Attorney General's Reference (No. 143 and 144 of 2006); Brown (Deland Anthony) and Carty (Donnel Marcus)
| Jurisdiction | England & Wales |
| Judge | under section 36 of,the Criminal Justice Act 1988,THE LORD CHIEF JUSTICE,the Criminal Justice Act 1988Criminal Justice Act 1988 |
| Judgment Date | 14 May 2007 |
| Neutral Citation | [2007] EWCA Crim 1245 |
| Date | 14 May 2007 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 2006/06453/A6 & 2006/06454/A6, 2007/01602/C3 & 2007/00060/C3 |
[2007] EWCA Crim 1245
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
The Lord Chief Justice of England and Wales
(Lord Phillips of Worth Matravers)
Mr Justice Henriques and
Mr Justice Teare
Attorney General's Reference Nos. 143 and 144 of 2006
Under Section 36 Of
No. 2006/06453/A6 & 2006/06454/A6, 2007/01602/C3 & 2007/00060/C3
MR M ELLISON appeared on behalf of the ATTORNEY GENERAL
MR S DENISON appeared on behalf of THE CROWN
MR D R B WHITEHOUSE QC and MISS S CADDLE appeared on behalf of THE OFFENDER DONNEL MARCUS CARTY
MR C GRIFFITHS QC appeared on behalf of THE OFFENDER DELAND BROWN
Monday 14 May 2007
THE LORD CHIEF JUSTICE
Introduction
On 7 September 2006, at the Central Criminal Court, the offender Carty pleaded guilty to conspiracy to rob (count 1) and robbery (count 4), and the offender Brown pleaded guilty to robbery (counts 4 and 6). On 30 October 2006, before Aikens J, Brown changed his plea to guilty to conspiracy to rob (count 1). On 27 November 2006, before Aikens J and a jury, both offenders were convicted of unlawful wounding (an alternative verdict on count 2), wounding with intent (count 3) and murder (count 5). Carty was also convicted of robbery (count 6). On the following day Carty was sentenced as follows: on count 1, detention for public protection with a minimum term of three years, concurrent to count 5; on count 2, an extended sentence of six years' detention (of which three years was the custodial term and three years the extension period), concurrent to count 5; on count 3, detention for public protection with a minimum term of four years, concurrent to count 5; on count 4, detention for public protection with a minimum term of three years, concurrent to count 5; on count 5, custody for life with a minimum term of 21 years; and on count 6, detention for public protection with a minimum term of four years, concurrent to count 5. Brown was sentenced as follows: on count 1, detention for public protection with a minimum term of three years, concurrent to count 5; on count 2, an extended sentence of six years' detention (of which three years was the custodial term and a three year extension period), concurrent to count 5; on count 3, detention for public protection with a minimum term of four years, concurrent to count 5; on count 4, detention for public protection with a minimum term of three years, concurrent to count 5; on count 5, detention at Her Majesty's Pleasure with a minimum term of 17 years; and on count 6, detention for pubic protection with a minimum term of three years, concurrent to count 5. The period of 312 days spent on remand in the case of each offender was to be taken into account in reducing the overall length of these sentences.
The Applications for leave to appeal against sentence
Each offender applied for leave to appeal against sentence. Those applications were referred to this court by the Registrar. We granted leave to appeal at the beginning of the hearing because the sentences imposed in respect of count 2 were longer than the law allowed. The maximum sentence for unlawful wounding, contrary to section 20 of the Offences against the Person Act 1861, is five years. We accordingly quash the sentences imposed in respect of count 2 and substitute extended sentences of four years' detention, in respect of which two years will be the custodial term and two years the extension period in respect of each offender. This change has no impact on the time each will spend in prison. The principal issue raised by their appeals is whether the minimum term that each was ordered to serve should be reduced on the ground that it was manifestly excessive.
The Applications by the Attorney General
for leave to refer the sentences
Far from accepting that these minimum terms were manifestly excessive, the Attorney General applied for leave to refer them to this court under section 36 ofthe Criminal Justice Act 1988Criminal Justice Act 1988 on the ground that they were unduly lenient. We granted leave at the outset of the hearing.
The Facts
Carty was born on 25 May 1987 and so was 18 years and 7 months old at the time of the more serious offence of murder. Brown was born on 29 March 1988, so that he was 17 years and 9 months old at the time of the murder.
Counts 1–3
Between about 7.40pm and 11.15pm on Friday 23 December 2005 a series of violent robberies were committed on underground trains in the North London area in which wallets, mobile telephones and other valuables were stolen from nine victims. The violence used or threatened against the victims included: a punch to the face and a jump kick to the victim Moshin Hussain; ten to fifteen punches while held in a headlock and being threatened with an open knife held to the face that he would be “cut” if he did not hand over the items demanded and a knife held to the face of the victim Zakir Hussain; when Ahmet Karkin (count 2) tried to prevent members of the group from taking property out of his pockets he was stabbed to the thigh causing a wound 5cm deep; and Zilvinas Jazdaukas (count 3) was struck on the head with a Coca Cola bottle without warning when seated doing a puzzle, and then stabbed in the thigh when he tried to stop the group from taking his wallet. CCTV film from the trains identified that a group of about eight young men were involved in the commission of the offences, and two of the films enabled the offenders to be identified as members of the group. The offenders were parties to an agreement to rob, knowing from the outset that a knife was being carried for use in furtherance of robbery, to inflict injury on any victim who sought to resist the offence in order to cause them to cease their resistance, and to stab them to the thigh or buttocks for as long as they sought to resist. In committing the offence the subject of count 2 the offenders shared an intention to wound with intent to cause serious injury.
Counts 4–6
At about 11.05pm on Thursday 12 January 2006, Kushid Ali (aged 45 years) was on his way home from work. He was sitting on the platform at Kensal Green underground station waiting for a train. There was only one other person on the platform. A train arrived, but it was not the one that Mr Ali needed and so he remained seated. The offenders got off the train but stayed on the platform as the other passengers made their way out. They approached Mr Ali, asked the time and then stood on either side of him. They took hold of his arms and told him not to move. They searched his pockets and demanded his wallet. He said that he did not have one. They took his mobile telephone, keys, Oyster card and £60 in cash (count 4). As they were doing so another train arrived and they ran towards the exit with Mr Ali's property. Both offenders were aware before this robbery that a knife was being carried for use on any victim who sought to resist the offence, to intimidate and if necessary to injury. Robbery was intended by both of them.
Tom Ap Rhys Pryce was aged 31 years. He lived with his fiancee Adele Eastman in Bathurst Gardens, Kensal Green, and worked in the City. He spent the evening of 12 January 2006 at an informal work function in the City and left to go home at about 10.45pm. CCTV footage showed him leaving Kensal Green underground station at 11.22pm. As he was walking along Bathurst Gardens the offenders approached him and then ran after him and caught up with him with the intention of robbing him. There was a struggle as he sought to resist the offence. He was heard to say, “That's everything, you've got everything”. Both the offenders took an active part in the offence. Tom Ap Rhys Pryce was stabbed in the thigh, in the face and twice in the chest (penetrating his raincoat, jacket and clothing, and 3.5 inches into his chest) before the offenders ran off with his Oyster card and wallet, bank cards, driving licence and mobile telephone. Mr Ap Rhys Pryce collapsed in the road next to the kerb. A neighbour who saw the attack called the emergency services but, despite every effort by them to save him, he was declared dead shortly after arrival at hospital, one stab having cut veins around his heart and the other having penetrated his heart.
Both offenders subsequently used Mr Ap Rhys Pryce's telephone, and his Oyster card was used by Carty to attempt to enter Kensal Green station the next morning, but it did not work.
The offenders were both arrested on 18 January 2006. Searches of family addresses produced a rucksack containing items of clothing on which blood was found containing DNA that matched the deceased's. A top on which fires were found matched fibres from the deceased's coat and there were other DNA links.
During police interviews Carty set out a false alibi for the night of 12 January 2006. He said that he had found an Oyster card and had tried to use it at Kensal Green station. He denied any involvement in the attack on Mr Ap Rhys Pryce. He was arrested on 16 March 2006 on suspicion of involvement in the December robberies. When interviewed he made no comment.
Brown made no comment and then produced a prepared statement claiming that he had purchased the mobile telephone late on 12 January 2006 near Kensal Green station and had had no involvement in either the robberies or the murder. On 20 January 2006, at Feltham Young Offender Institution, he told a prison officer during an induction interview that he had been there and robbed the man, but that his cousin had killed him and that “it shouldn't have happened”....
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