Attorney Generals Reference Nos 4, 5, 6, 7 And 8 of 2014 [2014] EWCA Crim 651

[2014] EWCA Crim 651Case No 201400345/A5-201400347/A5-201400349/A5-201400350/A5-201400352/A5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 13th March 2014
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE DAVIS
MR JUSTICE JEREMY BAKER
RECORDER OF STAFFORD
(HIS HONOUR JUDGE TONKING)
(Sitting as a Judge of the CACD)
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL'S REFERENCE NOS 4, 5, 6, 7 and 8 OF 2014
(NATHAN DEACON
TAFARI DEACON
DURRELL KUMAR
JOSIAH WILSON
TIMOTHY DAWSON)
Computer Aided Transcript of the Stenograph Notes of
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(Official Shorthand Writers to the Court)
Mr S Denison QC appeared on behalf of the Attorney General
Mr T Stevens appeared on behalf of the Offender N Deacon
Mr R Furlong appeared on behalf of the Offender T Dawson
Mr T Nicholson-Pratt appeared on behalf of the Offender Wilson
Mr S Crouch appeared on behalf of the Offender Kumar
Mr M Goudie appeared on behalf of the Offender T Deacon
J U D G M E N T

LORD JUSTICE DAVIS:

These

[1]are applications by the Attorney-General for leave to refer sentences which he regards as unduly lenient. We grant leave.[2]The sentences in question were imposed after the defendants had variously been convicted of offences of conspiracy to possess a firearm and, in some cases ammunition also, with intent to endanger life or to enable another to endanger life. There is a gangland context.[3]The defendants were Nathan Deacon, aged 24 at the time of the offending; his brother Tafari Deacon, aged 26 at the time of the offending; Durrell Kumar, aged 22 at the time of the offending; Josiah Wilson, aged 19 at the time of the offending; and Timothy Dawson, aged 18 at the time of the offending.[4]On 8th November 2013 Nathan Deacon and Tafari Deacon and Kumar were convicted after a lengthy trial at Snaresbrook Crown Court before Her Honour Judge Korner QC and a jury of counts of conspiracy to possess a firearm with intent to endanger life or to enable another to endanger life and of conspiracy to possess ammunition with the like intent. A separate trial had for various reasons been ordered for the defendants, Josiah Wilson and Timothy Dawson. They were convicted after a trial on 20th November 2013, at the same Crown Court, of conspiracy to possess a firearm with intent to endanger life or to enable another to endanger life. Those two however were acquitted of a count of conspiracy to possess ammunition with intent to endanger life and another related count in the alternative relating to possession of ammunition.[5]On 21st December 2013 the trial judge sentenced the various defendants in the following ways. Nathan Deacon was sentenced to a term of 10 years' imprisonment on count 1 and to 2 years' imprisonment on count 3, the ammunition count, to run concurrently. The total sentence in his case was thus one of 10 years' imprisonment. Tafari Deacon received precisely the same sentence. Kumar received 8 years on count 1 and 2 years concurrent on count 3, thereby receiving a total sentence of 8 years' imprisonment. The defendant Wilson received 4 years' imprisonment on the count on which he was convicted and the like sentence was imposed in the case of the defendant Dawson. We grant leave in each case.[6]The background facts can be summarised as follows. Each of these defendants was a member of a gang based in South London called the "Roadside Gangsters" or RSG. The Deacon brothers were senior members of that gang, or "olders", and clearly each had a prominent role within the gang. The defendants Wilson and Dawson were junior members of the gang or "youngers". The gang had a very significant reputation at the time for violence and drug dealing.[7]On 7th December 2011 the Deacon brothers travelled by car from South London to Bedford. They were in a Peugeot which had been hired. That, it is said, is common in the case with use of cars by gangs with a view to assisting in avoiding detection. Wilson and Dawson were with them in the car. In Bedford they visited the address of Kumar. Kumar was not a member of the gang but was a dealer in drugs and had regularly supplied cannabis to the Deacons in the past.[8]On this occasion, however, the main purpose was not to collect cannabis from Kumar. On the contrary there was collected from Kumar a .38 Ivor Johnson revolver together with five rounds of ammunition. The revolver was not of very modern manufacture but was in full working order and, as subsequent testing showed, was capable of being lethal. The ammunition was live and capable of being used with the revolver.[9]The group were in Bedford for around an hour. Wilson and Dawson then returned to London by train from Bedford, having been driven to the station by the Deacons. Wilson and Dawson had with them on the train a rucksack and a white bag. When they arrived at Kings Cross station in London, shortly before 9 o'clock in the evening, Wilson put the rucksack on his back and Dawson carried the white bag. They were stopped at the ticket barrier. When challenged Wilson said that the rucksack was not his and he had been asked to carry it. He said that he did not know what was in it. In fact in it was, amongst other things, a ring binder relating to Dawson's work studies, Dawson being a student. Also in the rucksack was Wilson's jacket. Further, there was found in the rucksack the revolver, placed in an Addidas bag, and a cellophane wrapper containing the five rounds of ammunition. The wrapper had Kumar's fingerprints on it. In the white bag carried by Dawson there were found papers of Dawson relating to his studies. He was further to accept that the ring binder in the rucksack was his also.[10]Wilson had, amongst other things on him, two Nokia mobile phones. Dawson had on him a Blackberry and a T-Mobile phone. On the Blackberry, which Dawson denied was his, were photographs in effect extolling guns, money, drugs and the RSG paraphernalia. A number of the pictures were of Wilson. In the meantime, the Deacons had returned from Bedford to London by the hired car. En route they met up at a petrol station with others in yet another hired car - on the prosecution case, other unidentified members of the gang.[11]There was adduced at trial a considerable amount of evidence relating to mobile phone use as well as surveillance evidence. After Wilson and Dawson had been apprehended at Kings Cross, for example, there was frequent attempted at contact by a mobile phone from the Deacons, both during that night and in the following morning: clearly, as the prosecution case was, indicating that they were anxious to know what had happened. Indeed, a very great deal of the evidence at the trial related to the mobile phone use and cell site analysis at various relevant stages. Phones seized from Kumar also linked him to the Deacons.[12]When interviewed Wilson and Dawson made short prepared statements but otherwise gave no comment interviews. The Deacons were interviewed a considerable time later. They gave no comment interviews. Kumar, when interviewed in the late summer of 2012, denied any connection with the Deacons and denied any knowledge of the gun and ammunition.[13]It may be noted that before they were interviewed for this alleged offending, each of the Deacon brothers had been arrested on suspicion of murder, involving the use of a gun in a drive-by shooting of an 18-year-old in South London. That killing had taken place in June 2011. In due course each of them was charged with murder. After a lengthy trial in the early part of 2013, at the Central Criminal Court, Nathan Deacon was convicted of murder. He was sentenced on 23rd May 2013 to life imprisonment, with a minimum term of 30 years.[14]Tafari Deacon was, on the direction of the trial judge, acquitted of murder; but he was convicted of perverting the course of justice. That had involved his assisting in the burning of the car which had been involved in the killing. He was in due course sentenced to a term of 8 years' imprisonment. We are told that Nathan Deacon has lodged an appeal against his conviction for that murder.[15]We turn to deal with the antecedent history of the defendants. Aside from his conviction for the murder Nathan Deacon had a number of previous convictions for relatively minor violence, for robbery and for drug offences - a number of them committed whilst he was a minor. He had not previously received a lengthy custodial sentence. He claimed in evidence at the trial that he was a low level drugs dealer. There was clear evidence of his involvement, under various lurid nicknames, in the gang as an elder. Tafari Deacon also was known as a prominent elder in the gang. He too has a number of previous convictions. He was, in particular, sentenced to a 54 month detention order on 24th September 2004, for offences of robbery and possession of an imitation firearm. Thereafter, most of his convictions were for minor drugs offences, until he received the sentence of 8 years' imprisonment for the offence of perverting the course of justice. He too, as we understand, claimed in evidence at trial that he was a low-level dealer in drugs. Kumar had a number of previous convictions for theft, robbery, driving offences and failure to comply with community orders. He had received an 18 month detention and training order on 28th September 2005. Wilson had no previous convictions and one reprimand for a minor drug offence. Dawson had a previous conviction for an offence of concealing criminal property committed on 1st June 2011, for which he received a community sentence. He was at the time studying at university for a degree in computer engineering.[16]The trial judge was in a good position to assess the facts and to assess the respective roles of those involved: as indeed the defendants have emphasised before us today. When she came to pass sentence she made clear that all five of the accused had been ready to deal with the revolver and ammunition. She found however, so far as Dawson and Wilson were concerned, that they did not have the intent for themselves but knew that the firearm would be used by the Deacons with the relevant intent. She had regard to the fact that each of Wilson and Dawson were acquitted on the ammunition counts. She described Kumar as the "supplier". She found as a fact, and inevitably so on the evidence, that all four of the defendants apart from Kumar were members of the RSG gang. She accepted the roles ascribed to them by the prosecution. She accepted that they were involved in organising dealing in drugs.[17]In the course of her detailed sentencing remarks the judge, amongst other things, said this:
"I should say straightaway that in respect of Wilson and Dawson I accept the submissions that the conviction in their case was not on the basis that they themselves had that intent but knowing the Deacon brothers, as they clearly did, they knew that the firearms would be used by the Deacons with the relevant intent."
Going on in her sentencing remarks, at page 51, she dealt with the background relating to the RSG gang. Among other things, in that context she said this:
"... certainly those of us who sit on a daily basis in these courts, are aware that involvement in the gang related drug dealing and consequent turf warfare, as it is sometimes described, or rivalry between gangs, has led to an increase in lethal use of firearms. The purchase of the ammunition that went with this gun makes it clear that more than frightening was intended.... Accordingly, in my judgment, the offences of which the defendants fall to be sentenced today rise well above the minimum in the scale of gravity when considering the element of public protection which the legislation was designed to try and ensure."
[18]She described each of Nathan Deacon and Tafari Deacon as being "the leading lights" in the criminal agreements. She decided, having quite rightly considered the matter, that she would not impose an indeterminate sentence, but instead would impose a determinate sentence in each case, so far as those two were concerned.[19]With regard to Kumar, she amongst other things said this:
"... he had dealt with at least Tafari Deacon on a regular basis and clearly knew the sort of man that he was. Yet Kumar provided him and his brother with the gun and the ammunition knowing the use to which it would be put."
The judge in the circumstances decided to draw overall no distinction between Nathan Deacon and Tafari Deacon.[20]The judge, when dealing with Wilson and Dawson, clearly was impressed by the potentially strong personal mitigation advanced in their regard. She decided, in her words: "There is an element of exceptional circumstances" with regard to them. She saw no reason to distinguish between the two of them. In the result she imposed the sentences that we have indicated.[21]Before proceeding to the submissions which have been addressed to us, we should refer to a number of authorities to which we have been referred as potentially assisting in assessing the appropriate sentencing for offending of this particular kind. It has to be said that one cannot extract an entirely consistent sentencing range from the authorities, particularly if one takes into account authorities going back a number of years. One thing however shines through quite clearly, and that is that the courts are taking an ever increasing and stern view of firearms offences of this particular nature.[22]As is well known, there is no sentencing guideline currently extant with regard to firearms offences. The matter has to be assessed by reference to the provisions of the Firearms Act and the authorities in this field. It is common ground that the maximum sentence available for these offences of conspiracy, so far as the firearm was concerned, is one of life imprisonment.[23]It is also to be noted that this offending was charged as a conspiracy. Accordingly, the minimum term provisions of the firearms legislation, as contained in section 51A of the Firearms Act 1968 do not strictly apply. It seems unreal however not to acknowledge the potential relevance of such a minimum term given the present circumstances: and the judge was, in our view, quite right to do so. Indeed, no one submits that she was wrong to do so. That said, it should also be borne in mind, that the minimum term of 5 years, as prescribed by the legislation, is just that: it is a minimum term. It is not to be regarded as a starting point for these purposes.[24]It remains convenient, in considering the approach to be adopted in cases of this kind, to have regard to the case of R v Avis [1998] 2 Cr App R(S) 420. As is well known, relevant considerations, as indicated by that case, include, although are not confined to, the sort of firearm involved, the use actually made of the firearm, the intention with which the firearm was possessed ("the more serious the act intended the more serious the offence") and the antecedent history of the accused.[25]It has to be said, pausing there, that those questions taken together yield answers effectively highly adverse to at least the first three of the accused. It is true that the revolver was not, when it was seized, loaded. But it had ammunition available for its immediate use and, as the judge found, it was indeed intended to be used by the Deacons for gang purposes. As she, with no sense of understatement put it, it was for "more than frightening".[26]There is also to be borne in mind the antecedent history of each of the first three defendants, which is by no means favourable to any of them and is particularly unfavourable to Nathan Deacon and to a significant extent to Tafari Deacon, in view of the outcome of the trial at the Central Criminal Court. It is right to say that apart from that, none of the defendants had any convictions for previous firearms offences.[27]That firearm offences of this kind should be regarded with sternness by the courts, particularly in modern times, is made clear by the observations of Lord Judge LCJ in the case of Attorney-General's Reference No 43 (Bennett and Wilkinson) [2010] 1 Cr App R(S) 100. There, with, if we may say so, typical clarity and force, he said this at paragraphs 2 and 3 of the judgment:
"The gravity of gun crime cannot be exaggerated. Guns kill and maim, terrorise and intimidate. That is why criminals want them: that is why they use them: and that is why they organise their importation and manufacture, supply and distribution. Sentencing courts must address the fact that too many lethal weapons are too readily available: too many are carried: too many are used, always with devastating effect on individual victims and with insidious corrosive impact on the wellbeing of the local community. The purposes of sentencing are identified in section 142 of the 2003 Act. None of these purposes is pre-eminent. All apply to every case, but as a matter of sentencing reality, whenever a gun is made available for use as well as when a gun is used public protection is the paramount consideration. Deterrent and punitive sentences are required and should be imposed."
[28]We note indeed that in a decision of another constitution of this court, in the case of R v Sheen and Sheen [2012] 2 Cr App R(S) 3, it was pointed out that an offence under section 16 of the Firearms Act 1968 may, in appropriate circumstances, attract a sentence as long as or longer than an offence of attempted murder.[29]We were referred in the written arguments to the case of Attorney-General's Reference Nos 58 to 66 of 2002 [2003] EWCA Crim 63, where, at one stage, it had been indicated that possession of a firearm and ammunition with intent to endanger life merited, in a contested case, a sentence of between 7 and 8 years. Whatever the rightness of that observation made at that time, it simply does not reflect the attitude required to be taken by the courts now. Even in the last 12 years things have moved on considerably given the prevalence of and concerns about the carrying and use of firearms, as indeed Lord Judge has made so clear. We do not think that that particular case should any more be cited or relied upon as authority for any general proposition that a range of 7 to 8 years still is appropriate for offending of this particular kind.[30]Thus, in Attorney-General's Reference No 6 of 2011 (R v Rollings) [2012] 2 Cr App R(S) 67, a starting point of 11 years was taken by the Court of Appeal on a Reference as appropriate as being "the very least possible sentence" on the particular facts of that case, where the offender was in possession of a gun loaded with live and expanding ammunition.[31]There was considerable emphasis before us today on a decision of another constitution of this court in the case of R v Sugulle [2013] 2 Cr App R(S) 61. There a starting point of 15 years, reduced to 10 years to allow for an early plea, was held to be appropriate where the accused, who had no previous convictions for any relevant firearms offences, was found in possession of a loaded gun, which gun had been used in a previous shooting relating to gangs some four days earlier. It may however be noted that in Sugulle there had been no findings as to any particular gangland context in which the accused was found to be in possession of the loaded gun. We further note that in Sugulle it was made clear that the previous decision in the Attorney-General's Reference, Rollings' case should not itself be taken as a rigid guidelines case as to the appropriate sentencing range for offending of this kind.[32]We add that we were also referred to a number of other authorities in argument, to which we do not think we need make specific reference, save only to the case of R v Jones [2012] 1 Cr App R(S) 25. As to that particular case, we would say that that was an wholly exceptional case, on wholly exceptional and specific facts, which lends no real assistance to the appropriate approach to be adopted in the vast generality of these cases.[33]We turn then to the present case. As we have said, the judge had considered the dangerousness provisions and had elected not to impose an indeterminate sentence. Mr Denison QC, on behalf of the Attorney-General, makes clear that he does not seek to challenge that. In our view, he was right so to accept. This was a matter for the judge's evaluation in the circumstances of the case and we see no reason to interfere with her discretionary assessment of the position.[34]All defence counsel before us today pressed us with the thoroughly valid point that these were sentences imposed by a very careful and experienced judge, well familiar with cases of this particular kind and having had the very great advantage of conducting the trials and having had the feel of the whole case. All counsel before us more or less expressly accepted that each of the sentences was to be regarded as lenient. But all of them said that they were not to be regarded as unduly lenient. It was submitted that there would be no affront to justice and no affront to the feelings of the public if sentences of this order were maintained. It was said that the discretion of the judge should be respected by this court: and of course this court does respect the discretionary evaluation of the judge.[35]Even so, we are of the view that none of these sentences can be maintained. It is to be remembered that all of these defendants were convicted of conspiracy to possess the firearm with intent. That further extended, so far as the Deacons and Kumar were concerned, to the ammunition as well. This, in our view, is a significant factor which does not, with all respect, find full reflection in the judge's sentencing remarks.[36]What the Deacons did, moreover, was carefully planned. It involved Kumar as supplier of the gun and ammunition in Bedford. It involved an arranged journey by use of a hired car to Bedford. It involved, and most cynically and unattractively, the exploitative use of the youngers (that is to say Wilson and Dawson), to act as couriers of the gun and ammunition back to London, whilst the Deacons sought to distance themselves from this by travelling back separately by car from Bedford to South London. Furthermore, we regard it as essential that the entire gangland context finds proper reflection in the sentences imposed. As we have already indicated, this gangland context was far more extensive and was far more clearly established than was so in the case of for example, Sugulle. The judge herself made clear that the gun was "going to be used". It was going to be used at risk of life to enforce the gang's position in any dispute about drugs or any other gangland dispute. Gangland activity of this kind involving the use of firearms requires a particularly stern deterrent and punitive approach. Yet further, both the Deacons had bad records and Kumar also had a poor record. In particular, the records of the Deacons culminated in Nathan Deacon being convicted of a gun murder and in Tafari Deacon being convicted of conspiracy to pervert the course of justice in respect of covering up a murder.[37]Overall, as we see it, we have to say that the mitigation available for the Deacons was minimal. There could be no credit for any plea, since the trial had been contested. A sentence of 10 years' imprisonment does not, in our view, properly reflect the gravity of Nathan Deacon's offending. In our view, a sentence of not less than 15 years' imprisonment was the appropriate sentence here, on the footing that we accept the judge's decision that the sentence be determinate. In our view, a concurrent sentence of 4 years' imprisonment on count 3 would also be appropriate. We accordingly substitute a sentence of 15 years on count 1, so far as Nathan Deacon is concerned and a concurrent sentence of 4 years' imprisonment on count 3 in his case. That sentence will continue to run concurrently with the life sentence imposed at the Central Criminal Court.[38]On behalf of Tafari Deacon, Mr Goudie sought to argue that there are distinctions between his position as compared to that of his brother. He further urged us to bear in mind considerations of totality, taking into account the sentence of 8 years' imprisonment imposed at the Central Criminal Court. In our view, the judge here, having had the benefit of conducting the trial, was fully entitled to conclude that Tafari Deacon was as much a leading light as his brother, both within the gang and with regard to this particular offending. We can see no sufficient reason to depart from the judge's conclusion that he should receive the same sentence as Nathan Deacon. Accordingly, in his case, a sentence of 15 years' imprisonment is substituted on count 1 and a concurrent sentence of 4 years' imprisonment on count 3. We respect and accept the judge's indication that that sentence is to run concurrently with the sentence imposed at the Central Criminal Court: although it would have been open to the judge, having regard of course to considerations of totality, to have imposed a consecutive sentence in that regard.[39]As to Kumar, he was not a member of the gang as such. But he had dealings with the gang. It was suggested by Mr Crouch before us, although not, it seems, to the trial judge below, that Kumar was simply to be regarded as a minder of the gun and ammunition acting on the coercion and intimidation of the Deacons. That was contrary to the evidence he gave at the trial below and we see no basis for accepting such a speculative proposition. In our view, the trial judge was fully justified in regarding him as the supplier of the gun and the ammunition. Moreover, as the judge had crisply pointed out, he knew the sort of man Tafari Deacon was and he provided the gun and the ammunition knowing the use to which it would be put. In his case we consider that the sentence likewise was significantly too low and unduly lenient. In our view, his sentence should be increased to one overall of 11 years' imprisonment, which will be substituted for the sentence of 8 years' imprisonment on count 1 and there will be a concurrent sentence of 3 years' imprisonment on count 3.[40]The principal difficulty, as it seems to us, lies with Dawson and Wilson. Both of them were much younger than the Deacons. Both were juniors in the gang. Both were at the least under the influence of, albeit falling short of duress in law, of the gang leaders. In this regard we have studied, as indeed did the trial judge, a most interesting report from a Professor John Pitts on the pressures on young people in certain urban areas to join gangs and to conform with pressures in that regard whilst the leaders of the gang stay in the background. Moreover, each of them is effectively of good character and each of them seems to be making real efforts educationally and otherwise to advance themselves forward and out of the gang culture with which thus far they have become enmeshed. It is to be noted that various references were produced and a number of other positive indications were drawn to the judge's attention. We were asked also to bear in mind the approach that the constitution of this court had adopted in the case of Attorney-General's Reference Nos 48 and 49 of 2010 (Cox and Monks) [2011] 1 Cr App R(S) 706: although again, that was a decision on its own particular circumstances. We can overall see why the judge described these two as being in a "very different category". Moreover, of course, the jury had decided to acquit them on the ammunition count. It may be that such matters found reflection in the judge's finding that there was an "element of exceptional circumstances": albeit she did not spell out precisely just what she intended by that.[41]As we have indicated, we think the judge was quite right at least to have regard to the statutory minimum that is available by reference to the particular offences to which the counts relate. But with all respect to the judge we think that she was wrong to go below the minimum sentence. In truth we are not able to see, and giving all due allowance for the strong personal mitigation available to Wilson and Dawson, any exceptional circumstances here. On the contrary and notwithstanding this mitigation, in our view, the judge should have gone significantly above the minimum of 5 years applicable to offending of the specified kind. Both these appellants may have been "youngers" in the gang. But they were, in law, adult at the time of this offending. They knew what they were doing. They had chosen to participate in and remain with the gang. They knew what the gang got up to. Whatever the pressures, they remained in the gang and they did what they were told. They played a full part in travelling up to Bedford and then travelling back with the gun, having moreover, on the evidence, prepared themselves for denying liability if apprehended. They have to take the consequences of this participation in gang activity, leading to this very serious firearms offence. Moreover, it must be emphasised that most young people in urban areas do not involve themselves in gangs, notwithstanding the pressures that there may be on them. We are not minded to understate but nor are we minded to overstate what Mr Furlong sought to style as "the reality of gang culture". There may be such realities. But people should resist these pressures to criminality, the more so when they are adults capable of being responsible for their own actions; and that has to be borne in mind. There might, of course, have been further particular mitigation available had there been pleas of guilt. But there were not. That of course was the choice of these two defendants but the consequence is that that credit is therefore not available to them.[42]In all the circumstances we think the sentences in their case were unduly lenient and must be increased. It is plain that the judge wished to be lenient towards at least these two and we do wish to have respect for that. There was indeed strong personal mitigation. That cannot of itself, however, displace what is otherwise an appropriate range of sentencing. We think that the least sentence that could properly be imposed on each of them (although the sentence without any objection at all in our view could have been quite significantly higher) would have been one of 7 years' imprisonment or detention as the case may be in each case. We substitute such sentences accordingly in place of the sentence of 4 years' imprisonment imposed by the judge. To the extent that qualifying curfew days need to be taken into account, they will be taken into account in accordance with the judge's directions.[43]We should add that some mention was made before us of what counsel described as "double jeopardy". Indeed, one counsel before us rather hopefully sought to invoke what was, he said, considered to be a notional deduction for double jeopardy of the order of 20% to 30% which had some currency some time ago. We do not think that such considerations of double jeopardy in cases of this particular kind, where significant custodial sentences, on any view, were imposed and had to be imposed should feature to any great extent in the appropriate sentence now to be imposed by this court.[44]The appeals are therefore allowed to the extent that we have indicated.

Cited in 1 later judgment