R v Malachi Augustus Francis and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Treacy |
| Judgment Date | 20 March 2014 |
| Neutral Citation | [2014] EWCA Crim 631 |
| Date | 20 March 2014 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 201300109 C3; 201301044 C3; 201304190 C3 |
[2014] EWCA Crim 631
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Treacy
Mr Justice Bean
His Honour Judge Lakin
(Sitting as a judge of the Court of Appeal Criminal Division)
No: 201300109 C3; 201301044 C3; 201304190 C3
Mr C Baur appeared on behalf of Lawrence
Mr S Parish appeared on behalf of the Crown
There are two matters before the court. The first matter relates to both applicants, Malachi Francis and Calvin Lawrence. On 5th December 2012, in the Crown Court at Southampton after a trial, both applicants were convicted of wounding with intent (count 1) and possession of a firearm with intent to cause fear of violence (count 2).
Each man was sentenced to an extended sentence of 18 years, comprising a custodial term of 13 years with five years' licence. Those sentences were passed on 21st January 2013.
Lawrence was subsequently convicted of an offence of arson with intent to endanger life and sentenced in relation to that matter on 18th June 2013. On that occasion the judge imposed an extended sentence of 16 years, comprising a custodial element of 11 years with a five year licence period.
The judge ordered that the custodial element of this second extended sentence ran consecutively to the custodial element imposed on the first indictment, but ordered that the five year extended licence element of the second offence ran concurrently with that imposed on the first indictment.
Thus the judge's intention was to pass a 29 year extended sentence, comprising a custodial element of 24 years and a licence element of five years. As will become apparent, the lawfulness of the judge's approach in sentencing in that way falls into question.
The single judge refused leave in relation to the first matter, both in relation to applications pertaining to conviction and sentence. As far as the second matter is concerned, that is a matter which the Registrar referred to this court.
The first indictment represented a shooting in a criminal context. On the evening of 1st February 2012 the victim was shot in the legs in a road in Southampton. The shooting bore the hallmarks of a premeditated and targeted shooting. The victim declined to co-operate with the investigation and was not used as a witness by the Crown.
After he had been shot, an associate of the victim told the emergency services that the victim's Blackberry had been stolen. The victim was taken to hospital. He was noted to have wounds to both legs, as well as a large lump on his head. He required a fasciotomy to the left leg and surgery on two further occasions.
The witness, a Mr Khan, told the police that he had given the victim a lift to Vanguard Road, Southampton, where the shooting took place. That witness saw a man he knew as "Calvin", which is of course the first name of the applicant Lawrence. The victim told Khan to wait and moved a little distance away with Calvin. Mr Khan then heard a commotion, screaming, followed by two loud bangs. The victim then appeared saying that he had been shot. The reason why Mr Khan and the victim were meeting the man Calvin was over a cannabis deal. Khan was afraid and said he had recently been threatened by Calvin.
The evidence against the two applicants consisted of circumstantial evidence from a variety of sources. Whilst individual pieces of that circumstantial evidence may not in their own right have been strong, there was a significant case to be made against both applicants.
The defence case in the case of Francis was that he had travelled from London to Southampton with his co-accused for a day out. He was unaware that any offence was to be committed and he was not party to it.
In Lawrence's case he acknowledged that he had brokered a drug deal between a buyer and a seller. The transaction was due to take place at Vanguard Road in Southampton and he anticipated being paid a fee. He had merely introduced the parties to the deal, which included the victim who was to be the purchaser of the drugs, and had then left the premises. Subsequently he heard a bang. He returned to the premises but there was nobody there.
The facts of the arson case showed that on 17th September 2012, whilst the applicant Lawrence was on bail for the shooting matter, a fire took place at a semi-detached house. The reason why Lawrence was on bail, notwithstanding the fact that he was facing a significant criminal charge, was that custody time limits had expired in the shooting matter. The Crown was found not to have acted with due diligence and so Lawrence was released on bail.
He took advantage of his freedom to start a fire at the home of a former girlfriend. He was jealous of her because she had begun a relationship with another man. At the time the fire was started, which was shortly before 1 am, there was a man lodging at those premises. He was asleep at the time, but, mercifully, was woken by a smoke alarm. When he went downstairs he saw flames coming out of the letterbox; he could smell petrol and there was a sock hanging out of the letterbox which was alight. The lodger managed to extinguish the flames and called the police. Fire investigators found a petrol can near the property. A report from an expert concluded that there had been a considerable risk to life.
The applicant had been involved in an angry confrontation with his former girlfriend the day before this fire was started. A DNA profile matching that of the applicant was found on the sock which had been placed through the letterbox.
The applicant Francis is 28 years of age and has a criminal record which is of significance. He was convicted in 2004 of possessing an imitation firearm with intent to cause fear of violence. He received a custodial sentence. In April 2007 he was convicted of possessing a prohibited weapon, namely a sub-machine gun, together with ammunition, namely some 36.99 millimetre cartridges capable of use in the machine gun. He was sentenced to seven and a half years' imprisonment. He also had convictions relating to the supply of Class A drugs.
In the case of the applicant Lawrence, he had 15 findings of guilt for previous convictions relating to some 23 offences. He is now 27 years of age. His convictions include matters involving the supply of Class A and Class B drugs, as well as a number of offences involving violence, albeit violence towards the lower end of the scale.
Pre-sentence reports assessed both men as representing a significant risk of causing serious harm to the public in the future.
The submissions made in written form in relation to conviction challenge the admission by the judge into evidence of Francis' two previous convictions relating to firearms matters. It is submitted that the judge was wrong to do so; the evidence was unfairly prejudicial and its admission rendered Francis' conviction unsafe.
Lawrence renewed his grounds against conviction, objecting to the admission of Francis' previous convictions as being prejudicial in his case, but we were informed at the outset of the hearing, confirmed directly by questions to the applicant, that he no longer wished to pursue this aspect of his application.
In relation to sentence, Francis' contention is that the sentence was manifestly excessive and that, moreover, he had been sentenced to a new style extended sentence under the LASPO regime which meant that he would need to serve two thirds of that term before being considered for release. That was unfair in the circumstances because the trial had been adjourned until a date after LASPO came into effect through no fault of his own. In any event, the judge had taken too high a starting point in fixing the custodial term.
In Lawrence's case it was submitted that the judge erred in imposing an extended sentence. Moreover, it is submitted that the custodial element for the shooting offence was too long in all the circumstances.
As far as the arson matter is concerned, the submission is made that the judge failed to have proper regard to the principle of totality so that the aggregate of the sentences imposed was simply too long and failed to be just and proportionate. An issue also arises as to the structure of the overall sentence imposed by the judge.
We deal first of all with the applications relating to conviction. The submission was that the judge was in error in admitting evidence of Francis' two previous convictions relating to firearms matters. Francis' complaint was that the evidence was improperly prejudicial to his case.
We do not see merit in this contention. The judge gave a careful ruling, he identified that the evidence was relevant and probative in relation to an important matter in issue under section 101(1)(d). In order to meet Francis' defence that he was present at or near the scene of the crime by accident rather than design, the judge said that his history of firearms offending was a material consideration. Moreover, that offending showed a propensity to be involved with firearms.
A criticism raised in Francis' written grounds is that the judge did not deal with the question of fairness, having pronounced upon the issue of relevance. This is incorrect. The judge specifically referred to section 101(3) of the 2003 Act and section 78 of the Police and Criminal Evidence Act 1984. He also specifically said that admission of the evidence would not so adversely affect the fairness of the proceedings relating to Francis that he should exclude the...
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