Khatab, R v [2008] EWCA Crim 541

Case No 2007/04068/B1[2008] EWCA Crim 541
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday 29 February 2008
The Strand
London
WC2A 2LL
B e f o r e:
LORD JUSTICE DYSON
MR JUSTICE MADDISON
and
SIR RICHARD CURTIS
Between
R E G I N ACrown- v -
Between
AMAR KHATAB
Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)190 Fleet Street, London EC4Telephone 020-7421 4040(Official Shorthand Writers to the Court)
Mr J Dunstan appeared for Appellant
JudgmentFriday 29 February 2008
[1]On 5 July 2007, at Birmingham Crown Court, the appellant was convicted on count 2 of the indictment which charged him with the offence of assisting an offender, contrary to section 4(1) of the Criminal Law Act 1967. The particulars of the offence were that Mehtab Laqab having committed a relevant offence, namely the murder of Abed Hussain, the appellant, knowing or believing that Mehtab Laqab had committed the said offence or some other relevant offence, without lawful authority or reasonable excuse disposed of a stone pestle, with intent to impede the apprehension or prosecution of Mehtab Laqab. The appellant was sentenced on 6 July to four years' imprisonment. He appeals against sentence by leave of the single judge.[2]The co-accused Mehtab Laqab and Ateek Laqab were convicted on count 1 which charged them with murder.[3]The facts are these. The appellant was a drug dealer. On the evening of 19 December 2006 he spent some time with the deceased, Hussain, who was the father of three children, and two others, Farni and Arsen. The men travelled back to the appellant's home address. On the way Hussain quarrelled with the appellant. He claimed that the appellant had told Hussain's wife that he was back on drink and drugs and he demanded the payment of £10,000 with threats of violence. During the journey Hussain bullied the appellant and slapped him. The appellant arrived home and went in doors. He was in tears. Hussain grabbed hold of Farni and made him go close to the house before all three men left and walked away up the road. The appellant told his two brothers (the co-accused) what had happened. They decided to do something about it. Their mother tried to persuade them to stay in the house, but they ignored her. Ateek armed himself with a screwdriver and Mehtab with a stone pestle about six inches long. All three brothers left the house. By this time Hussain was about 80 yards away. Ateek and Mehtab caught up with him and attacked him, using their weapons to strike him on the head. Hussain fell to the ground and was struck at least one further blow before Arsen and Farni intervened to try to stop the violence.[4]Arsen contacted the emergency service. The police and an ambulance arrived just before 1am. They found Hussain lying on his back with an obvious serious injury to his head. He was still alive, but died on the way to hospital from his head injuries.[5]After the attack the appellant took the pestle off Mehtab and drove away. He disposed of it in a bin liner. About two days later he went to the police. When interviewed he told them that he was a drug dealer and that he had disposed of the pestle after the attack because it had blood on it.[6]The appellant is 23 years of age. He has a number of previous convictions, mainly for road traffic offences, but he also has a conviction on 2 May 2006 for perverting the course of justice for which he was sentenced to three months' imprisonment, consecutive to a sentence of two months' imprisonment for possession of a bladed article, and another conviction for obstructing the police for which he was sentenced to a 12 month community order on 5 April 2006.[7]There were four character references before the sentencing judge.[8]In passing sentence the judge said that in one sense the appellant was a lucky man because the whole tragedy was his fault. He had chosen to live the flash life of a drug dealer but when the going got tough, he ran crying to his younger brothers for help. He had got them into terrible trouble and had set in train events which led to the death of a close friend. He was brave with words but was not violent, unless women were concerned. He had taken care to stay out of the fight but had assisted one of his brothers by disposing of the weapon he had used. The jury's verdict meant that when he disposed of the stone pestle, he believed Hussain was doomed to die and that his brother was responsible for the death.[9]Counsel had argued before the sentencing judge, and has made the same point to this court, that the appellant should receive credit against what would have been the normal sentence after a trial because he had never disputed that he had taken and disposed of the weapon. Counsel had argued that it was a prerequisite to the appellant's guilt that his brother should be found guilty and that he could not have pleaded guilty until the jury found his brother guilty. The judge said, however, that the appellant had maintained that he had no reason to believe Hussain had been left in the condition in which he was, and the jury had rejected that argument. He went on:
"It is difficult to apply credit on the basis I am invited to, as if this were a plea of guilty, but I do take into account the fact that you showed elements of responsibility in your candour in interview and the conduct of your defence in this trial."
The appellant's previous conviction for perverting the course of justice showed that he had a fine disregard for the rule of law.[10]It is submitted by Mr Dunstan that the sentence of four years' imprisonment was too long. Two particular points are made. First, it is submitted that the judge should have given the appellant full credit as if he had pleaded guilty to the offence. Secondly, and in any event, having regard to other authorities, in particular R v Lee Manning [2004] 2 Cr App R(S) 74 and Attorney General's Reference No 19 of 1993 (R v Connor Edward Downey) (1994) 15 Cr App R(S) 760, the sentence of four years was too long.[11]In developing the first of these points counsel submits that the appellant always accepted that he believed that his brother Mehtab had committed a relevant offence and that he was therefore guilty of the offence charged, provided that the prosecution could prove Mehtab's guilt of the primary offence. The appellant's trial was conducted on that basis; there was virtually no cross-examination of any witness. At the close of the evidence, the prosecution decided that the case should be left to the jury on the basis that the appellant knew or believed that Mehtab had committed the offence of murder or manslaughter rather than any other relevant offence such as assault occasioning actual bodily harm at the time when he disposed of the pestle. During submissions in the absence of the jury counsel made it clear that this would afford the appellant a potential defence which he had not previously anticipated having. This arose from the account given by the appellant in his police interviews which was relied on by the prosecution as truthful. In those interviews he had said that he only found out the next day that Hussain had died and that when he left the scene of the murder he had only thought that there had been a fight. Counsel submits that it was entirely reasonable for the appellant to put the Crown to proof that Mehtab had committed the offence of murder. Proof of that was a prerequisite to the appellant's guilt on the basis on which the Crown were now putting their case. Taking that into account and the fact that the appellant had gone to the police within two days of committing the offence and told them exactly what he had done, it is submitted that the judge should have given a discount equivalent to that which would have been given if he had pleaded guilty at the outset.[12]As regards the two authorities to which we have referred, we note that in Attorney General's Reference No 19 of 1993 the offender had pleaded guilty to manslaughter and to perverting the course of public justice. When the deceased woman had rejected the offender's sexual advances, he had put his hand over her mouth to stop her from shouting and killed her. He then dismembered her body and put the parts into plastic bags which he disposed of in various places around the City. The offender did not disclose what he had done to the police for about five years. Following the Attorney General's reference, this court increased the sentence, stating that at first instance it would have been inappropriate to pass a sentence of less than two years, and three would not have been excessive for the offence of perverting the course of public justice.[13]Mr Dunstan submits that that was a more serious offence than the present case. Taking account of both matters, it is submitted that the judge erred in passing a sentence as long as one of four years' imprisonment.[14]We are persuaded that there is force in those submissions. We are not persuaded that the judge was wrong not to treat the appellant as if he had indicated a plea of guilty at the earliest opportunity, but clearly having regard to the way in which the appellant conducted his defence, he was entitled to a significant discount from the sentence which would have been appropriate had he maintained a steadfast plea of not guilty all along. We also think that there is force in the submission that the present case is somewhat less serious than Attorney General's Reference No 19 of 1993. Nevertheless, although the appellant was not charged with the offence of murder as if party to a joint enterprise, the fact is that he assisted an offender who was convicted of the charge of murder.[15]Taking account of all these circumstances it is our view that the correct sentence in this case was one of three years' imprisonment. Accordingly, we quash the sentence passed and substitute one of three years' imprisonment. To that extent the appeal is allowed.