R v Dontae Smickele and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HUGHES |
| Judgment Date | 20 June 2012 |
| Neutral Citation | [2012] EWCA Crim 1470 |
| Docket Number | No. 2012/00257/A7, 2012/00393/A7, 2012/00385, 2012/00380/A7 2012/00370/A7, 2012/00348/A7, 2012/00342/A7 |
| Court | Court of Appeal (Criminal Division) |
| Date | 20 June 2012 |
[2012] EWCA Crim 1470
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Lord Justice Hughes
(Vice-President of the Court of Appeal Criminal Division)
Mrs Justice Dobbs DBE
and
Mr Justice Globe
No. 2012/00257/A7, 2012/00393/A7, 2012/00385, 2012/00380/A7 2012/00370/A7, 2012/00348/A7, 2012/00342/A7
Mr B Gordon appeared on behalf of the Appellants Massiah Tillock and Kyle Tillock
Miss S Nabijou appeared on behalf of all the other Appellants
Wednesday 20 June 2012
On 16 December 2011 in the Crown Court at Croydon His Honour Judge McKinnon had to sentence seven young men for two unpleasant offences, one of false imprisonment and one of blackmail. They were each sentenced concurrently on each count as follows: Dontae Smickele (now aged 16) to seven years' detention; Mickell Lucien (now aged 18) to seven years' detention; Massiah Tillock (now aged 18) to eight years' detention; Kyle Tillock (now aged 18) to eight years' detention; Nathan Christian Denny (now aged 20) to eight years' detention; Neiko James (now aged 18) to eight years' detention; and Renelle Lewis (now aged 17) to seven years' detention. Smickele, Lucien, Kyle Tillock, James and Lewis appeal against sentence by leave of the single judge. Applications for leave to appeal against sentence by Massiah Tillock and Denny have been referred to the full court by the single judge.
The question for us is whether the sentences were either manifestly excessive or were wrong in principle. As counsel have helpfully recognised, that calls for us to address the following considerations: first, the hypothetical starting point for adult offenders committing the same offence, and after trial; secondly, the appropriate adjustment for the age of the defendants, which at the time of sentence ranged from just 15 to nearly 19; thirdly, the appropriate adjustment for pleas of guilty, which in this case were tendered very late; fourthly, the appropriateness or otherwise of sentences which were expressly intended to contain a deterrent element; and fifthly, the weight to be given to either the presence or absence of previous convictions or history of misbehaviour.
We repeat what we said at the outset of the hearing: Nothing must be published which is capable of identifying the unfortunate victim of these offences. We make no order under section 39 of the Children and Young Persons Act 1933 in relation to any of the defendants who remain under the age of 18. They accordingly may be identified, as they were in the court below.
The seven defendants conceived a plan to extract £20,000 from a single mother who had two daughters and a 14 year old son. The 14 year old son was taken from the street on the evening of Saturday 19 March 2011. The defendants pleaded not guilty to conspiracy to kidnap (count 1), but they pleaded guilty to false imprisonment (count 2) and blackmail (count 3).
Within a few hours of his seizure the victim was held by the defendants at the home of Lewis, who had a local authority allocated flat where he was accommodated under section 20 of the Children Act. In all, the victim was held for approximately 36 hours. He was not released by the defendants after that time; he was released by the intervention of the police in the mid-afternoon of Monday 21 March. During the 36 hours numerous telephone calls were made to his distraught mother demanding the payment of £20,000. The calls contained a number of threats, including the threat that if the money was not paid the severed fingers of her son would be sent to her. The terms of the demands were, and were no doubt intended to be, both aggressive and frightening.
Fortunately, his mother had the fortitude to go to the police. A careful, and in due course successful, exercise in detection and surveillance followed which succeeded in locating the boy and releasing him at the end of 36 hours.
In the meantime, however, he had been badly ill-treated. Most of the ill-treatment was gratuitous. He was confined for much of the time in a cramped cupboard measuring about 3ft by 4ft 6in. It contained a hot pipe up against which he was forcibly pressed. For much of the time he had a bag over his head. He was taken out of the cupboard on four or five occasions and beaten. He was tied to a chair. Water was thrown over him. He was threatened with weapons, one of which was a BB gun which was found by the police. There were also two knives, and wire with which to tie him up. With the knives (or some sharply-pointed implement) the defendants set about writing on the boy's back the initials of gangs to which one or more of them belonged. There were sixteen cuts to his back and to his legs, one of them about 29cm in length down the back of one of his legs. Although the cuts are described as superficial lacerations, they were deliberate acts of torture. They drew blood—enough blood so that when he was put back into the cupboard the poor boy heard the sounds of scrubbing in an effort to remove traces from the floor. At a different stage of his ordeal he was taken out of the cupboard, wrapped in a duvet, spun round repeatedly to disorient him before being put outside in a bin shed where he was left lying on the ground. Throughout the period of 36 hours he was denied the opportunity to use a lavatory, although he was given a bottle into which to urinate. He was made to speak to his mother to reinforce the demands which were being made of her.
All of this took place, as the police eventually discovered, in a very small flat in which the seven defendants were present.
The impact on the boy, on his mother and indeed on the family generally, was enormous. No doubt the physical scars on his back and leg will heal; there is more uncertainty about when or whether the psychological scars will heal. The result has been that the whole family has decided to leave the country and live elsewhere.
The defendants, who were all caught in the flat, gave a number of wholly or partially false accounts of themselves. Some said that what had happened was nothing to do with them; some of them blamed others; and one or two of them blamed the hostage. They all entered pleas of not guilty and maintained them until after the trial had begun. The jury had been sworn, although the case had not been opened. There had been delay in the service of some of the evidence on which the Crown wanted to rely, in particular telephone evidence and the schedules that go with such material. A large volume of that was served only a week before the trial was due to commence.
We begin by considering the hypothetical starting point for sentence had an offence of this kind been committed by an adult gang. In his sentencing remarks the experienced judge told the defendants that had they been fully mature adults the offences would have attracted a sentence of fifteen to eighteen years. He did so to emphasise the seriousness of what they had done. Beyond that he did not identify a hypothetical starting point.
We have been invited to consider that question and to look at a number of reported cases. False imprisonment and blackmail are offences for which no formal sentencing guidelines have been issued by either the Sentencing Guidelines Council or the Sentencing Council. Counsel have referred the court to the old guideline case of R v Spence and Thomas (1983) 5 Cr App R(S) 413. They have also made passing reference to a number of cases of violent robbery in the home, which include R v Roe [2010] 2 Cr App R(S) 89, [2010] EWCA Crim 357, where a number of earlier cases are considered. Cases of violent robbery in the home no doubt provide some degree of broad analogy to the present kind of case, although it is not exact. To the extent that they do, they suggest a starting point anywhere between about five and fifteen years, depending on the facts. As applied to a case of this gravity, those cases would bring the hypothetical starting point to something of the order of twelve years and perhaps more. Moreover, those cases are without the element of prolonged imprisonment and hostage holding for ransom. Face-to-face robbery is not an exact analogy to the evil of blackmail.
There are two recent cases of kidnap and hostage holding. Neither is an exact replica of the present facts. R v Stephens [2011] 1 Cr App R(S) 5 (page 27), [2010] EWCA Crim 911, is a case of a highly professional criminal team which kidnapped a man for more than 60 hours in pursuit of demands for no less than £1.5 million. The victim was seriously threatened and struck. A gun was used, and a machete and knives were brandished. He was tied up and seriously threatened, although not in the end significantly injured. The gang moved him around to three different places of imprisonment. There was an international dimension to the case. This court held that a starting point of 18 years was severe, perhaps at the top of the range, but not outside it.
R v Syed Ahmed & Others [2011] 2 Cr App R(S) 35 (at page 217), [2010] EWCA Crim 3133, involved the detention of a 16 year old boy for a much shorter period of five hours in pursuit of demands for £20,000. The imprisonment was accompanied by torture, as here, although in a different form: scalding water and a hot iron. The defendants were 29 and 25 years of age. This court expressed the view that a starting point of 18 or 19 years would have been too long, but a starting point of 15 years was not.
Both those cases demonstrate the clearly realistic...
To continue reading
Request your trial
-
Reference by Attorney General Under S.36 of the Criminal Justice Act 1988 and Others
...of monetary demands are better reflected by more recent decisions. Those decisions include R v Syed Ahmed [2011] 2 Cr App R(S) 35, R v Smickele & Ors [2013] 2 Cr App R(S) 64, Attorney-General's Reference No 57 of 2013 [2013] EWCA Crim 2144 and Attorney-General's References Nos 39 to 42 of 2......
-
R v Paul Gordon Attwell
...much higher than the original case of Spence and Thomas and has referred the court, amongst other cases, to the more recent cases of R v Smickele & Ors [2013] 1 Cr App R(S) 64 and R v Miah [2014] EWCA Crim 938. In Smickele at paragraph 17, where Hughes LJ (Vice-President of the Court of App......
-
R v Courtney Bishop and Others
...92 and 93 of 2014 [2015] 1 Cr.App.R (S) 44 ; Shajah Hussain and others [2013] 1 Cr.App.R (S) 112 ; Dontae Smickele and others [2013] 1 Cr.App.R (S) 64 ; Carl Stephens [2011] 1 Cr.App.R (S) 5 ; Syed Ahmed and others [2011] 2 Cr.App.R (S) 35 ; Yu Hang and others [2012] 1 Cr.App.R (S) ......
-
R v Tobias Nathan Uter
...[2013] 1 Cr App R(S) 112. In that later case this court referred to a number of cases including R v Stephens [2011] 1 Cr App R(S) and R v Smickele [2013] 1 Cr App R(S) 64. 10 In his sentencing remarks in the present case the judge said: "…the clutch of recent kidnap for ransom cases establi......
-
Sentencing Children: Overarching Principles Revisited
...between individual and general deterrence in this context but in sup-port of its case the 2016 draft cited R v DS and others [2012] EWCA Crim 1470; [2013] 1 Cr. App. R. (S.) 64, involving boys and young adults convicted of false imprisonment and blackmail, having detained another boy aged 1......