-handed was “not the result of any restraint on his part, but of the shopkeeper’s resolute resistance.”
Had the sentencing judge, Lord Summers taken this into account last December, the original sentence could have been higher.
Robber being high on drugs was irrelevant
Second, Gallagher admitted he was intoxicated when raiding the shop.
Judges often take a dim view of a criminal’s willingness to take substances that could make them violent in public.
However, Lord Beckett believed the sentencing judge didn’t take this on board.
Lord Beckett said: “Gallagher’s admission to the reporting social worker that he was intoxicated, having taken crack cocaine, was a further aggravating feature.
“Gallagher presents a material risk to the public such that the judge should have imposed an extended sentence.”
Judge ‘considered irrelevant case law’
Third, before passing sentence, judges consider sentences in previous, similar cases.
However, Lord Beckett suggested the sentencing judge in this case looked at ‘irrelevant’ case law.
Lord Beckett said: “Whilst the sentencing judge had reported consideration of a number of cases, none was materially relevant as none appeared to relate to robbery in a commercial premises.”
For these reasons, Lord Beckett increased the sentence from three-and-half years to eight years.
Appeal judge ‘puzzled’ at decision
Gallagher has an extensive criminal record and many of his offences were serious, including robbery, assault and home invasion.
He has committed offences while on bail 14 times.
The reporting social worker told the court that Gallagher’s offending “demonstrates potential to cause serious harm.”
The social worker proposed post-sentence supervision would be beneficial for public protection purposes.
In such cases, judges have two options: Make the prison sentence longer, or order there be increased supervision once Gallagher has left prison.
However, the sentencing judge did neither of these last December.
Commenting on that now, Lord Beckett said: “The judge … might well have imposed an extended sentence, but refrained from doing so because the sentence he intended to impose was less than four years.
Longer jail term
“It is puzzling that he did not instead make a supervised release order in a case where the protection of the public from serious harm was such an obviously important consideration.”
Had Lord Beckett not intervened, Gallagher would have been able to leave custody on good behaviour after 21 months.
Now, Gallagher must stay behind bars for five years.
On leaving custody, Gallagher will be subject to licence conditions fixed by the Scottish Ministers.
Gallagher’s lawyer Sarah Loosemore had argued to the court that the original sentence was within the range of sentences available for the offence and there was no basis for the appeal judges to interfere.
Lord Beckett disagreed.
‘Robber sought to terrorise her’
In the newly released judgement, he wrote: “Gallagher robbed a shop in which a woman worked alone, providing a valuable public amenity.
“Such a person can be vulnerable to the kind of attack featuring in this case.
“Gallagher chose a time when there was no customer in the shop in order to exploit her vulnerability.
“The courts must do what they can to deter such offending.
“Shop staff must be protected from someone such as Gallagher.
“He decided to rob a shop, armed himself, donned a mask and sought to terrorise a shop-worker with a large and dangerous knife and, in this case, also a pair of scissors.”