Abuhamza, R. v [2011] EWCA Crim 642

[2011] EWCA Crim 642

Case No 2010/01980/A2

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Tuesday 1 March 2011

Between

R E G I N ACrown

The Strand

London

WC2A 2LL

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

(Lord Judge)

MR JUSTICE HENRIQUES

and

MR JUSTICE DAVIS

__________________

- v -

Between

JUNAID ABUHAMZA

ANGELA MAVLETTE GORDON

__________________

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__________________

Mr B Singh appeared for Appellant Junaid Abuhamza

Mr C Draycott appeared for Appellant Angela Gordon

Mr A Smith appeared for Crown

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J U D G M E N T

THE LORD CHIEF JUSTICE:

[1]These are appeals by Junaid Abuhamza and Angela Gordon against sentences imposed on them at Birmingham Crown Court by Roderick Evans J on 12 March 2010 following their respective convictions on one count of manslaughter of a child and five counts of cruelty to five more children (the dead child's brothers and sisters).

[2]This is a pitiful and profoundly distressing case. In summary, after months of violent ill-treatment, six children, aged between 4 and 12 years, in addition suffered from malnutrition in a home which was, as the photographs taken immediately after the death of one of the children show, filled with an abundance of good, wholesome food. One of the children, Khyra, then aged 7, suffered from such severe malnutrition that, after being starved for months, she weighed only 37 pounds. Her health was so fragile that when she contracted a childhood illness she was unable to resist it and so she died.

[3]On 12 March 2010 the appellants were sentenced as follows. In the case of Abuhamza, on count 1 (manslaughter) he was sentenced to imprisonment for public protection with a minimum term of seven and a half years; on counts 3, 4, 5, 6 and 7 (cruelty to a child), he was sentenced to concurrent terms of four years, five years, five years, four years and four years' imprisonment respectively. The total sentence was imprisonment for public protection with a minimum term of seven years and six months. An order was made under section 240 of the Criminal Justice Act 2003 that the days spent in custody on remand were to count towards sentence. There is no appeal by him against the order of imprisonment for public protection. The appeal is directed to the assessment of the determinate term. Mr Balbir Singh on his behalf makes it clear that the broad submission is that the starting point taken by the judge was too high.

[4]In the case of Ms Gordon, she was sentenced on count 1 to fifteen years' imprisonment, and on counts 3, 4, 5, 6 and 7, to sentences identical to those imposed on Abuhamza. The sentences were ordered to run concurrently with each other. A direction under 240 of the Criminal Justice Act 2003 was made that the days she had spent in custody on remand were to count towards her sentence. The sentence of fifteen years' imprisonment equated to the starting point in the assessment of the minimum term of seven and a half years on Abuhamza on count 1. Mr Draycott on her behalf adopts the argument that the starting point was too high.

[5]In relation to the death of the child, this is a case in which history repeated itself. There is no doubt that when she was a young girl, Abuhamza's sister had been killed by their father in circumstances which amounted to unlawful homicide. He was charged with manslaughter and sentenced appropriately.

[6]The appellants were charged with Khyra's murder and with cruelty to each of Ms Gordon's other five children. The case proceeded as a trial, but on the first day Abuhamza offered a plea to manslaughter which the Crown was not prepared at that stage to accept. The trial proceeded until it became derailed in circumstances which do not matter at this stage. He pleaded guilty to the five counts of cruelty to a child. A second trial was then started. Partway through the defence case a plea was tendered by Abuhamza which was accepted on the basis of diminished responsibility.

[7]The case against Ms Gordon proceeded throughout as a trial until on 25 February she changed her plea to guilty on the count of manslaughter and the five counts of cruelty.

[8]This is not a case in which the public interest will be advanced by a long, narrative account of the last few months in the life of Khyra and the lives of her brothers and sisters.

[9]Until she became acquainted with Abuhamza in September 2007, the evidence suggests that to the best of her ability Ms Gordon was a good mother. She looked after her children properly and reasonably well, although they had problems. Some of them had special educational needs. This was not a prosperous household. But there was nothing to suggest that any of the children was subjected to ill-treatment.

[10]Abuhamza had been a friend to the family. He moved in with Ms Gordon and her children. Immediately after he did so he introduced into the household a very severe regime. Following Khyra's death investigations revealed that in December 2007 teachers at her school reported her for stealing food. From what we now know, but would not have been apparent then, it is plain that she was already being deprived of proper food. The effect of the report was that three of the children, Khyra and two others, were removed from the school to be educated at home, although all three children had special educational needs. It is plain that they would have been better off if they had remained at school and the two appellants had addressed how it came about that Khyra had been reported for stealing food.

[11]There was evidence from a neighbour who said that there was an occasion when he saw Khyra go into his garden and eat the scraps of stale bread that he had left out for the birds.

[12]It is relevant to our consideration of the sentence in this case that, quite apart from the starvation, there was a great deal of direct personal violence. For example, it was common for the children to be beaten with a cane. It is difficult nowadays to comprehend that our Victorian forefathers thought that the cane was a useful implement in the bringing up of children. However, this was not the carefully disciplined use of the cane; the cane was used frequently and indiscriminately.

[13]The appellant Abuhamza was later to admit that he had beaten the children with a stick and had sent them into the back garden when he had done so. Sometimes they were put into a small "garden shed" (an outbuilding of which we have seen photographs) as a punishment for about an hour. He denied, as the children had said, that he made them sleep in the shed, but he accepted that on occasions it had been dark and that the children would have been frightened. It would have been apparent to anybody that any child would have been frightened at being locked in such a confined place.

[14]Another form of ill-treatment was that the children were put "in detention" which required the child in question to stand for anything up to an hour with his or her hands on the head. Another yet more unpleasant punishment was being ordered to stand with hands on head in front of a coal fire.

[15]There were allegations by the surviving children of punishments such as having to sit in cold water; of Abuhamza pouring cold water over them; and of being sent outside into the cold -- and this was in the winter months.

[16]At 6am on 17 May 2009 Ms Gordon called for an ambulance because one of her children was dead. Paramedics arrived at the family home in Handsworth, Birmingham. Khyra was indeed dead. It was immediately obvious that her body was emaciated. She was found in the front bedroom in the house with her five brothers and sisters. She was taken to hospital where she was pronounced dead. There was obvious evidence of severe malnutrition. Marks on her body indicated that she had been beaten. Of the 60 marks found on her, a good many were the result of deliberate violence.

[17]We have seen the dreadful images of her emaciated little body.

[18]Although the other five children showed signs of malnutrition, they were fortunately less emaciated than their dead sister.

[19]When he was interviewed by the police Abuhamza immediately admitted that there had been some physical abuse and that he had controlled the children's eating for disciplinary reasons. He denied having starved Khyra to death.

[20]When she was interviewed, Ms Gordon made no comment.

[21]The submissions before us are that the sentences were excessive; that in the end the judge had to deal with the cases of both appellants on the basis that they were not guilty of murder but guilty of manslaughter on the ground of diminished responsibility; and that (without entering into a jurisprudential disquisition of its significance) the judge found that neither appellant intended to cause death or really serious harm.

[22]At the second trial three psychiatrists (one for the Crown and two on behalf of Abuhamza) agreed that he suffered from schizophrenia and that in the period leading up to Khyra's death he had suffered a relapse and experienced a psychotic episode. When asked to consider whether the schizophrenia substantially diminished Abuhamza's responsibility for the child's death, the psychiatrists stated:

"It is agreed that for approximately two weeks before Khyra's death his schizophrenia did substantially impair his mental responsibility. He was unable to comprehend that Khyra was dying. .... Prior to the final stage we agree it was unlikely that his schizophrenia impaired his mental responsibility."

[23]In the light of the medical evidence the prosecution decided that they would not pursue the case of murder before the jury, and the judge later indicated that he thought that was the correct decision to make. The Crown accepted Abuhamza's plea to manslaughter on the basis of diminished responsibility.

[24]Ms Gordon had been examined, and then re-examined, in the context of the fact that she had been living with Abuhamza who had suffered from the delusional psychotic episodes to which the psychiatrists had referred. Once it was decided that the murder charge against Abuhamza should no longer be pursued, Ms Gordon entered a plea of guilty to manslaughter on the basis that Khyra's death had been caused by her gross negligence. That plea was not accepted by the prosecution and so the trial proceeded. Nevertheless, her mental state continued to be re-assessed throughout the trial. Eventually, she changed her plea to guilty to manslaughter on the basis that she accepted that she had been party to Abuhamza's unlawful conduct, which resulted in Khyra's death, and also to the five counts of child cruelty. The psychiatrists agreed that her mental responsibility for Khyra's death would have been substantially impaired. They stated:

"She had developed clinical depression at or about the beginning of 2008 .... This was mild, but deteriorated .... to severe depression. She was suffering from severe depression for approximately one month prior to Khyra's death. Junaid Abuhamza's schizophrenic illness was a significant psycho-social stressor which contributed significantly to Ms Gordon's depressive illness. .... On the balance of probabilities Ms Gordon's severe depression did substantially impair her mental responsibility for her acts and omissions in respect of Khyra's death."

Faced with this material, the Crown decided not to proceed with the murder charge. Again the judge agreed with that decision.

[25]It is difficult to do justice to the meticulous care and sensitivity with which the judge approached his sentencing responsibilities in this distressing case. After a consideration of a number of sentencing decisions, and a careful analysis of the approach to which they might help him arrive, the judge concluded that the cruelty suffered by all of the children was horrific. It was made worse because Ms Gordon was their mother. He was not prepared to deal with the case as one of neglect. He concluded that it was one of cruelty: cruel punishments introduced by Abuhamza, to which Ms Gordon became a party. The judge referred to the cold water; the standing outside in the cold; the beatings; the marks on Khyra's body, which indicated that she had been beaten at a time close to her death; the deprivation of food; the reduction of Khyra's body to a skeletal condition; and the infection consequent on malnutrition which had led to pneumonia and ultimately to septicemia, the immediate cause of her death. The judge observed that Khyra had died of starvation in a house where food was abundant. He also noted the malnutrition from which each of the surviving children had also suffered, and observed that the suffering of each of the children was difficult to comprehend. The judge then addressed all the available information about Abuhamza's background, the way in which he had been ill-treated as a child, and the dreadful example with which his own father had provided him. He noted that Ms Gordon had been a "caring and good enough mother" until she came under Abuhamza's influence. However, he pointed out that although there was mental illness in the case of Abuhamza until two weeks before Khyra's death, on any view (and it was the view of the psychiatrists) he perfectly well appreciated the impact of his actions upon the children. So the responsibility level was significant.

[26]The judge then examined Ms Gordon's history and the problems identified by the psychiatrists. She had been the primary carer for the children and should have protected them -- at any rate before there was a severe deterioration in her mental health. There was a significant period of time when she could have protected them. But, rather than protect them, she had played her part in the conduct which led to the cruelty to the children and ultimately to the death of Khyra.

[27]The judge found no evidence to suggest that a disposal under the Mental Health Act would be appropriate in the case of either appellant. He was left with no alternative but to impose lengthy terms of imprisonment. He considered the dangerousness provisions and concluded that imprisonment for public protection was necessary in Abuhamza's case because he represented a significant risk of serious harm from the commission of further specified offences because he would not comply with his medication and he had limited insight into his illness. He agreed with the view expressed by the psychiatrists that Abuhamza did indeed represent a danger. Having examined the evidence, the judge was satisfied that it would not be appropriate to conclude that Ms Gordon was dangerous and so in her case a determinate sentence would be sufficient.

[28]The judge examined, as we have examined in our pre-reading, a number of cases in which the issues of manslaughter in circumstances where death is the result of neglect and ill-treatment have been considered. They are: R v Watts

[2002] 1 Cr App R(S) 56

[2001] EWCA Crim 1427

; R v Wright

[2003] 1 Cr App R(S) 53

[2002] EWCA Crim 1656

; R v Onley

[2005] 1 Cr App R(S) 26

[2004] EWCA Crim 1383

; and R v H [2009 2 Cr App R(S) 90,

[2009] EWCA Crim 397

. Those cases provide us with assistance and we have considered the sentences in the light of the broad range of sentences which were upheld in those cases.

[29]Mr Balbir Singh, on behalf of Abuhamza, asks us to bear in mind that this was not a case of murder; that the judge said that he would give Abuhamza the benefit of a full discount for a guilty plea; and that in those circumstances the mathematics suggest that he would have taken a starting point of twenty-two years. He submits that that would have been an excessive sentence; the starting point therefore must have been wrong. He submits that it should be treated as excessive because it must lead to the conclusion that insufficient attention was paid to the evidence of diminution in the appellant's responsibility and the judge's finding that the appellant did not intend to kill or to cause Khyra really serious injury.

[30]Much the same submission was made by Mr Draycott on behalf of Ms Gordon. He suggested that her depression was significant. In reality, when Abuhamza came to live with her, the situation became too much for her and she was unable to cope when he ill-treated her children in the way that he did.

[31]It is worth emphasising that neither the beatings nor the cruel treatment and starvation from which they suffered began after the mental responsibility of either appellant was impaired. That finding was made by the judge. It is plain from the medical evidence when set against the known established facts. We, like the judge, underline it. This was not a case where the ill-treatment began consequent on the development of a substantial diminution in the responsibility of either appellant.

[32]The diminished responsibility in the case of Abuhamza has a very small bearing indeed on this case because its extent is that, within two weeks before Khyra died, he failed to comprehend that she was dying (and dying as a result of his own actions). In the case of Ms Gordon, her diminution was a little longer established, but still only a month before Khyra died. The six children had already endured substantial ill-treatment before either appellant's mental responsibility was significantly affected. Khyra's theft of food at school, eating scraps of food left out by the neighbour, the removal from school of three children who had special educational needs -- none of that occurred when there was any substantial diminution in the responsibility of either of the two appellants.

[33]Therefore we have to consider this diminution of responsibility in the most unusual context of sustained ill-treatment which began at a time when there was no real diminution in the responsibility of either appellant, but which became substantial at the end as part of the culmination of these events in the sad death of Khyra. As to the absence of the necessary intent for murder, we note, and accept in the light of the judge's finding, that the appellants fell to be dealt with only for manslaughter. Had this been a case of murder, the minimum sentences to be served would have been far higher.

[34]We have had our attention drawn to, and we have already mentioned, the disadvantages suffered by Abuhamza during the course of his own upbringing. He had been badly treated and he followed the example of the ill-treatment that he and his siblings had received from his father. In Ms Gordon's case that came later. She had been a "good enough mother" until she became involved with Abuhamza.

[35]We have looked at all the matters drawn to our attention and those which fell within the judge's assessment of the character of each of the appellants. There is no doubt that Abuhamza had a malign influence on Ms Gordon, but she was not a victim of ill-treatment by him. She did not fail to look after her children because she was threatened with ill-treatment. She took his side against them when they were desperate for her protection. She was their mother. She should have provided them with protection. She had no excuse for failing to do so. She should have put Abuhamza out of the house by the time Khyra was stealing food because she was starving.

[36]The judge also took account of the way in which events unfolded and eventually culminated in the guilty pleas which each appellant offered at different stages in the process. If we disagree at all with the judge, on the basis of the facts that we have described we are not sure the Abuhamza was entitled to a full discount for a guilty plea in accordance with the Sentencing Guidelines Council's definitive guideline. The guilty plea in the case of Abuhamza was not entered until a very late stage, towards the end of the second trial.

[37]This experienced, highly regarded High Court Judge dealt with this difficult and sensitive case with the care which we have noted. He had to face two simple facts which it is easy in the long narrative to overlook, and which, with no disrespect to them, counsel, who advanced the arguments as best they could, could not address. First, the ill-treatment of the children took two forms: one was deliberate starvation; the other was violent ill-treatment. The second feature which cannot be overlooked and which had to play a part in the sentencing decision was that the court was here dealing with ill-treatment of a most serious kind of five children, in addition to the ill-treatment and starvation which culminated in the manslaughter of a sixth child.

[38]Adding together all the features of the case, identifying those which cannot be avoided, and facing up to them as we must and as the judge did, we do not accept that the sentences imposed by him in the circumstances of this case were ones with which there is any proper basis for us to interfere.

[39]Accordingly, these appeals against sentence must be dismissed. _________________________________