Attorney General's Reference Nos. 143 and 144 of 2006 [2007] EWCA Crim 1245

No. 2006/06453/A6 & 2006/06454/A6, 2007/01602/C3 & 2007/00060/C3

[2007] EWCA Crim 1245

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Monday 14 May 2007

The Strand

London WC2

B e f o r e:

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

THE CRIMINAL JUSTICE ACT 1988

Between

R E G I N ACrown

- v -

Between

DELAND ANTHONY BROWN

DONNEL MARCUS CARTY

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MR M ELLISON appeared for ATTORNEY GENERAL

MR S DENISON appeared for CROWN

MR D R B WHITEHOUSE QC and MISS S CADDLE

appeared for OFFENDER DONNEL MARCUS CARTY

MR C GRIFFITHS QC appeared for OFFENDER DELAND BROWN

J U D G M E N T

THE LORD CHIEF JUSTICE:

Introduction

[1]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

[2]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

The Applications by the Attorney General

[3]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 of the Criminal Justice Act 1988 on the ground that they were unduly lenient. We granted leave at the outset of the hearing.

The Facts

[4]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

[5]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

[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.

[7]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.

[8]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.

[9]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.

[10]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.

[11]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". He was arrested on suspicion of involvement in the December robberies on 8 March 2006. When interviewed he made no comment.

[12]The prosecution were not able to prove which of the offenders had stabbed the deceased; but each had joined in the use of a knife with intent to cause at least serious injury in the course of the robbery. Both were sentenced on the basis of there being no proof of an intention to kill.

[13]Both were treated as of previous good character and both were of normal maturity for their age.

[14]The victim impact statement of Adele Eastman, who was engaged to be married to Tom Ap Rhys Pryce was read to the court. It also received widespread publicity. The details in that statement are heart-rending. The Judge's Sentencing Remarks

[15]The judge sentenced the offenders without pre-sentence reports, which he regarded as unnecessary. He gave the following reasons for the sentences that we have set out at the beginning of this judgment. In relation to the events of 23 December 2005 the judge said that he was satisfied that the offenders went on to the underground system with the intention to rob passengers, knowing from the outset that at least one member of the gang had a knife and realising that it would be used if a victim resisted. The intention would be to inflict a "duking" injury, ie to stab the thigh or buttocks to cause pain and humiliation to the victim. Whether or not they themselves had stabbed the victims, the offenders had certainly seen the stabbings and continued to take part in the robbery.

[16]Dealing with the tragic events of 12 January 2006, the judge observed that the offenders had entered the station intending to rob a victim. One or both had a knife and each knew that violence would be used if the victim resisted and that injury might go beyond the "duking" injury if resistance continued. The judge could not be sure whether one knife or two was used on Mr Ap Rhys Pryce, but both offenders were at the scene and actively took part in the attack. The judge said that he did not regard as relevant a previous conviction of Carty for assaulting a police officer in 2003 and sentenced both offenders as young men of previous good character. The judge observed that he had no doubt that that pattern of offences showed that there was a significant risk to members of the public of serious harm being occasioned by the commission by each offender of further specified offences under Schedule 15 of the Act, in particular street robbery and wounding with knives. This led him to impose sentences of detention for public protection for all the counts save murder, as set out above.

[17]Turning to the murder of Mr Ap Rhys Pryce, the judge dealt first with Carty. The offence attracted in Carty's case an automatic sentence of detention for life. The issue was the minimum term that Carty would have to serve before being considered for release on licence. The judge correctly observed that section 269(3) of the Criminal Justice Act 2003 required him to have regard to the seriousness of the offence and any other offences associated with it. He also had to take account of the provisions of Schedule 21 to the Act. Because Carty was over 18 at the time of the offence and the murder was committed in the course of a robbery, the starting point was a minimum of 30 years. The judge then continued as follows:

"If you had been under 18, the starting point would have been one of 12 years. Because you are only just over the 18-year watershed, I have taken that factor very much into account in deciding what the minimum term should be. In my view the fact that you are just over the watershed of 18 years requires that I reduce that minimum term significantly from the starting point of 30 years. I am not satisfied that you particularly were the ringleader. In my view of the evidence you and your co-defendant were involved in the murder of Mr Ap Rhys Pryce together. It does not to my mind matter in terms of culpability who actually wielded the knife. As I have said, I cannot determine who did so in any event. I take into account the fact that you have no significant previous convictions at all. I also take into account my conclusion that I cannot be sure that the two stab wounds were intended to kill Mr Ap Rhys Pryce. I have also to take into account that this was the most serious offence of a series of offences which involved knives, where victims who were innocent members of the public, who were travelling on the underground railway or going from public transport, suffered. To an extent, that factor is reflected in the 30-year starting point. Having considered all these factors together, I have decided that the minimum term should be set at 21 years. From that period must be deducted the time spent on remand, which is 312 days."

[18]In imposing a minimum term of four years in respect of the sentence of detention for public protection imposed in respect of count 6, the judge observed that Carty had pleaded not guilty to that offence.

[19]Turning to Brown, the judge observed that because he was 17 at the time that the offence of murder was committed, the starting point in his case was twelve years. He continued:

"You took, in my view, the same part in that offence as did Donnel Carty. You were equally involved and in my view of the facts as I have seen and heard them in the trial, you are equally culpable for that offence. It is pain from your own evidence that you are in fact an intelligent young man. You left school with GCSEs. You went on a course in a college and you are qualified to teach sports to children. It cannot be said in my view that you were someone who just tagged along. This was a murder that was committed in the course of a robbery and in my view that is a highly significant factor which I can take into account and must take into account when setting the minimum term in your case. I also have to take into account the fact that in your case, as in the case of Donnel Carty, this murder was the most serious offence in a series of offences involving knives, where victims were the innocent members of the public who were travelling on the underground in London or going from public transport. That, to my mind, is something that I must take account of in your case under section 269(3)(a) of the 2003 Act. I accept in your case that I cannot be sure that there was an intent to kill. However, in all the circumstances I regard this as a very grave case and it is one in which the minimum term must in my view be significantly above the starting point of twelve years. In all the circumstances, I have concluded that the minimum term should be one of 17 years, less 312 on remand that you have spent."

So far as count 6 is concerned, the judge remarked that Brown had pleaded guilty, albeit at a late stage. That no doubt explains why the judge directed that the minimum term to be served should be three years, in contrast to the four years in the case of Carty. Submissions

[20]Mr Ellison for the Attorney General started his submissions by suggesting that there was no basis for significant differentiation between the two offenders; although there were different statutory starting points, the end points should have been close together. Mr Ellison submitted that the term of thirty years had been correctly identified by the judge as the starting point in the case of Carty. This was a murder committed in the course of robbery and therefore by definition particularly serious.

[21]There was mitigation. First, Mr Ellison accepted that Carty's youth inevitably resulted in a significant reduction from the starting point. Secondly, the judge found that there was no evidence of intention to kill. However, Mr Ellison submitted that there were factors which aggravated this offence. First, the robbery was very serious; a knife had been taken by the robbers with the intention of being used; it was used to cause wounds of a type that were life-threatening. A further and significant aggravating factor was the nature of the earlier offences which the judge rightly ruled had to be taken into account. These were of serious gang robbery; a knife was used not merely to threaten but to stab on two occasions, on one to cause really serious injury. Having regard to these factors, Mr Ellison submitted that the minimum term did not adequately reflect the seriousness of the offence, to the extent that it was unduly lenient.

[22]Mr Ellison made the same points in relation to Brown. The judge took twelve years as the starting point, but the aggravating features identified in relation to Carty applied equally to Brown. They called, in Mr Ellison's submission, for a significantly greater increase from the twelve year starting point than the five years that the judge had adopted.

[23]On behalf of Carty Mr Whitehouse QC started by observing that the offences in this case had attracted intense media coverage, as had the sentencing hearing. The victim of the murder was a professional man, a solicitor working for Linklaters; he was engaged to be married to a professional woman who had produced an impact statement that conveyed the devastating effect that the murder had had on those who loved the victim. There was, it seemed to us, a veiled suggestion that it was the professional standing of the victim that perhaps counted for sentences which Mr Whitehouse submitted were manifestly excessive. Realistically, Mr Whitehouse accepted the aggravating features referred to by Mr Ellison, but he submitted that the youth of Carty had not been taken sufficiently into account in mitigation. Not merely was he young, but he was incompetent and naive as a criminal, as indicated by the fact that he used the mobile phone that had been stolen and had tried to use the Oyster card. Mr Whitehouse bolstered these submissions by a further submission that there had been a disparity in sentencing, which was itself a valid ground for attacking the minimum term imposed in relation to Carty. Mr Whitehouse observed that the only distinction between the position of Carty and that of Brown was that Carty was ten months older than his co-offender. The judge had expressly found that, so far as the seriousness of the offending was concerned, there was nothing to choose between them. This was reflected by the fact that they had received identical sentences in respect of counts 1-4. The difference of four years between the minimum term imposed on Carty and that imposed on Brown constituted, in Mr Whitehouse's submission, a gross disparity which violated the principle of parity in sentencing.

[24]Mr Griffiths QC on behalf of Brown started his submissions by suggesting in a manner that was not veiled that the sentence imposed on the offender Brown reflected the standing of the victim and would have been perhaps lesser had one of the other victims of the robberies been the man who had been murdered. Mr Griffiths submitted that the trial judge had been mistaken in principle in attempting to balance the sentences imposed on the two offenders. He had mistakenly increased the sentence on Brown far more than could be justified in an attempt to reduce the disparity between the two sentences. In his submission the different starting points were statutory requirements and the proper course that the judge should have adopted would have been to sentence Brown quite independently of the sentencing exercise in relation to Carty.

[25]So far as the facts of the offence were concerned, Mr Griffiths submitted this was a murder that had occurred in the course of a "run of the mill robbery". He even went so far at one point as to suggest that there was nothing particularly serious about the murder which might have seemed to be a challenge to the starting point taken in relation to Carty. In short, Mr Griffiths submitted that the minimum term imposed on the offender Carty was manifestly excessive, having regard to the facts of the offence.

Conclusions

[26]We reject the suggestion that the sentences in this case were influenced by the fact that the victim was a professional man engaged to be married to a professional woman. We also reject the submission made by Mr Whitehouse that the naivety of the offender Carty was relevant mitigation. There was nothing naive about the offences committed by Carty.

[27]We turn to Mr Griffiths submission that the judge erred in principle in his approach to the sentencing exercise. What is the appropriate approach where there are two co-defendants who have committed a murder jointly and where one is just over 18 years of age and the other just under? That question raises an acute problem for the sentencer where, as here, the murder falls into the particularly serious category that attracts a starting point for an offender who is over 18 of a 30 year minimum term. Is Mr Griffiths correct to submit that the court should determine the sentence of each offender independently of the position of the other? We do not consider that he is. Schedule 21 provides different starting points where the facts of the offence are common to both offenders only because of the disparity between their ages. In such circumstances the sentencer should move from each starting point to a position where any disparity between the sentences is no more than a fair reflection of the age difference between the offenders. This not only complies with the obvious requirements of justice, it accords with the guidance given by this court in R v Peters

[2005] EWCA Crim 605

[2005] 2 Cr App R(S) 101

. Giving the judgment of this court Judge LJ (then Deputy Chief Justice) referred to:

"The all too familiar case of murder following an attack on a passer-by in the street at night. They may be 17, 19 and 21 years old."

He went on to say: 28. "Therefore, in relation to offenders aged up to 21 or even 22 years, the determination of the minimum term in accordance with the legislative framework in Schedule 21 needs to be approached with an acute sense of how inevitably imprecise the statutory criteria may sometimes be to issues of culpability, and ultimately to 'seriousness' as envisaged in section 269 itself." 29. "As was made clear in that case, the starting points cannot be approached in a mechanistic way. Thus, if two offenders of equal culpability kill in the course of a robbery and one was aged seventeen-and-three-quarters and the other eighteen-and-a-quarter, the statutory starting points would be 12 years and 30 years, but significantly divergent minimum terms for the two offenders would be neither just nor rational."

He went on to say:

[28]Adopting this approach, we do not consider that the small disparity in age between Carty and Brown could properly be reflected by more than one year's difference in the minimum terms imposed upon them. Is Brown's sentence unduly lenient so that his minimum term should be increased to within a year of Carty's? Or is Carty's sentence manifestly excessive in that it exceeds Brown's by more than a year so that it should be reduced to within a year of Brown's minimum term? Or do both sentences require to be raised or lowered?

[29]We reject Mr Griffiths' submission that the facts of this case cannot properly be described as "particularly serious". Of significance, in our judgment, is the fact that a knife was taken with the intention that it should be used; there was premeditation in relation to the use of that knife; and there was a deliberate intention that it should be used to inflict injuries that would become progressively more serious in the event of resistance and which it must have been obvious were potentially life-threatening. The line between intent to kill and the intent in this case is a fine one. This was a very serious murder, which of itself required a sentence in the case of Brown that would go well above the twelve year starting point. Added to that is the further very significant aggravation of the horrific history of gang robbery on the underground again involving the use of a knife and the use in one case with the intention of causing really serious injury. This was a very serious aggravating factor.

[30]We have been referred by counsel to a number of authorities, some of which were relied upon both by counsel for the Attorney General and counsel for the offenders. That is indicative of the fact that none of those authorities was very close to the facts with which we have to deal. Having considered those authorities and attempted to set the facts of this case within their framework, we have reached the conclusion that the sentence imposed on Brown was unduly lenient. His appeal will accordingly be dismissed.

[31]We are not persuaded that Carty's sentence was manifestly excessive. Nor, it follows from our earlier comment, do we consider that it was unduly lenient. We consider that the judge reached a perfectly appropriate sentence in his case. Accordingly Carty's appeal against sentence is dismissed. We make no order in relation to his sentence, other than that to which we have referred in respect of count 2.

[32]As far as Brown's sentence is concerned, we increase the minimum term to 20 years. __________________________