Fadipe, R. v [2008] EWCA Crim 1027

[2008] EWCA Crim 1027Case No 2007/5514/B1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 30 April 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE HUGHES
MR JUSTICE TREACY
MR JUSTICE MADDISON
Between
R E G I N ACrownv
Between
MICHAEL FADIPE
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr G Knight appeared for AppellantMiss C Pattison appeared for Crown
J U D G M E N T
[1]MR JUSTICE TREACY: This appellant is Michael Fadipe. He is now 19 years of age. At the time he committed the offences the subject of this appeal he was 17 years and 10 months and he was 18 years of age at the time of sentence. On 16th August 2007 at the Inner London Crown Court, the appellant was convicted after a trial of two offences. He was firstly convicted of possession of a firearm with intent to endanger life, and secondly convicted of possession of ammunition without a certificate. In relation to the latter offence no separate penalty was imposed. In relation to the possession of the firearm with intent he was sentenced to detention for public protection. The minimum term of four years six months, less 238 days spent on remand, was specified. The single judge has granted leave.[2]The circumstances of the offending were as follows. On 3rd October 2006 police officers were engaged in an operation in West London. They came across a group of males, one of whom they recognised. The group was monitored and was seen to enter a shop. It then left the shop and three of the group walked ahead of the fourth member, who was this appellant. Police officers, some of whom were armed, conducted a stop of the group of four. Three of them stopped as instructed but this appellant walked and then ran off. He was chased down an alleyway. As he ran he discarded his jacket and he was seen to pull something from his trousers and throw it into a nearby garden. Eventually the appellant was cornered and arrested. The item which he had been seen to discard was recovered. It turned out to be a sock inside which was a Weihrauch HW94S self-loading pistol. The gun was found to contain three rounds of live ammunition.[3]When the appellant was interviewed he gave a brief prepared statement in which he denied possession of the gun. He contested his guilt at trial. There were in fact two trials. He was tried alongside a youth called Bridgeman, who was discharged on a submission of no case to answer part way through the first trial. That jury was discharged and a retrial took place. This appellant continued to contest his guilt but was convicted by the jury.[4]The appellant, as we have stated, was 17 years and 10 months at the time of committing these offences. He had previously been convicted. In July 2002 he was sentenced to a supervision order for an offence of assault with intent to rob. In October 2003 he was sentenced for section 18 wounding with intent to an 18 month detention and training order. He had been aged 13 and 14 years of age when involved in those matters. In addition, the appellant had been convicted also for possessing a prohibited weapon. He was sentenced in relation to that matter on 5th December 2006 to an 18 month conditional discharge. The prohibited weapon was some form of gas canister. The offence had been committed in June 2006 and therefore this appellant was on bail at the time the matters before this court were committed.[5]There was available to the sentencing judge a pre-sentence report prepared by a trainee probation officer. Amongst the observations of the reporting officer were the fact that the appellant saw the breaking of the law as something that everyone does at some point in their lives. The officer's opinion was that there was a high risk that the appellant would return to the same peers and pattern of behaviour which had led him to commit the present offences. The officer thought that it was evident that the appellant had ready access to firearms and said that upon release he may again end up in circumstances where he is carrying one or even in a situation where he feels the need to use a gun. The officer then made an assessment of the risk of harm which should be cited:
"It is my assessment that Mr Fadipe does not pose a 'significant risk' of harm to the public which is defined as an occasion that is life threatening and/or traumatic where recovery could be expected to be difficult or impossible. However, I am aware that the potential for the risk to raise to such a level is present and will increase to this level if Mr Fadipe is carrying a gun and finds himself in a confrontational situation. He may decide to use the weapon and if he does so then the effects could prove fatal. The risk will reduce if Mr Fadipe applies himself whilst incarcerated and address the cognitive deficits that he displays. The risk will also be reduced if Mr Fadipe has a focus and a goal, such as gaining employment or continuing his education, when he is released into the community."
A little later in the report the officer commented in these terms:
"Mr Fadipe is still young and has already demonstrated some changes in his behaviour. He has endeavoured to move away from the area in which he has offended and is concentrating on his education. Mr Fadipe has the potential to be a positive member of society and at the age that he is, it is my assessment that he still has the capacity to amend his behaviour considerably. It is my assessment that Mr Fadipe's risk level can be managed in the community."
Accordingly the probation officer proposed to the court that a determinate sentence be passed by the court.[6]Reliance has been placed upon that report by Mr Knight who submits to us that the judge was wrong to find that the appellant satisfied the criteria for an assessment of dangerousness. He relies on the observations in the concluding parts of the probation officer's report to which we have just referred.[7]In our judgment when the sentencing judge was considering the report in the passing of sentence he rightly observed that there were contradictory elements in that report. It seems plain to us, howenever, that the probation officer was reporting that this young man remained at considerable risk of coming into contact with firearms and indeed of using them if he found himself in situations of confrontation.[8]The further submission which is made to us by counsel is that the length of the notional determinate term taken by the sentencing judge was simply too long having regard to the age of this offender and his circumstances. Our attention has been drawn to materials which have accumulated since sentencing. There is a prison report, together with supporting documentation, which shows a good attitude on the part of this appellant and good progress whilst made in custody. There are also a number of other documents and references which we have considered and a letter from the appellant himself.[9]Our attention has been drawn to two authorities: Attorney General's Reference Nos 58 to 66 of 2002 [2003] EWCA Crim. 636 and Attorney General's Reference No 2 of 2000 (Hines) [2001] 1 Cr.App.R (S) 9.[10]Turning first to the criticism of the judge for making a finding of dangerousness, we observe that this was not a case where there was to be an automatic assumption made, notwithstanding the previous convictions recorded against this appellant. The judge's sentencing remarks showed that he was fully aware of the appellant's very young age when those earlier offences were committed. In our judgment the judge is not bound by the contents of the probation officer's report and the probation officer's assessment. That simply forms part of the information which is available to the sentencing judge and he must consider it alongside the other information available to him. The judge had available to him the information that this young man had become a relatively persistent offender in his teens, he had been convicted on eight occasions between 2002 and 2006 and two of those convictions related to specified offences. Moreover, he had committed these offences whilst on bail for the possession of a prohibited weapon. The judge having made an assessment on the information available to him is in a situation whereby this court will not normally interfere with his assessment if he has considered relevant principles and applied them to the facts of the case. That is apparent from the decision of this court in Johnson and others [2007] 1 Cr.App.R (S) 112. The judge in this case had the advantage over the probation officer of having seen this appellant throughout the trial process and in particular having seen him give evidence. The objective facts are that this young man had become a persistent offender so that these serious offences are not to be viewed in isolation. He was carrying a lethal working firearm, loaded with three bullets, in a residential area of London. The pre-sentence report described him as having no appreciation of the gravity of his crime even after conviction and, as already pointed out, described him as having ready access to firearms. The report in our judgment pointed to the risk of potentially fatal harm being caused in the future if the appellant did not mend his ways. That he had in the view of the probation officer, and indeed confirmed by the subsequent reports which we have seen, the potential to mend his ways is plainly something to the appellant's advantage but it cannot necessarily be decisive of the assessment which the judge had to make at the time of sentencing him. We note that at the time of sentencing the judge felt that the appellant was wholly lacking in remorse. There may be signs of hope for the future now, as exemplified in the material which we have seen today, and no doubt that will stand this appellant in good stead when a decision has to be made in the future as to whether it is safe for him to be released. However, we see no error in the way in which the judge went about his task, nor do we think he was wrong in making the assessment of dangerous which he did having regard to all the circumstances of this case. Accordingly, we reject the first submission made to us.[11]A further submission is made criticising the notional determinate term of nine years. That is said to be excessive and the two authorities to which we have already referred are relied on by counsel. Dealing first with Attorney General's Reference No 2 of 2000, Rose LJ commented that following a trial a sentence of at least seven years would have been expected in a case where the offender was convicted of possessing a firearm with intent to endanger life and possessing ammunition without a firearms certificate. The circumstances of that case were that police officers searching the address of a man who had been arrested found the offender who had thrown into a cupboard a sock containing a self-loading pistol. The pistol was loaded and ready to fire. A sentence of four years' imprisonment imposed by the trial judge was reviewed as unduly lenient and the sentence was increased to one of six years, taking account of the element of double jeopardy. It was in the course of the court's judgment in that case that the observations was made that following trial a sentence of at least seven years' imprisonment would have been expected. It is to be observed that that case differs from the present one in two respects. The offender in that case was 33 years of age and had no previous convictions. On the other hand, the firearm and ammunition found by the police were found inside a dwelling house and had not been taken out into the street, which we would regard as a significant distinguishing feature when compared with this case.[12]As to the other authority cited to us, R v Attorney General's Reference Nos 58 to 66 of 2002, that was a case involving possession of firearms by a drug gang in Manchester and of an altogether different order from the case which is before us today. In the course of the court's judgment, Kennedy LJ referred to Attorney General's Reference No 2 of 2000 and commented that that case, and another, demonstrated that in a contested case simple possession of a firearm together with ammunition with intent to endanger life merits a sentence of between seven and eight years.[13]The observations in those two cases are relied on by Mr Knight today as submitting that the appropriate level of sentence is in the range of seven to eight years and that account must be taken, in addition in this appellant's case, of the fact that he was under 18 years of age at the time he committed these offences.[14]The cases which are cited to us are not guideline cases in the ordinary sense, but they serve to demonstrate that the sentence which was passed in this case was a severe one upon a young person. Regrettably relative youth is no bar to this type of very serious offending and the experienced judge correctly referred to the public anxiety this type of offending gives rise to and the potential dreadful consequences of such offending. We observe that in Attorney General's Reference Nos 58 to 66 of 2002, the Attorney General addressing the court in February 2003, drew attention to the increase in gun crime especially in large cities and to the development of gangs who sometimes protect their business and their territory with guns. If anything public concern arising from the possession of firearms carried by young men in urban areas has risen since those submissions were made by the Attorney-General in February 2003.[15]In those circumstances, we do not consider that the two cases cited to us represent any sort of ceiling for this category of offending. In present days account will have to be taken of public anxiety and it should not therefore be thought necessarily that a ceiling of seven to eight years for simple possession of a firearm together with ammunition with intent to endanger life is still in place. But that is not a decision for this court to make today. We have to look at the facts of this particular case and we have given anxious consideration to this appellant's youth and the fact that there was information available to the sentencing judge, and confirmed by the information before us today, which shows that this particular appellant is a person with potential for the future, notwithstanding the serious crimes that he has committed.[16]After careful consideration and with some hesitation we have come to the conclusion that in all the circumstances the sentence which was passed in the court below was too long. We have come to the conclusion that the appropriate starting point in this case should have been one of seven years and six months. The result of that is that the minimum specified term would be a period of three years and nine months, less the 238 days which were spent on remand. We allow the appeal to the extent of reducing the sentence to that minimum term and to that extent this appeal is allowed.