R v M (A), Kika (Juress) and Saddique (Abdul)
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 13 November 2009 |
| Neutral Citation | [2009] EWCA Crim 2544 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 2009/05135/A8, 2009/03610/A7 & 2009/04367/A7 2009/03610/A7 2009/04367/A7 |
[2009] EWCA Crim 2544
IN THE COURT OF APPEAL CRIMINAL DIVISION
The Lord Chief Justice of England and Wales (Lord Judge)
Mr Justice Penry-davey and
Mr Justice Henriques
No. 2009/05135/A8, 2009/03610/A7 & 2009/04367/A7
2009/05135/A8
2009/03610/A7
2009/04367/A7
Mr J Hasslacher appeared on behalf of the Applicant AM
Mr P Wright QC and Mr D Penny appeared on behalf of the Crown
Mr J Dein QC and Mr J Nichol appeared on behalf of the Applicant Juress Kika
Mr P Wright QC and Mr D Penny appeared on behalf of the Crown
Mr N P Rhodes appeared on behalf of the Applicant Abdul Saddique
Mr P Wright QC and Mr D Penny appeared on behalf of the Crown
APPEARANCES
Friday 13 November 2009
THE LORD CHIEF JUSTICE:
Introduction
There are a number of features common to these applications. Each applicant was convicted of, and sentenced for, murder. In each murder the weapon which inflicted fatal injury to the victim was a knife or knives. Each applicant was duly sentenced to life imprisonment or custody for life. In accordance with statute the sentencing judge assessed the minimum term to be served by the defendant before any question of his possible release could be considered by the Parole Board. Each now seeks to argue that the minimum term in his individual case was excessive.
Before addressing any of the individual cases we shall identify some broad considerations. Although the message is not new, it bears repetition. Eighteen months ago in R v Povey [2008] 1 Cr App R(S) 42 in relation to the prevalence of knife crime these observations were made:
“3. …. Every weapon carried about the streets, even if concealed from sight, even if not likely to be or intended to be used, and even if not used represents a threat to public safety and public order. That is because even if concealed, even if carried only for bravado, or from some misguided sense that its use in possible self-defence might arise, it takes but a moment of irritation, drunkenness, anger, perceived insult or something utterly trivial, like a look, for the weapon to be produced. Then we have mayhem and offences of the greatest possible seriousness follow, including murder, manslaughter, grievous bodily harm, wounding and assault. ….
4. …. Every knife or weapon carried in the street represents a public danger and therefore in the public interest this crime must be confronted and stopped. …. For the time being, whatever other considerations may arise in the individual case, sentencing courts must have in the forefront of their thinking that the sentences for this type of offence should focus on the reduction of crime, including its reduction by deterrence, and the protection of the public. ….”
The question in these cases is how the application of these principles to cases where the ultimate offence is not the carrying of the offensive weapon, or even wounding, or even grievous bodily harm, should be reflected in the tragic ultimate disaster: murder.
Schedule 269(3), Schedule 269(5)(a) and Schedule 21 to the Criminal Justice Act 2003 provide the structural sentencing framework. What is critical and is sometimes overlooked in argument (though in fairness to counsel who appear before us not today) is that the statutory arrangements do not diminish the principle that the sentence must reflect the seriousness of the crime. Consideration of the seriousness of the crime requires the court to have regard to “general principles” in Schedule 21. We endeavoured to highlight these considerations in a recent five judge constitution of this court in R v Height and Anderson [2009] 1 Cr App R(S) 656. At page 666 the court made these observations:
“28. …. The criteria which purport to identify those cases where the seriousness is 'exceptionally high' or 'particularly high' apply 'normally', but not invariably. They are not exhaustive of the cases which may fall into the 'exceptionally high' or 'particularly high' category, and they do not exclude the possibility that in some cases, probably rare, the seriousness may be such as to justify the 'exceptionally high' or 'particularly high' starting point, even when the express criteria 'normally' required for this purpose are absent. The same may indeed apply in reverse. In the light of and having regard to the relevant criteria, as required by the legislation, the judge must decide whether the seriousness of the crime (and any associated offences) should be treated as exceptionally high or particularly high, or neither. That will provide him with the appropriate starting point. Thereafter the judge must —and it is a matter of obligation —identify the starting point he has chosen, his reasons for doing so, and, where appropriate, his reasons for departing from what would otherwise appear to be the normal starting point.
29. We have lost count of the number of times when this court has emphasised that these provisions are not intended to be applied inflexibly. Indeed, in our judgment, an inflexible approach would be inconsistent with the terms of the statutory framework. No scheme or guidance or statutory framework can be fully comprehensive, and any system of purported compartmentalisation or prescription has the potential to produce injustice. Even when the approach to the sentencing decision is laid down in an apparently detailed, and on the face of it, intentionally comprehensive scheme, the sentencing judge must achieve a just result.”
At the date when the sentences which we are considering today were imposed, Schedule 21 was silent or unspecific about cases of murder resulting from the misuse of a knife or knives. Indeed in Schedule 21 as it now stands the only weapons expressly identified are firearms and explosives. Such cases are normally to be treated as cases of particularly high seriousness. The present applications must be approached on the basis of the starting points as they are, and not as they might become, but in the overall context of our analysis of the true impact of Schedule 21. It is therefore not unreasonable for it to be suggested that the absence of any specific reference to the use of a knife should mean that the appropriate starting point should not be the same as it would be if the murder had been caused by a firearm or an explosive.
The difficulty is with the next stage in the process. Accepting that the starting point will not normally be the same as it would if the murder were inflicted by a gun or explosive, nevertheless the use of a knife and the precise circumstances in which it was used aggravate the seriousness of the individual offence. Paragraph 10, which identifies aggravating features for the purposes of the Schedule is illustrative or inclusive, but not, as has been said before, exhaustive.
For the reasons we have given, it is always an aggravating feature of any case involving injury —and of course death —that the injury or death has resulted from the use of a knife or any other weapon. In R v Richardson [2006] 1 Cr App R(S) 43, Latham LJ provided examples of “exceptional cases”. None of those apply to the present circumstances. The question for the sentencing judge in the end is not the compartmentalisation of the specific offence within this or that paragraph of the Schedule but the proper judicial assessment of the appropriate sentence to reflect the facts of the individual case and its seriousness and such mitigating features as there may be. Justice simply cannot be done by mechanistic filling in of “tick boxes” or unconsidered assignment of cases into compartments.
These three cases involve three individual victims: three young men, all utterly innocent, not seeking trouble, cut down in the street, their lives brought to an untimely end. The result: desolated, devastated parents and families telling this court about the consequences to them through their victim impact statements; grieving and mourning; lamenting that their sons will not become the men they would have been; lamenting, too, the lives that their sons will not enrich.
Deaths in circumstances like these outrage and horrify the collective conscience of the community as a whole. We repeat, and until the message is heeded we shall go on repeating: anyone who goes into a public place armed with a knife or any other weapon and uses it to kill or to cause injury, and who is brought to justice, must anticipate condign punishment.
R v A M
AM is 19 years old. He was just short of his 18th birthday when he committed murder. He had already been in trouble with the police. His convictions include one offence of unlawful possession of a bladed weapon.
On 21 August 2009, in the Central Criminal Court, before His Honour Judge Pontius and a jury, he was convicted of murder. He was sentenced to detention during Her Majesty's Pleasure with a specified period of fourteen years. An appropriate order was made under section 240 of the Criminal Justice Act 2003. He was found not guilty on a second count of robbery.
There were two co-accused. KG, born in 1989, was convicted of manslaughter on the count of murder. He was also convicted of robbery on the second count. His sentence was eight years' detention in a young offender institution. AW, also born in 1989, was found not guilty on both counts.
At about 5.30pm on 7 October 2007 a 17 year old boy, Rizwan Darbar, the victim of the murder, was sitting on a bench with two of his friends in a park in East London. They were listening to music on a mobile phone. They were not looking for trouble. They were approached by the...
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