Asare & Ors, R. v [2008] EWCA Crim 2516

[2008] EWCA Crim 2516Case No 2008/03500/A1Case No 2008/03537/A1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday 15 October 2008
The Strand
London
WC2A 2LL
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)
MR JUSTICE OWEN
and
MR JUSTICE SWEENEY
R E G I N A
- v -
SAMUEL ASARE
ENOCH KWESI
DAYNE RAJNATH
DANIEL READ
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Mr R M L Duval appeared on behalf of the Appellants
Samuel Asare, Dayne Rajnath and Daniel Read
and on behalf of the Applicant Enoch Kwesi
J U D G M E N T
Between
Asare & OrsDefendantRCrown
[1]On 14 March 2008, in the Crown Court at Bristol, Samuel Asare, Dayne Rajnath, Daniel Read and Enoch Kwesi pleaded guilty to an offence of blackmail. On 30 May 2008 they were sentenced as follows: Samuel Asare, to three years eight months' detention in a young offender institution; Dayne Rajnath, to three years eight months' imprisonment; Daniel Read, to three years two months' detention in a young offender institution; and Enoch Kwesi, to three years eight months' imprisonment. Samuel Asare, Dayne Rajnath and Daniel Read appeal against those sentences with the leave of the single judge. At the beginning of this hearing we gave leave to Enoch Kwesi to appeal against his sentence.[2]The particulars of the offence to which the appellants pleaded guilty are in the following terms:
"[The four appellants] on the 15th November 2007, with a view to gain for themselves or for another, made unwarranted demands of money with menaces from Mohammed Duale."
[3]It has in the past been observed that the standard case of blackmail falls somewhere between an offence of robbery and an offence of theft. For reasons that will become apparent when we outline the facts of this case, this was an offence that was much closer to a robbery than to an offence of theft.[4]The appellants are young men in their early twenties. Asare, Read and Kwesi were formerly of good character. Rajnath was effectively of good character.[5]The background to the offence is that Samuel Asare was at college in Bristol with Mohammed Duale. In April 2007 Asare lent Mohammed Duale the sum of £2,000. By September 2007 the money had not been repaid. There had been numerous requests for repayment; but Mohammed Duale had made himself uncontactable. On 3 November 2007 Asare travelled on his own from London to Bristol to visit Duale at his home. Again during that meeting there were further demands for repayment of the money, but Mohammed Duale was not prepared to pay.[6]On 15 November 2007 Asare drove to Bristol accompanied by his three co-appellants. He knocked on the door of Mohammed Duale's house and entered with his permission. An argument then ensued as to the repayment of the money. The other three appellants were waiting outside the house in Asare's car. Having heard the argument they entered. They variously wore hats, masks and balaclavas. They had with them various makeshift weapons such as dumbbell handles and a cosh of some description. Furthermore, they had duct tape with which to immobilise their victims. Property of any value was collected by some of the appellants from around the house and piled onto a blanket on the dining room floor. Throughout the incident Asare was "directing the others".[7]The police, who had been alerted by other members of the family to whom Mrs Rouble had been speaking on the telephone when the attack began, arrived quickly and arrested all four appellants at the scene.[8]Each of the appellants pleaded guilty at a stage that attracted the full discount.[9]The central submission in each case was that the sentences imposed by the learned judge demonstrated that he had taken too high a starting point, namely a term of the order of five and a half years, in relation to the three year eight month sentences.[10]Mr Duval, who appears for each of the appellants, submits that the learned judge failed to pay sufficient regard to the mitigating features of the offence, namely that the first entry was lawful, Asare having been invited in; that violence had not initially been intended; and that it was not expected that other members of Mohammed Duale's family would be present. It was also submitted that although the incident was plainly terrifying, the injuries sustained by the victims were minor. Mr Duval further argued that the learned judge failed to take sufficient account of the relatively young age of the appellants and of their positive good character. It is plain that all are young men of ability and ambition. They are either pursuing academic courses or are working. We note in particular that all have the advantage of coming from supportive families.[11]In passing sentence the learned judge spelt out the bases upon which he was sentencing, namely that the money was owed, that its repayment was overdue, and that Asare had asked repeatedly for repayment. He also bore in mind that although the appellants had gone equipped for violence, they did not initially intend to use it, but resorted to it as the situation developed. The judge also identified the aggravating features of the offence, namely that all four appellants went to Mohammed Duale's house late on a November evening, three wearing masks to conceal their features, wearing gloves (plainly to avoid detection), and equipped with both weapons and ducting tape with which to tie up their victims. The judge described what happened in the house in the following terms:
"You took Mr Duale into one room at first and his mother was taken to another. Mr Duale's hands were bound with the tape. You, Read and Kwesi, then took him to the room where his mother was being held and there you, Rajnath, were securing her by holding her wrists." 12. "
Then Mr Duale's father, Mr Abdullah Mohammed Duale, came home. .... The father became the third victim. Three of you dragged him into the house and then further assaulted him, handling him roughly, throwing him onto a couch. He had his hands taped behind his back with the ducting tape." 13. "Mr Duale himself says that he felt he was violated in his own home and felt the consequences. He said that he felt as though he was going to die or be seriously injured in front of his mother. He said he was made to feel what he described as useless because he could not help his mother and fend off this attack. .... 14. .... 15. Mrs Roble, she was knocked onto the sofa. She was tied up with ducting tape. She saw, she says, her husband and son maltreated. She said she felt very scared in the house after this; indeed, she felt, in her own words, paranoid and she wanted to move home because of this. The father, Mr Abdullah Mohammed Duale, he saw his son and wife held and maltreated. He says he was hit to the eyes and the shoulder. He said the incident left him scared and very frightened for the safety of this wife and family." 16. "an extremely serious offence of a very nasty type against your three victims, behaving in a highly criminal and, indeed, gangster-like manner -- in the manner of enforcers as they are sometimes called. That cannot be tolerated in this city, or in any other city for that matter."[12]In the course of his submissions to us, Mr Duval invited our attention to a number of decisions of this court, and in particular to R v Conley (1989) 11 Cr App R(S) 541 and R v Greer and Greer [2006] 1 Cr App R(S) 546. We have taken full account of those decisions, but the assistance that they afford is limited given the serious aggravating features of this offence, which was directed not only at Mohammed Duale (who owed the money to Asare), but also to his mother and father who were subjected to an horrific ordeal at the hands of a number of armed and masked intruders -- an ordeal that has had the consequences noted by the sentencing judge.[13]The learned judge formed the most serious view of this offence. In our judgment he was fully justified in so doing. We are not persuaded that he took too high a starting point. The sentences that he imposed were heavy but were fully warranted. It cannot be said that they were manifestly excessive. It follows that these appeals are dismissed. _____________________________