Odegbune & Ors v R. [2013] EWCA Crim 711

[2013] EWCA Crim 711

Cases No: 201201909B5; 201202809B5;

201202840B5; 2012012958B5; 201202961B5;

201203017B5; 201203029B5;201203031B5

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CENTRAL CRIMINAL COURT

His Honour Judge Christopher Moss Q.C.

T20107210; T20207216

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 15/05/2013

Before

LORD JUSTICE LEVESON

MR JUSTICE FOSKETT

MR JUSTICE HICKINBOTTOM

Between

THE QUEENRespondent

Robert Marshall Andrews Q.C.and Amelia Foshene for Appellant Odegbune

Garry Green for Appellant Richards

Charles Sherrard Q.C. for Appellant Amoah

David Spens Q.C.and Polly Dyer for Applicant Akra

George Payne for Applicant Omeregie

Nicholas Corsellis for Applicant Oderinwale

Jerome Lynch Q.C. for Applicant Nwokeh

Benn Maguire for Applicant Roberts

Mark Heywood Q.C.and Julian Evans for Crown

Hearing Hearing date : 9 May 2013

Judgment

[1]At around 5.17 pm on Thursday 25 March 2010, Sofyen Belamouadden, a 15 year old schoolboy attending Henry Compton School in Fulham, was chased across Terminus Place at London Victoria Station by some twenty teenagers. He was caught at the top of the stairs to Victoria underground where he was attacked with bladed weapons, causing at least one cutting injury before he fell down the stairs into the ticket hall of the underground station. Whilst he was on the ground, a core group of those who had chased him ran down the stairs and effected a combined and lethal attack upon him. This included stabbing or cutting him with knives, kicking and punching him with force. The result was that Sofyen Belamouadden (to whom we shall now refer as the deceased) died.

[2]The case has presented the criminal justice system with very real challenges. In the event, at the Central Criminal Court, His Honour Judge Christopher Moss Q.C. conducted no fewer than five trials (which also encompassed re-trials following jury disagreement). In the first trial, on 16 May 2011, Christopher Omoregi (now 19) and Obi Nwokeh (now 20) were convicted of murder and conspiracy to cause grievous bodily harm; Adonis Junior Akra (now 19), Femi Oderinwale (now 19) and Samuel Junior Roberts (now 20) were convicted of manslaughter and conspiracy to cause grievous bodily harm; and Enoch Charles Amoah (now 20) was convicted of conspiracy to cause grievous bodily harm and violent disorder. In the second trial, on 11 August 2011, Samson Odegbune (now 19) was convicted of murder and conspiracy to cause grievous bodily harm; and Tyrone Richards (now 18) was convicted of conspiracy to cause grievous bodily harm and violent disorder. Richards was acquitted of murder upon the judge’s direction; Amoah, Akra, Oderinwale and Roberts had each been charged with murder, the jury returning convictions for the lesser offence of manslaughter.

[3]On 20 April 2012, the judge proceeded to sentence all offenders. Each of those convicted of murder (Omeregi, Nwokeh and Odegbune) was sentenced to be detained at Her Majesty’s pleasure with a minimum term specified of 18 years and concurrent terms of 8 years detention in a young offender institution for conspiracy. Those convicted of manslaughter (Akra, Oderinwale and Roberts) received sentences of 12 years detention in a young offender institution; Akra and Roberts were sentenced to concurrent terms of 7 years detention for conspiracy; Oderinwale received 8 years concurrent for the same offence. Finally, Amoah was sentenced to 7 years detention in a young offender institution for conspiracy with a concurrent term of 3 years for violent disorder; Richards similarly received 7 years detention (in his case under s. 91 of the Powers of Criminal Courts (Sentencing) Act 2000) with no separate penalty for violent disorder. In each case, time served was ordered to count. Odegbune, Amoah and Richards all appeal against sentence by leave of the single judge; Omeregi, Nwokeh, Akra, Oderinwale and Roberts all seek to renew their applications following refusal of leave.

[4]It is appropriate to mention the others charged in connection with this incident. In separate trials Victoria Osoteku and Junior Bayode were convicted of manslaughter. Osoteku was sentenced to 12 years in a young offender institution with a concurrent term of 8 years for conspiracy to cause grievous bodily harm; for reasons which are irrelevant to this application, Bayode has not yet been sentenced. Chris Goncalves, Tayo Emmanuel Ajayi and Amari Wood were convicted after a retrial of violent disorder and received 30 months, 30 months and 27 months respectively in a young offender institution; Lewis Ryan Sinclair, Olawale Olaribigbe, Selassie Ahiaku, and Melvin Mensah were sentenced to 2 years in a young offender institution following their guilty pleas to offences of violent disorder.

The Facts

[5]The background was the simmering tension between pupils at St Charles’ Catholic Sixth Form College (“the College group”) and their associates, and others, predominantly from Hammersmith and Fulham (“the West London group”). There is no suggestion that the College group were other than a collection of individuals attending the college. It was forcefully contended on their behalf, however that the West London group constituted a street gang, known as GFL, short for “Gangsters for Life” or, possibly, “Guns for Life”: it was said that they presented with a reputation for violence and confrontation.

[6]At some prior to 24 March 2010, there had been an incident at a party in relation to a girl between members of the two groups (in which Odegbune was involved). On 24 March 2010, members of the College saw two members of the West London group (Raheem Keane and Andre Willis) in the food hall at Victoria Station. There was a short confrontation the upshot of which was that Melvin Mensah (from the College) received a bloody nose: Keane and Willis (one of whom shouted a threat although not one which was heard by the College youths) ended up being arrested for a short while.

[7]Following this fight, there was clear evidence that the College group and the West London group envisaged another confrontation the following day: Mr Heywood described both sides as being involved in a pre-planned pitched encounter. Members of the College group communicated with one another using Facebook and mobile phones, as did the West London group. There was also communication between the groups, initially through intermediaries but eventually by contact (said by the Crown to be ‘leader to leader’) between Odegbune and Keane. Suffice to say, there was a considerable body of evidence showing the extent of such contact. It was said that the West London group would either be coming up to the College or would be at Victoria Station that afternoon. Once at college, on Thursday 25 March, the College group made more specific arrangements which amounted to a conspiracy to engage in an armed confrontation with the West London group later that day and to use weapons to cause grievous bodily harm. In the event, during the course of the day, the location for the planned encounter was confirmed as Victoria Station.

[8]The College group went to Victoria Station on 25 March on two buses, and arrived at the height of the rush hour and in broad daylight. Between them, they were heavily armed with an array of knives, including a set of kitchen knives specifically purchased for the purpose that afternoon. Although it was said that they had to pass through Victoria Station on their way home (whereas the West London group did not), the College group congregated and waited at the end of Terminus Place on the corner furthest away from where they would have alighted from their bus and then continued their journey. Many were in dark clothing with hoods or hats. Shortly thereafter, the West London group appeared at the opposite end of Terminus Place. That group were no doubt also ready and one was seen with his hands aloft saying “Come on”.

[9]That confrontation commenced with Odegbune leading a charge of all those who subsequently became defendants chasing the West London group through Terminus Place, with weapons displayed. Odegbune himself was brandishing a samurai sword in front of him. Thereafter, the College group split with Odegbune, Richards, Oderinwale and others chasing Andre Zaplatel (one of the victim group) through Terminus Place. The other sixteen defendants chased the deceased who was associated with the West London group. By this time, he was isolated. As he approached the entrance to the underground station, he tripped and fell over a kerb stone, and his pursuers caught up with him. As events subsequently proved, the deceased was unarmed: what he was seen to drop was his Oyster card. At the entrance to the underground, he was confronted, stabbed, and bundled down the stairs. Most of the sixteen followed him into the underground station where, at the bottom of the stairs, the attack continued.

[10]The attack in the underground lasted about twelve seconds and the deceased was left fatally wounded with no less than nine stab wounds to his body as his attackers from the College group made their escape. Most of them ran to a bus stop in Buckingham Palace Road where they boarded a C10 bus. When police officers boarded the bus at the next bus stop, amongst other weapons and potential weapons, they found two particular knives which it was later ascertained had been used to stab the deceased. One was in a bag that belonged to Omoregie, and the other was wrapped in a newspaper that bore Nwokeh’s fingerprints.

[11]It was the prosecution’s case that an agreement had been in place to cause really serious harm to one or more of the West London group and that all went to Victoria knowing this to be the case, and knowing that most were armed with knives or other weapons. All contemplated that those weapons might actually be used, at least to cause really serious harm and some may have intended to kill or maim if the opportunity arose.

[12]When passing sentence, the judge identified the part played by each defendant based upon the verdicts of the jury and his assessment of the facts in the light of those verdicts, prefacing his remarks with the observation that this dreadful series of events at Victoria Station had its roots in the confrontation that had taken place the previous day and had taken place in front of horrified commuters.

[13]Explaining the role of Odegbune, Omoregie and Nwokehconvicted of murderand conspiracy to commit grievous bodily harm, he said that, following the incident with Mensah, overnight and the following morning, there was communication between the groups in which Odegbune had played a principal role. He and the others involved expected trouble and he had made it clear that he had intended to come to college the next day armed with his samurai sword. Omoregie brought two chef’s steels to the college and others came with variety of weapons. The expected violence was the talk of the college on the Thursday morning and afternoon.

[14]As no member of the opposing group came to the college that day the defendant group all expected the confrontation to take place at Victoria Station as they made their way home. They all travelled to Victoria expecting and intending trouble and they were prepared for it. Odegbune had with him the sword and both Omoregie and Nwokeh were each armed with the knives that were later found on the C10 bus. Thus, the judge concluded that Odegbune was a principal organiser of the entire incident and both Omoregie and Nwokeh were principals in the attack upon the deceased that followed.

[15]Odegbune had led the charge against the west London group with his sword shouting, “We’re going to fuck you up”. Although he was not part of the group that attacked and killed the deceased (having chased Andre Zaplatel), he was convicted of murder on the basis that he had intended that in the course of his attack on the opposing group someone should be killed or caused really serious bodily harm, or that he realised that such might be the consequence but nevertheless took part in the violence. The judge said that nobody who had seen the CCTV of the killing could possibly conclude that this was other than a ferocious and merciless attack upon the deceased and that there was any less than an intention to kill him.

[16]As for their antecedents, Odegbune had three minor convictions for which he had been placed on an action plan for three months, fined and made the subject of a two week curfew. A pre-sentence report noted his supportive family, his five GCSEs and the absence of evidence of any link to gangs. It was reported that he expressed remorse. He was considered as presenting a high risk to the public particularly towards young men of a similar age where a threat or injustice was detected. Omeregie and Nwokeh were both of previous good character. Omeregie had a supportive family and 9 GCSE passes all at grades A and B: he was studying for A levels. He was assessed as presenting a medium risk. Nwokeh had 6 GCSEs but revealed serious deficits in thinking and cognitive reasoning; he continued to deny guilt. There were positive aspects to their behaviour while in custody.

[17]For the crime of murder, the sentence was fixed by law and, as Odegbune and Omoregie had both been 16 and Nwokeh had been 17 at the date of the offence, the starting point for setting the minimum term of the indeterminate sentence was 12 years for each. The judge identified a number of aggravating factors. The first was the level of planning and premeditation. Second, they had gathered together for the purpose of serious mass violence in a busy public place at the height of the rush hour when they must have anticipated many innocent members of the public would be going about their lawful business. Third, they acted in a large group and the deceased was attacked by at least eight persons. Fourth, they carried and used weapons. Fifth, his assessment was that none of them had shown any kind of remorse nor had they acknowledged responsibility for the crime. It was in those circumstances that the minimum term was fixed at 18 years for each.

[18]In relation to Oderinwale, Roberts and Akrawho had been convicted of manslaughter and conspiracy to commit grievous bodily harm, the judge carefully analysed the evidence and expressed the basis for his sentence. He concluded that Roberts had kicked the deceased three times as he lay helpless upon the floor. His actions had been vicious and he had kicked the deceased’s head with horrifying ferocity. Akra had admitted striking the deceased upon the neck with a chef’s steel that he had obtained from Omoregie. Both Roberts and Akra stood convicted on the basis that they knew that at least one of their group was armed with a knife or other bladed weapon and that they foresaw that such a weapon might be used to cause some harm, albeit less that grievous bodily harm.

[19]Oderinwale had not been present at the scene of the attack but he had acted as armourer. He had been responsible for the purchase of a block of kitchen knives from Argos in Shepherds Bush in the early afternoon of 25 March. Some of those knives were used to kill the deceased. He was convicted on the basis that he had intentionally purchased, or assisted in the purchase, or distributed or assisted in the distribution of the knives realising that some harm, albeit short of grievous bodily harm, might be caused to another by the use of those knives or any of them.

[20]Oderinwale had also taken a principal part in the communications on Facebook and texting to set up the confrontation and thereby helped to initiate the conspiracy. There was no doubt that Roberts, Akra and Oderinwale had travelled to Victoria expecting the sort of violent confrontation, which in fact took place, and they were prepared to play their part in it. Oderinwale pursued members of the opposing group across Terminus Place and Akra and Roberts, joined the group of killers who set upon the deceased.

[21]Oderinwale had been an early member of the conspiracy. The judge accepted that Akra and Roberts had probably joined it later but, in relation to the offence of manslaughter, he concluded that there was no nothing to distinguish between them for sentencing purposes.

[22]All three of these young men were of good character with positive achievements. Oderinwale came from a supportive family and had 11 GCSEs at grates A to C; he was studying for A levels. Akra, with a supportive family and 9 GCSEs was also studying for A levels; there were four character references from his headmistress, two teachers and a teaching assistant. Roberts had 9 GCSEs and was in the first year of his A level course; he said his involvement had been spontaneous and impulsive, expressing sorrow for what he had done.

[23]In sentencing them the judge indicated that he had taken into account all these positive features, along with the way they had conducted themselves whilst in custody. Again a mitigating factor was their youth, at the time of the offences Oderinwale and Akra had been 16 and Roberts had been 17. In the circumstances, for the headline offence of manslaughter, they received determinate sentences of 12 years in a young offender institution.

[24]Turning to Amoah and Richards, both had been convicted of conspiracy to commit grievous bodily harm and violent disorder and, significantly, acquitted of any criminal complicity in the death of the deceased. Neither of them appeared to have become involved in the conspiracy until the 25 March 2010. Although Amoah had not been armed, once he arrived at Victoria station he joined the agreement hatched by others to cause grievous bodily harm to any one of the opposing group. He had joined the charge across the bus lanes of Terminus Place thereby placing many innocent members of the public in fear of violence.

[25]Amoah attended with his fellow students from St Charles’ College whereas Richards (the youngest of the group and still at secondary school) had come to Victoria Station at the behest of Odegbune who, although of similar age, was his uncle (looked upon by him as a brother): his case was that he was concerned for Odegbune’s welfare. He was seen to join the eventual charge across Terminus Place with something in his hand; the judge, however, concluded that it could not be safely determined that this had been a knife.

[26]Once again, both Amoah and Richards were of previous good character. In neither case was there evidence of any links to gangs. Amoah was from a supportive family and had 11 GCSEs; he was found to have poor assertive skills, impulsivity and limited knowledge of problem solving skills. He expressed remorse. Roberts lived with his mother and two younger brothers and was described as bright but under-achieving due to behavioural problems. The writer of the pre-sentence report concluded that his age and standing with his peers led him to be present at the scene.

[27]In each of their cases account was taken by the judge of their pre-sentence reports. With regard to Richards the offence was, he said, too serious to justify the imposition of a detention and training order; for the more serious offence of conspiracy to cause grievous bodily harm, each was sentenced to 7 years. In the case of Amoah, this was in a young offender institution; for Roberts it consisted of detention under Section 91 of the Act of 2000.

The Relevant Principles

[28]As is well known, the sentence for murder is prescribed by law and is indeterminate (although expressed differently for offenders aged above 21, those between 18 and 21 and those under 18). In each case, however, Schedule 21 of the Criminal Justice Act 2003 prescribes the approach to the determination of the minimum term which, linked to the age of the offender, is ‘appropriate’ to the seriousness of the offence. For adults above 21, the Act most grave offences of murder, described as having exceptionally high seriousness (e.g. the murder of a child which involved abduction or sexual or sadistic motivation) attract a starting point of ‘whole life’; if an offender is over 18, where the seriousness of the offence is particularly high (e.g. murder that is racially aggravated), the starting point is 30 years. In other cases, for those over 18, the starting point was 15 years.

[29]In relation to a murder committed after 2 March 2010 (when para. 5A of Schedule 21 came into force: see Criminal Justice Act 2003 (Mandatory Life Sentence: Determination of Minimum Term) Order 2010 SI 2010 No 197), the starting point for those over 18 became 25 years where an offender used a knife or other weapon to commit the murder having it to the scene intending to commit any offence or have it available to use as a weapon. Assuming no other features took the case into the particularly or exceptionally high category, the starting point had previously been 15 years, although the planned use of a knife or other weapon would, in any event, have been an aggravating factor thereby increasing the ultimate sentence: see M

[2010] 2 Cr App R (S) 117

[30]The effect of this amendment of the law is twofold. First, it identifies a legislative intention to increase the minimum term imposed as part of the life sentence for murder committed with a knife or other weapon taken to the scene. It follows that, being faithful to the statutory framework, such sentences must now reflect the change of law; with the consequence that citation of reported decisions of sentences for similar offences committed prior to 2 March 2010 is unlikely to be helpful. Secondly, in order to preserve consistency of approach to sentencing across the range of offences, that change in respect of sentences for murder inevitably has an impact on lesser offences of violence committed with a knife or similar weapon: we return to this feature when considering sentences for manslaughter.

[31]With regard to the operation of the Schedule, it might appear to suggest that sentences upon those over 18 are stepped with minimum starting points at 15 years, 30 years and whole life. In reality, however, these steps merely provide the architecture or framework within which the judge must exercise discretion moving upwards or downwards depending on his or her assessment of the seriousness of the offence then being considered along with the aggravating or mitigating features. The result could be described not as a series of steps but, rather, as fixed points on a continuum which allows for an approach which is consistent with the legislative intent, but which allows the sentencing judge an appropriate discretion to balance the various features of the case in order to achieve a just result.

[32]In respect of those under the age of 18, similar principles apply. Paragraph 7 of Schedule 21 provides:

“If the offender was aged under 18 when he committed the offence, the appropriate starting point, in determining the minimum term, is 12 years.”

[33]In Attorney General’s Reference No 126 of 206 (H)

[2007] EWCA Crim 53

[2007] 2 Cr App R (S) 59

page 362, Lord Judge CJ recognised that, even for those under 18, the appropriate sentence remained fact specific and had to be assessed having regard to features that, in an adult, would have moved the starting point to a higher level. He said (at para. 33) “It is trite law but occasionally worth reminding ourselves that irrespective of the ‘starting point’, the end result may be a minimum sentence of ‘any length’, when appropriate, well below or well above the defined starting point. The court must take account of every aggravating and mitigating feature, with specific reference to those which are expressly identified in paras. 10 and 11 of the schedule. These lists are not exhaustive. In particular, we should emphasise that when the court is dealing with an offender aged under 18 years the provisions of para. 7 do not preclude the sentencer from reflecting on all the express features of the crime of murder identified in para. 4 and 5 of the schedule, and when they are found to be present from treating them as features which aggravate the offence.”

[34]As to the impact of para. 5A, in R v Moore

[2010] EWCA Crim 2197

[2011] Cr App R (S) 94

, page 561, it was argued that Parliament had left the starting point for those under 18 unchanged when raising it for those over 18 and must, therefore, have intended no change. In upholding a 17 year minimum term for a gang related murder (and additional wounding with intent) imposed on an offender who had pleaded guilty and was 16 at the time of the offences, Gross LJ observed that the court could “readily understand” why Parliament had not altered para. 7 of Schedule 21 observing that it had been “left to the discretion of the judge to deal with as is just on the facts of the particular case”.

[35]We go further. It is well recognised, within the authorities, that those features which increase the starting point for offenders over 18 are, indeed, highly relevant as aggravating features when considering those under 18. We would emphatically endorse that principle. It is absurd to suggest, for example, that sexual motivation (which would increase the starting point in an offender over 18 from 15 to 30 years) should not be taken into account when sentencing those under 18. The same is so in relation to the use of weapons, taken to the scene and intended for use as para. 5A prescribes. Once again, however, being more prescriptive would undermine the ultimate aim of the legislation because the sentencing approach to a 12 year old convicted of murder will be very different to the approach to a 17 year old.

[36]It is next appropriate to turn to the offence of manslaughter. The starting point must be s. 143(1) of the 2003 Act which focuses on the very real significance of the consequences of an offence. It provides:

“In considering the seriousness of any offence, the court must consider the offender’s culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused.”

[37]As Lord Judge CJ said in R v Appleby

[2010] 2 Cr App R (S) 46

[2009] EWCA Crim 2693

(at para. 15), in relation to manslaughter, “the culpability may be relatively low, but the harm caused is always at the highest level”. Lord Judge observed that reference to older authorities was no longer helpful and commented (at para. 22):

“[N]one of the decisions we have seen ... has proceeded on the basis which we have now addressed, that crimes which result in death should be treated more seriously, not so as to equate the sentencing in unlawful act manslaughter with sentences suggested in Schedule 21 to the 2003 Act, but so as to ensure that the increased focus on the fact that a victim has died in consequence of an unlawful act of violence, even where the conviction is for manslaughter, should, in accordance with the legislative intention, be given greater weight.”

[38]For the purposes of this appeal, it is necessary only to refer to cases involving the use of a weapon which, on any showing, is a seriously aggravating feature, particularly where (as here) there has been preparation and planning along with willingness to risk (even without intending to cause) serious bodily injury.

[39]An example of such a case without the planning (and involving a weapon albeit not a knife) was R v Preddie and Preddie

[2007] EWCA Crim 1962

, decided before Appleby and thus without the guidance there set out. Sentences of 8 years detention after convictions for manslaughter were upheld on two brothers aged 12 and 13 at the time of the killing (that is to say, markedly younger than the applicants in this case). They had confronted a 10 year old boy who was fatally stabbed in the leg with a broken beer bottle shard. Contrary to the facts of the present case, it is important to underline that the judge accepted the availability of the weapon was fortuitous: the bottle was already broken at the scene before the incident and not by anyone involved.

[40]The violence in Preddie was said to be bullying street violence even if there was no further underlying motive. Furthermore, the victim was left to die in circumstances when it must have been apparent that he had suffered serious injury. The main mitigating factor was the very young age of the Preddie brothers at the time of the incident, causing Latham LJ to observe (at para. 10):

“In the present context, we accept that we must approach it in the first instance by looking at the ages of these two appellants at the time of the offence. But it seems to us that we must and should reflect in our considerations the extent to which courts in these cases need to impose sentences which have a significant element of deterrence. There is no other way at the moment that the court can reflect the need to ensure the streets of this country are as safe as possible.”

[41]Those words apply equally to this case where the aggravating features are more serious. As to the harm caused, as the Lord Chief Justice observed, it is at the highest level. Culpability in this case is also high. In R v AM, Kika and Saddique

[2009] EWCA Crim 2544

, Lord Judge CJ observed (at para. 9) that:

“… anyone who goes into a public place armed with a knife or any other weapon and uses it to kill or to cause injury, and who is brought to justice, must anticipate condign punishment.”

[42]The deceased was attacked with knives, brought to the scene by a large group of teenagers who, at one stage, entered a conspiracy to cause really serious bodily injury even if, in the event, the jury were not sure (in the case of those convicted of manslaughter) that they intended or foresaw such harm actually being inflicted.

[43]Counsel have referred to a number of decisions in support of submissions that the sentences imposed for the homicide offences were manifestly excessive although, in our judgment, a historical analysis – even before the change in the law – does not support such a proposition. In R v Carter

[2008] EWCA Crim 707

, a sentence of 10 years was upheld for manslaughter when a knife was used in a fight, the court rejecting (at para. 26) the proposition that there was a necessary distinction between cases where the verdict of manslaughter is based on provocation, unreasonable force going beyond self-defence or lack of intent to cause serious bodily harm. Reference was then made to the observations in R v Latham

[1997] 2 Cr App R (S) 10

, which concerned provocation manslaughter and three counts of wounding with intent (following a fight in a night club during which the offender produced and used a knife), when Kennedy LJ said:

“Even when a particular type of manslaughter is isolated from the rest it has to be recognised that it covers a wide field and if justice is to be done sentencers must not be put in straitjackets, but ... it seems to us that where an offender deliberately goes out with a knife, carrying it as a weapon, and uses it to cause death, even if there is provocation, he should expect to receive on conviction in a contested case a sentence in the region of 10-12 years.”

[44]R v Bishop

[2011] EWCA 1225

is another case where this court declined to interfere with a 12 year sentence for manslaughter based on lack of intent imposed on a 26 year old of good character who stabbed the former partner (and father of the child) of his then partner following ongoing domestic difficulties. The circumstances were very different and although the court made reference to the need for appropriate sentences in knife crime, the offence was committed well before the change brought about by para. 5A of Schedule 21.

[45]The high water mark of the submissions is to be found in R v Yemoh & ors

[2009] EWCA Crim 1775

. Although, again, obviously before the change of law (the offence having been committed in March 2007), it has certain factual similarities to this case. Two boys of 13 and 15 were convicted of the murder of a 16 year old boy; three other boys who were 13, 14 and 16 at the time of the killing, were convicted of manslaughter. The victim had been lured into a residential street for a one-on-one fight when he was set upon, threatened with a Stanley knife and stabbed with a knife or sharp implement. The judge spoke of a “gang culture which casts its dreadful influence over so much of the youth of our inner cities”. He sentenced those convicted of murder (one of whom was of prior good character) to detention during Her Majesty’s pleasure with minimum terms of 15 years. The three convicted of manslaughter (the 14 and 16 year olds with previous convictions including robbery or attempted robbery), received extended sentences 15 years with custodial terms of 10 years and extended licence of 5 years.

[46]This court concluded that the finding of premeditation of the type to which Schedule 21 refers was not made out but noted the aggravating features of the prolonged chase and attack, the possession of two knives and other weapons and the fact that “these events took place in broad daylight in a residential street, to the horror of people going about their business”. A further aggravating feature for the 13 year old convicted of murder and two of those convicted of manslaughter had been involved in an earlier incident a month before involving a different youth. The mitigation included the extreme youth of the offenders and the fact that the intention was to cause serious harm only (rather than to kill).

[47]In the event, because of the different finding in relation to premeditation and giving due weight to the ages of the offenders, from the starting point of 12 years, increased to 15 years, the minimum term of those convicted of murder was reduced to 13 years. The sentences on the two convicted of manslaughter (involved in the previous incident) were reduced to extended terms of 13 years (of which 9 years was the custodial term and 4 years the extended licence) and the 13 year old of prior good character not involved in the earlier incident had his sentence reduced to an extended term of 11 years (being a custodial term of 8 years and an extended licence of 3 years).

[48]For our part, although we understand the parallels to which reference has been made, we do not consider that this decision governs (or necessarily impacts upon) this case and we were not surprised that Mr David Spens Q.C. (who had been one of those who had referred to this decision in the appeal documentation) disavowed reliance on it. The differences are obvious. This court specifically rejected the aggravating feature of premeditation and the offenders were very much younger: the younger the offender, necessarily, the greater the potential for a reduced assessment of culpability. Further, this decision did not take account of parliamentary intention to increase the sentences on those who participate in taking weapons to a scene and using them to kill.

[49]In relation to the offence of conspiracy to cause grievous bodily harm, the guideline issued by the Sentencing Council deals with non-fatal offences of violence and applies to all offenders aged 18 or over sentenced on or after 13 June 2011 (i.e. to each of these offenders save for Richards). It does not specifically deal with inchoate offences, but it is obviously relevant to examine the approach to sentencing the complete offence when dealing with attempts and conspiracy to commit that offence. The guideline is sufficiently flexible and capable of adjustment to reflect the differing circumstances and ensure consistency of approach.

[50]For those who were not convicted of murder or manslaughter, it is of critical importance to approach the issue of sentence without incorporating the fact of death into a conspiracy which carries with it an intention to cause really serious injury. For those who did not inflict the stabbing injury, the jury were directed to convict of manslaughter if sure that they were party to a joint enterprise to cause unlawful violence, knew that at least one of the attackers had a knife or other bladed instrument and knew that the attacker might use it to stab the victim intending to cause some injury or harm, but falling short of killing or causing really serious harm.

[51]Thus, the only proper interpretation of the verdicts of the jury in relation to those acquitted of murder and manslaughter but convicted of conspiracy to cause grievous bodily harm is that the jury was sure of participation in an agreement to inflict grievous bodily harm on the opposing group in Victoria Station, they were not sure either that at least one of the attackers had a knife or other bladed instrument or, alternatively, did not realise that an attacker with a knife would or might use it to stab with intent to cause any injury.

[52]It goes without saying that for these offenders, the fatal injuries cannot be taken into account and the case must be considered on the basis of intended injury only; aggravating features could involve use of some sort of weapon (such as a shod foot) but not a knife. The useful parallel, therefore (which could be no more than that) could be with category 2; the starting point would be 6 years custody and the category range of 5 to 9 years. Aggravating and mitigating factors would then fall to be considered in the usual way. The Individual Appeals and Applications Christopher Omeregi and Obi Nwokeh

The Individual Appeals and Applications

[53]We deal first with those convicted of murder. Mr George Payne for Omoregie and Mr Jerome Lynch Q.C. for Nwokeh argue that the learned judge erred in concluding that there was an intention to kill, as opposed to an intention to cause grievous bodily harm. They argued that this interpretation of events did not accord with the verdicts of the jury. Of the 8 youths in the ticket hall, said to be acting as one group, only 2 were convicted of murder and the others of manslaughter. It must be concluded therefore, that the jury did not conclude that there was a group intention to kill.

[54]It was the case for the prosecution that Omoregie and Nwokeh had themselves attacked the deceased with knives and it was contended that, having regard to the acts recorded on CCTV along with the nature and location of the injuries described by the pathologist, the intention could only have been to kill. The judge was of the same view and expressed described the attack as “ferocious and merciless”, a view we share having seen for ourselves the CCTV images. He conducted the trial and was in the best position to make his assessment, consistent with the verdicts of the jury, of the intentions of each offender and he was entitled to do so. We have dealt with the further argument raised by Mr Jerome Lynch Q.C. on behalf of Nwokeh relating to Yemoh above.

[55]Although we recognise that for these young men, the sentences imposed may appear to them to be overwhelming in length, the need to punish and deter others made them inevitable. From a starting point of 12 years, these offences were seriously aggravated not only by the planning and premeditation for mass violence in public at the height of the rush hour but also the participation as one of a large group involved in attacking the deceased with weapons brought for the purpose and so effectively used. Youth was encompassed by the reduced starting point (which would otherwise have been 25 years) and the mitigation and positive aspects of these applicants’ characters were recognised. The sentences were neither wrong in principle nor manifestly excessive: these applications are refused. Samson Odegbune

[56]The appeal of Odegbune in relation to his sentence for murder raises slightly different issues. First, Mr Robert Marshall Andrews Q.C. argues that the only feature aggravating the offence above the starting point of 12 years was the degree of pre-planning but that this had to be seen in the light of the serious, acknowledged and accepted threats by the aggressive group described as GFL (including the suggestion of a gun possibly being available) whereas there is no reference to these crucial elements in the sentencing remarks. It is, however, clear that, following the verdicts of the jury, the judge rejected any element of self defence but concluded that this was a planned confrontation. In any event, this was not the only feature aggravating the offence: as we have analysed the principles involved, the use of weapons brought to the scene very seriously aggravates the offence above the starting point prescribed in the legislation.

[57]He also submits that in asserting that Odegbune, along with the others convicted of murder, showed no remorse, the judge ignored the statement to that effect in the pre-sentence report: the judge had, of course, been able to observe this appellant throughout the very lengthy trial: he was not bound by the view of the probation officer after conviction. As for his academic success and progress, he said in terms that he had taken account of all that had been advanced on behalf of the appellant “and the positive aspects of your conduct while in custody”.

[58]In our judgment, Mr Marshall Andrews’ strongest point concerned the basis upon which Odegbune was sentenced, namely, the intention to kill attributed to the primary participants to the violent stabbing. Whatever steps he had taken to organise and orchestrate the violent confrontation, it is argued that he had taken no actual part in any violence aimed at the deceased but had led a different contingent (albeit brandishing a samurai sword and shouting, as the judge found, “We’re going to fuck you up”), inflicting no injury at all. The jury clearly (and, by dismissing the application for leave to appeal against conviction, we have concluded safely) found that his role as the leader of the conspiracy also encompassed his intention or foresight that one or more of the conspirators would use a knife or knives to kill or cause really serious injury. Although it created no inconsistency of verdict, however, we accept that there was not the same material in his case (compared to the cases of those who engaged directly in the attack) to justify concluding that he had an intention to kill.

[59]We agree with Mr Marshall Andrews that it is appropriate to read the sentencing remarks in that way. Having said that, however, had the judge concluded that the extent of Odegnune’s responsibility for the entire incident through the leadership which he had shown in its organisation and in leading the charge meant that, even though he had not been part of the murderous attack, his responsibility was the same as those killing with intention to kill, the court might well have taken the view that the conclusion was not one with which it ought to interfere. He did not, however, say that. On the basis that he could not attribute to Odegbune an intention to kill, recognising that the conviction for murder was clearly a consequence of his leadership role, it is important that there is no double counting.

[60]In the circumstances, we have come to the conclusion that the judge should have differentiated slightly between those who carried knives to the scene and, with the intention to kill, no doubt formed in the heat of the moment, caused death; and that of Odegbune who might have played a far greater role in the organisation of the confrontation but in respect of whom it cannot be said that he intended death, however great the risk of that outcome. In the circumstances, the minimum term in his case is reduced by 2 years to 16 years.

Adonis Junior Akra

[61]Turning to those convicted of manslaughter, on behalf of Akra, Mr David Spens Q.C. submits that the starting point for the murderers was too high and thus those convicted of manslaughter should similarly have their sentences reviewed. We have considered the principles in the analysis above and have no doubt that, as the law presently stands, it was not. Similarly, the general approach to the manslaughter sentences (bearing in mind the harm and the impact of the approach to homicide) cannot be faulted.

[62]He also submitted that the judge had failed to reflect the different roles played by each of those convicted of manslaughter, suggesting that Akra’s role was no more serious than that of Oderinwale or Roberts but clearly less serious than that of Osoteku, an 18 year old girl who had played a key role in arming the murderers and delivered the final kick to the deceased.

[63]Responding to the Grounds of Appeal, the single

judge put it this way:

“This was a group conspiracy and a group action. Although there were differences in the precise role and involvement of different defendants the Judge was entitled to take view that a consistent approach should be adopted with the same sentences being imposed for similar offending. Further, any differences which could be argued for in relation to the applicant would not render his sentence manifestly excessive either in itself or when compared to that of others. The applicant was one of the group of killers, was armed and struck the victim. ... Further, given the public nature of the offending, a fatal, mass charge and attack with the brandishing and use of knives taking place at Victoria station during rush hour, the Judge would have been justified in including a deterrent element in his sentencing.”

[64]We agree with these remarks. The need for a deterrent sentence is undeniable and, even making every allowance for the antecedents, background and references which this applicant has amassed (and paying tribute to the very positive aspects of his character which we have no doubt will serve him well in the future), in the light of all the circumstances, it is impossible to say that the sentence imposed was wrong in principle or manifestly excessive. This application is refused.

Femi Oderinwale

[65]Mr Corsellis for Oderinwale argues that the sentences imposed for murder were arguably manifestly excessive so that the sentences for manslaughter ought to be adjusted: we have rejected the premise and this argument falls. He also submits that the starting point for manslaughter was too high and failed to reflect the role Oderinwale played. In addition to the authorities set out above, he also cites R v Bishop

[2011] EWCA Crim 1225

but that decision is not, as he submits, authority approving Carter. Carter was cited but the decision of the court (per Davis J as he then was) was simply that the sentence imposed in the case under appeal (12 years) could not be challenged. In any event, that killing took place before the change in the law.

[66]It is also argued that the judge failed to take account of the genuine fear of attack (dealt with above) or the fact that a plea to manslaughter had been offered. This last is no mitigation unless the plea is openly tendered in court and before the jury, which this was not. To suggest that such would be unrealistic where the defence being run was lack of knowledge of weapons, lack of specific intent to injure and chasing his perceived attackers away is to underline that no admission was, in fact, being made to the crime of manslaughter. The delay following conviction (before the judge could deal with all the offenders in one sentencing hearing) was a regrettable consequence of the nature of the crime: it does not justify a reduction in sentence.

[67]Finally, Mr Corsellis recognised that the 8 year sentence for conspiracy to cause grievous bodily harm was fully merited, but that the fact that his role came to an end before the events at Victoria Station should have led to a lesser sentence for manslaughter. We do not agree. The sentence for conspiracy did not reflect the fact that the knives he acquired were used in the subsequent attack and that fatal injury resulted. In his case, that fact was a necessary ingredient to be recognised in the ultimate sentence for manslaughter.

[68]Once again, we agree with the remarks of the single

judge when he refused this application, expressed in these terms:

“The applicant played a key role in the conspiracy and helped initiate it. He took a principal part in the communications the previous evening which involved getting “tooled up” and contemplated their adversaries getting “slumped” (killed). He then acted as armourer for the group. He was responsible for the purchase of kitchen knives from Argos, some of which were used to kill the victim. Although there was a responsive element to the conspiracy the Judge found that the group travelled to Victoria expecting and intending trouble and prepared and armed for it. Even if the jury’s manslaughter verdict indicates a subsequent intent to cause lesser injury, death was a foreseeable and actual consequence of the conspiracy of which the applicant was convicted. The applicant was part of the mass charge across Terminus Place although he did not join in the attack on the victim. He was pursuing others. He was convicted on the basis that he intentionally purchased or assisted in the purchase of knives, or distributed or assisted in the distribution of those knives, realising that some harm might result.”

Samuel Junior Roberts

[69]On behalf of Roberts, Mr Benn Maguire also submits that the judge failed to distinguish between the parts played by those convicted of manslaughter. Roberts had played no part in the planning, joined the conspiracy on the spur of the moment and did not have a weapon.

[70]On the other hand, Roberts was convicted on the basis that he knew that at least one of the group was armed with a knife or other bladed weapon and foresaw it might be used to cause some harm. Second, although not using a knife (which would doubtless have led to a conviction for murder), he utilised another weapon, namely his shod foot. In that regard, it is worth repeating the observations of the learned judge. He said:

“No one who has seen the CCTV images of the scene could fail to be horrified by the ferocity of one of the kicks you delivered to the head of the deceased - it was if you were kicking a rugby football. Your action were vicious and victim, defenceless.”

[71]The single judge repeated the observations about group conspiracy and group action that he had made in relation to the application by Akra, observing that Roberts was one of a group of killers who viciously and repeatedly kicked the victim. The trial judge specifically said that he had reflected his youth, his antecedents and his behaviour in custody. In our judgment, this deterrent sentence is not arguably wrong in principle or manifestly excessive and this application is refused.

Tyrone Richards and Enoch Charles Amoah

[72]These cases can be considered together. In both cases, each appellant was acquitted of any involvement in the homicide but convicted of conspiracy to commit grievous bodily harm and violent disorder. The distinguishing feature in their cases was that each had joined the conspiracy hatched by others only at Victoria Station; they then joined in the mass, armed charge across Terminus Place which placed so many members of the public in fear but they were neither armed nor part of the attack on the victim (although Richards had some article in his hand the nature of which the judge expressed himself as unable to determine).

[73]The first ground of appeal is that the judge passed the same sentence for conspiracy on these appellants as he had on most of those convicted of homicide offences. This ignores the fact that these were all concurrent terms to longer sentences, but the point is fairly made that the judge failed to distinguish between their parts and that played by the other offenders.

[74]For Richards, Mr Garry Green argues that, given the offences of which he had been convicted, more attention could be paid to the fact that he was the youngest of the group, whose involvement was expressed to assist his uncle (Odegbune); he was of good character and positive antecedents. Furthermore, he remained under 18 and sentencing principles required consideration for his welfare and the aim of reducing offending. For Amoah, Mr Charles Sherrard Q.C. submits that this was more of a notional conspiracy than involvement by physically playing a role which assisted others: it was critical to have regard to precisely what he did which was to join in as he got off the bus, run the 200-300 yards and then leave (without going down the steps into the station).

[75]Mr Sherrard referred to R v Thomas & others

[2010] EWCA Crim 148

in which extended sentences of 8 years (comprising custodial terms of 4 years with extended licences of 4 years) were passed on two offenders in circumstances which he contended were more serious than these. We derive no assistance from the case which is no more than an example of a sentence passed at first instance: those offenders did not appeal this sentence for conspiracy to cause grievous bodily harm but only the concurrent identical (and unlawful) term for violent disorder. It has no authoritative value whatsoever and, in any event, was prior to the issue of guidance by the Sentencing Council intended to reflect an increase in sentences for the most serious non-fatal offences of violence, namely causing grievous bodily harm with intent and wounding with intent consequent upon the increased seriousness that Parliament had accorded to murder and, thus, homicide generally (as demonstrated by the cases to which we have referred).

[76]Using the guideline analogously, however, we see force in the submission that for this offence of conspiracy, by these appellants, with the more limited involvement identified by the judge, a different approach was justified from that adopted for those convicted of homicide, especially in the case of Richards. In our judgment, the sentences imposed did not adequately reflect this very different position which, bearing in mind their youth, good character and positive reports did not need to be as long as 7 years. Although we can see an argument for distinguishing between the two because of their different ages, in the end, we have felt it appropriate to defer to the view of the trial judge (who, we repeat, had the opportunity of assessing each offender over the weeks of the trial) and have decided not to do so.

[77]Although the limited role that Amoah and Richards played must be reflected in the sentence imposed, any participation in public violence of this nature, involving an intention to cause really serious harm, must inevitably be treated very seriously. In the circumstances, we quash the sentences of 7 years respectively of detention and in a young offender institution and impose sentences of 5½ years in their place.

Conclusion

[78]The judge had a very difficult sentencing exercise to perform and nothing we have said should be taken as critical of the attention to which he paid to it; we also pay tribute to the careful analysis provided by the single judge. Standing back and reviewing the approach against the backdrop of the entire case and in the light of the arguments now advanced, we have come to the conclusion that the appeal of Odegbune should be allowed: the sentence of detention at Her Majesty’s pleasure remains but the minimum term which he must serve is reduced from 18 years to 16years simply on the basis that, although his leading role must be underlined (and doubtless led to his conviction for murder), the finding of a specific intention to kill in his case cannot be sustained. It is important to repeat that the passage of this period will not necessarily mean his release: he will only be released when the parole board consider that he does not represent a risk to the public and it is safe to do so.

[79]The appeals of Richards and Amoah will similarly be allowed: the periods of 7 years detention under s. 91 of the 2000 Act (in relation to Richards) and in a young offender institution (in relation to Amoah) are quashed and periods of 5½ years detention substituted.

[80]No other adjustment to the sentences is appropriate; the remaining renewed applications for leave to appeal against sentence are refused.

[81]We cannot leave this case without commenting on the devastation that this terrible incident has caused to so many lives. At the top of the list, by far, is the fact that a 15 year old schoolboy, Sofyen Belamouadden, lost his life and all that it held for him. We have read the impact statements that his parents have provided and we have no doubt that they, their remaining children and their wider family and friends have suffered enormously from the devastation of his death: this loss will scar the family’s lives forever.

[82]Albeit entirely self inflicted, it is also worth pointing out that a dozen or so young people of prior good character with academic achievement and promise have also blighted their own lives and impacted on the lives of those who have been supportive of them. The account of this case should be told and repeated to young people everywhere: knives kill people and the effect of the madness of a few hours – or of a moment – will ripple out and destroy or devastate many lives. That is why the courts will and must always place punishment and deterrence at the forefront of any sentencing decision is cases such as these.