R v Kurtis Yemoh
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HOOPER |
| Judgment Date | 20 August 2009 |
| Neutral Citation | [2009] EWCA Crim 930,[2009] EWCA Crim 1775 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 2008/02417 B5 + 2009/00232 B5 + 2008/03055 B5 + 2008/02426 B5 + 2008/02420 B5 + 2008/02419 B5 + 2008/02422 B5 |
| Date | 20 August 2009 |
[2009] EWCA Crim 1775
Lord Justice Hooper
Lord Justice Etherton and
Mr Justice Cranston
Case No: 2008/02417 B5 + 2009/00232 B5 + 2008/03055 B5 + 2008/02426 B5 + 2008/02420 B5 + 2008/02419 B5 + 2008/02422 B5
T200700052/T20070061/T2070106
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT SITTING AT THE CENTRAL CRIMINAL COURT
HIS HONOUR JUDGE MOSS QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr J K Benson QC for Kurtis Yemoh
Mr M Turner QC for BR
Mr Z Khan for JB
Mr C Sallon QC for MW
Mr D Spens QC for TD
Sir Allan Green QC and Mr J W Hallam for The Crown
Hearing date: 26 June 2009
The full facts of this case are set out in our judgment [2009] EWCA Crim 930 dismissing all the conviction appeals and all the applications for leave to appeal except one. That one concerns TD and is an application for leave to appeal based on fresh evidence. We adjourned this application and listed it for a separate hearing. At the conclusion of oral argument, we announced that the application for leave to appeal was dismissed and we now give our reasons. Having done so we turn to the appeals against sentence, leave having been given either by the single judge or by the full court.
Leave to appeal conviction—TD
The applicant seeks to rely on what is said to be a record of mobile phone calls made in July and September 2008 in which BR confessed to the stabbing. We told Mr Spens QC for TD that we would assume for the purposes of the application that BR had confessed to being the stabber and that the stabbing had taken place outside 174 Hammersmith Grove. It was TD's case supported by his evidence that he went some way up Hammersmith Road beyond Chez Kristof and then turned back and away (see paras. 73 and 74 of the main judgment). Mr Spens tells us that he reached about as far as 150 Hammersmith Grove. Mr Spens submits that the fresh evidence would:
“require the court to consider whether or not the jury could have been sure that [TD] had not withdrawn from any joint enterprise and was thus a party to the killing by [BR]”.
In our view, although the judge did direct the jury about withdrawal (see pages 14–15 of volume 1 of the summing-up), we have no doubt that, on the facts of this case, the jury would have been sure that TD had not withdrawn simply by turning away when he reached 150 Hammersmith Grove. As we said in the main judgment, in order to have convicted TD of murder the jury must, in our view, have reached the conclusion that a knife other than a Stanley knife caused the deceased's death and that TD knew that the knifeman had a knife and he shared the knifeman's intention to kill or do really serious bodily harm, or realised that the knifeman might use the weapon with that intention and nevertheless took part. Merely turning back just before the fatal end of a long chase cannot in law constitute withdrawal on the facts of this case.
Sentence appeals
As we said in our main judgment, the appellants BR and TD were each unanimously convicted of the murder on 14 March 2007 of 16 year old Kodjo Yenga (count 4). The appellants Kurtis Yemoh, JB and MW were each acquitted of his murder but were unanimously convicted of the lesser charge of his manslaughter.
Yemoh, JB and MW were convicted of violent disorder relating to the same incident, a count to which BR and TD had earlier pleaded guilty. Additionally Yemoh (on his own admission), TD and JB were convicted of violent disorder on 17 February 2007 and Yemoh was convicted of inflicting grievous bodily harm on the same occasion. The incident of 17 February is described by the learned judge in passing sentence (see below). The victim was caused serious injury.
No separate penalty was imposed for the count of violent disorder.
Yemoh, aged 16 at the time of committing the manslaughter, received an extended sentence of 15 years under section 228 of the Criminal Justice Act 2003 comprising a custodial term of 10 years (less 418 days spent on remand) and an extended period of licence of 5 years. He had one police warning for burglary and three previous court appearances for aggravated vehicle taking, attempted robbery and robbery, for the latter of which he had received a 6 months detention and training order.
BR, aged 13 at the time of committing the murder, was sentenced to be detained during Her Majesty's Pleasure and to serve a minimum term of 15 years (less 418 days spent on remand). He had a previous court appearance for robbery and possession of a bladed article. He had also committed an attempted robbery, although not dealt with until after the murder conviction.
JB, aged 14 at the time of committing the manslaughter, received an extended sentence of 15 years under section 228 comprising a custodial term of 10 years (less 359 days spent on remand) and an extended period of licence of 5 years. He had nine previous court appearances for offences including assault on police (two occasions), attempted robbery and affray for which he had been sentenced to a 6 months detention and training order. Later the warrant was amended to show the remand time as 325 days.
MW, aged 13 at the time of committing the manslaughter, received an extended sentence of 15 years under section 228 comprising a custodial term of 10 years (less 418 days spent on remand) and an extended period of licence of 5 years. MW had no previous reprimands or court appearances.
TD, aged just under 16 at the time of committing the murder, was sentenced to be detained during Her Majesty's Pleasure and to serve a minimum term of 15 years (less 418 days spent on remand). He had no previous reprimands or court appearances.
No separate penalty was imposed on the other counts and on the February 17 indictment.
In passing sentence the judge said, amongst other things:
Kodjo Yenga was lured to a quiet residential street in Hammersmith on the pretext that he was to be challenged to a one-to-one fight. You, TD, and you, BR, were the prime instigators in that challenge. You, MW, you, Kurtis Yemoh, and you, JB, were part of the gang of youths who confronted Kodjo once he was there.
What then happened was anything but one-on-one. Following an initial exchange of blows, you all pursued Kodjo as a pack. I am quite satisfied that you, JB, deliberately set loose your Staffordshire bull terrier dog with the intention that it would join in the attack, although in the event it caused Kodjo inconvenience rather than injury.
Kodjo was chased into Hammersmith Grove by all of you. You, TD, on the evidence were armed with a Stanley knife. You had threatened Kodjo with it. Whether that was the knife that eventually killed him is doubtful. It is far more likely that a more substantial weapon was used to stab him through his clothing and into his heart. It cannot be said with any degree of certainty on the evidence which of you was armed with the murder weapon, and nor in my judgment does it matter. You, BR, and you, TD, may have been the assailant; I cannot say. But you are both convicted of murder on the basis that you knew perfectly well that one of your number was armed with a knife or other sharp implement which might be used to attack Kodjo with murderous intent. You, MW, you, Kurtis Yemoh, and you, JB, also knew perfectly well that such a weapon was present which might be used to attack Kodjo and cause him at least some harm.
It was in those circumstances and with that knowledge that you all took part in the pursuit which ended in the needless loss of yet another young life as a result of the use of knives on the streets of our cities by youngsters such as you. Whether all or some of you were members of a formal gang —it is said that you were all members or followers of the MDP gang —again is unimportant. What is undoubtedly the case is that you are all part of the gang culture which casts its dreadful influence over so much of the youth of our inner cities and which leads almost inevitably to the sort of tragedy that has been seen so vividly here.
These events took place in broad daylight in a residential street, to the horror of people going about their business. The fact that you, almost without exception, come from decent and caring backgrounds makes the situation all the more worrying.
A month previously on a Saturday in February 2007 you, TD, you, Kurtis Yemoh, and you, JB, had been part of a gang of youths who attacked Seun Adeboyejo and terrified ordinary members of the public in Shepherds Bush market.
In passing sentence on BR and TD the judge said:
I have to set the minimum term which you must each serve before you may be considered for release on licence. The starting point in each of your cases is agreed to be 12 years. The only mitigation in your cases is your youth and the fact that I cannot be sure that you intended to kill. Otherwise, your crime is greatly aggravated by the factors which I have already identified, not least the use of knives. You, TD, are of previous good character; you, BR, are not, and you are mature beyond your years. Despite the disparity in your ages I intend to treat you equally. The minimum term in each of your cases is 15 years (Underlining added).
In passing sentence on the others, the judge said:
MW, Kurtis Yemoh and JB, will you stand, please. I am satisfied in all of your cases, taking into account your antecedents, all that I have read about you and the serious nature and circumstances of your conviction for manslaughter, that there is a significant risk to members of the public of serious...
To continue reading
Request your trial
-
R v Carpenter
...the requisite state of mind for murder might nonetheless be guilty of manslaughter. 18 To similar effect as Roberts is the judgment in R v Yemoh and Others [2009] EWCA Crim 930, albeit Roberts does not appear to have been cited to the court in Yemoh. The case concerned a knife killing in wh......
-
Edmonds v R
...to a person who is guilty of the assault as a secondary party under s 66(1)(b), (c) or (d).” 23 R v Creamer [1966] 1 QB 72 (CA). 24 R v Yemoh [2009] EWCA Crim 930, [2009] Crim LR 888 at [122] and 25 The authorities on this point are reviewed in R v Rapira [2003] 3 NZLR 794 (CA) at [28]–[3......
-
The People (Director of Public Prosecutions) v Dekker
...E.R. 744; [1999] 1 Cr. App. R. 319; [1999] Crim. L.R. 987. R. v. Willett [2010] EWCA Crim. 1620, [2011] Crim. L.R. 65. R. v. Yemoh [2009] EWCA Crim. 930, [2009] Crim. L.R. 888. Appeal pursuant to s. 23 of the Criminal Procedure Act 2010 The facts have been summarised in the headnote and are......
- R v Jogee
-
Overwhelming Supervening Acts, Fundamental Differences, and Back Again?
...contemplated by the others, they are notto be regarded as parties to the death whether it amounts to murder or manslaughter.’7. Yemoh [2009] EWCA Crim 930 at [134]-[136]; Mendez and Thompson [2010] EWCA Crim 516, [2011] QB 876 at [44].8. Mendez and Thompson [2010] EWCA Crim 516, [2011] QB 8......
-
Overwhelming Supervening Acts, Fundamental Differences, and Back Again?
...contemplated by the others, they are notto be regarded as parties to the death whether it amounts to murder or manslaughter.’7. Yemoh [2009] EWCA Crim 930 at [134]-[136]; Mendez and Thompson [2010] EWCA Crim 516, [2011] QB 876 at [44].8. Mendez and Thompson [2010] EWCA Crim 516, [2011] QB 8......
-
Joint Enterprise and Murder
...R v Betty (1964) 48 Cr App R 6; R v Reid (1976) 62 Cr App R 109;R v Stewart and Schofield [1995] 1 Cr App R 441; R v Yemoh [2009] EWCA Crim 930.In contrast, there are other decisions which hold that Steve has no liability formanslaughter because Peter’s murderous intent was not foreseen by......
-
Cases: Parts 1, 2, 3, 4, 5 and 6
...500R v Sheppard and Whittle [2010] EWCACrim 65 205R v Stewart (James) [2009] EWCA Crim593 16R v W [2010] EWCA Crim 372 290R v Yemoh [2009] EWCA Crim 930 200Secretary of State for the HomeDepartment v AP [2010] UKSC24...