R v Ford (Kevin)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE GIBBS |
| Judgment Date | 12 May 2005 |
| Neutral Citation | [2005] EWCA Crim 1358 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 200406291/A5 |
| Date | 12 May 2005 |
[2005] EWCA Crim 1358
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
The Vice President
(Lord Justice Rose)
Mr Justice Gibbs
Mr Justice Stanley Burnton
No: 200406291/A5
MR B TETLOW appeared on behalf of the APPELLANT
MR A JAFFERJEE appeared on behalf of the ATTORNEY GENERAL
This is an application for leave to appeal against sentence referred to the Full Court by the Registrar. We give leave to appeal.
The appellant, Kevin Anthony Ford, is 25 years old. On 12th October 2004, in the Crown Court at Sheffield, in a trial presided over by His Honour Judge Goldsack QC, the appellant was convicted, after trial, of two counts of attempted murder. On 13th October 2004 he was sentenced to 30 years' imprisonment on each count concurrent.
The date of the offence was 26th June 2004, a date which, for various reasons, is of significance to this appeal. At about 3.10 in the morning of that date a silver Ford Escort parked outside a club known as the Donkeymans Afro-Caribbean club in the centre of Sheffield. The appellant and his girlfriend, Yvonne Blake, got out of the car. She went into the club but the appellant returned to the car and then drove off. About 20 minutes later two men, Alton Chambers and Christopher Gordon, were sitting in a Rover car which was parked near the club. As the jury found, the appellant drove past them, turned round and pulled alongside them. He leaned across the passenger seat of his car, aimed a handgun at the two men, saying: "I don't like you, you're an informer" and discharged the weapon. The bullet hit Chambers and the other man then struggled to get himself and Chambers out of the car. The appellant then aimed the gun at the other man, Gordon, but at the moment of firing Gordon threw a beer bottle at the appellant. The second shot missed both men. The appellant then fired a third time, again failing to hit either man. The appellant then drove off.
Gordon drove his colleague to the nearest hospital. He had been hit in the chest and his liver and stomach were damaged. He had to have a portion of liver removed. The surgeon who operated said that he was extremely lucky to be alive.
The appellant was identified by the two victims or potential victims and was arrested on 29th June in London. He denied any involvement in the shooting. No express motive was ascertained for the shooting but the judge noted that the area was notorious for drug dealing, the inference being that it was a deliberate attempt to kill connected with some dispute arising from drugs.
The appellant, who was born on 20th January 1979, had previous convictions in 2003 and 2004. These included having a bladed article, which was a knife, in public, and in February 2004, he was sentenced to 12 months' imprisonment for indecent assault on a female under 14. Subject to that there were no convictions connected with violence.
In sentencing the appellant the judge noted that he had discharged a firearm three times at two men in cold blood. The only reason that the injured man had survived was because he was rushed to a nearby hospital. There was no doubt that an intention existed to kill both men. The judge said that it was vital that sentences passed for offences involving guns were long enough to act as a deterrent. If the appellant had managed to kill both victims, given the sweeping changes in sentencing for murder brought about by the Criminal Justice Act 2003, he would have to serve a minimum of about 30 years. The judge noted that no provision was made for a corresponding increase for attempted murder. The question therefore was: how long should the determinate sentence be in the case, in the light of the changes of the 2003 Act?
The judge took the view that before the new provisions came in, the sentence would have been in the order of 22 years. He went on to note that the appellant would have served between half and two-thirds of that sentence and that would have reflected as a proportionate distinction between the time which would have been served for the full offences and the time to be served for the attempts.
The sentence that the judge proposed to pass was intended to maintain that proportion on the basis of the new legislation. It was noted that the sentencing exercise was further complicated by the fact that the appellant's sentence would be affected by section 244 of the 2003 Act, which stated that offenders serving a fixed term would be entitled to be released on licence after serving half the sentence. The judge went on to say that since, in his view, that provision applied, the effect of a sentence of 22 years would be that the appellant would serve only a third of the appropriate custodial term for murder; and that would be unduly lenient. Therefore, to ensure that he served half the period he would have had to serve, if the attempt had been successful, he was sentenced to 30 years' imprisonment.
A number of grounds of appeal were advanced in the first instance. But these have now been refined in effect to two grounds. It is conceded by Mr Tetlow that, given the statutory framework for minimum tariffs set out in section 269 of schedule 21 of the Criminal Justice Act 2003, the judge's conclusion that, had the appellant killed his victims he would have been serving a minimum period of about 30 years, is unarguable. He conceded that it is difficult here to see any mitigation which could, in the event of complete offences, have reduced this appellant's sentence below the 30 year starting point.
However, Mr Tetlow submits, and it is conceded on behalf of the respondent, and the Attorney-General, that the judge was in error in proceeding on the basis that section 244 applied. It was pointed out that that section is applicable only to sentences for offences committed after 4th April 2005. The regime applying to releases on licence for offences committed prior to that date are well-known. There is an automatic release on licence after a prisoner has served two-thirds of a sentence, but he is eligible for discretionary release after serving half the sentence. Mr Tetlow submits that the judge was led into error by the labyrinthine complexities of the 2003 Act.
The second ground of appeal which is contentious, having regard to the submissions of the Attorney-General, is that it was wrong for the sentencing judge to intervene to cure what might appear to be an apparent disparity between the sentence for attempted murder and the sentence for murder. Mr Tetlow points out that there is a new statutory framework contained within sections 224 to 229 of the 2003 Act, which has not yet come into effect, relating to "dangerous offenders." He points out that it is very likely that offences such as those being considered in this appeal would fall within that framework. This would lead the Court to impose, in relation to such offences, a mandatory life sentence or "a sentence of imprisonment for public protection", for an indeterminate period. He submits that an increase in the tariff for attempted murder,...
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