Attorney-General's Reference No 34 of 2015 [2015] EWCA Crim 1152

Case No 201502026 A4[2015] EWCA Crim 1152
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 11th June 2015
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE TREACY
MR JUSTICE TEARE
MR JUSTICE GOSS
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL'S REFERENCE NO 34 OF 2015
Computer Aided Transcript of the Stenograph Notes of
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Miss B Cheema QC appeared on behalf of the Attorney General
Miss R Randall appeared on behalf of the Offender
J U D G M E N T
[2]On 11th March 2015 the offender was convicted at the Central Criminal Court after a trial concerning two offences of perverting the course of justice. The first offence related to giving shelter to a man called Hassan Hussain who had committed murder and attempted murder. The second offence was committed about a month later, when the offender provided a false witness statement to the police. There were two other offenders convicted of a like offence in relation to the disposal of mobile phones.[3]The offender was sentenced on 10th April 2015 to 24 months' imprisonment suspended for two years. The judge imposed a two year supervision requirement, a 50 hour unpaid work requirement and ordered six-monthly reviews to take place before him.[4]The facts show that in the small hours of 24th August 2013 a young woman, Sabrina Moss, out celebrating her 24th birthday, was fatally shot in Kilburn High Road. This happened during the course of an attack whose intended targets were members of the South Kilburn gang. Standing with members of that gang were Miss Moss and another young woman. Miss Moss was killed. The other young woman sustained near fatal injuries and her life was only saved by emergency surgery. Members of the gang were also injured.[5]The guns used in the attack were a sub-machine gun and a shotgun. The two women mentioned were innocent victims in this shooting. The gunmen were Hussain and his cousin. There had been extended surveillance carried out by Hussain, or on his behalf, in the hours preceding the attack which arose from ongoing rivalry between two gangs.[6]In August 2014 Hussain and his cousin were convicted of murder, attempted murder and conspiracy to cause grievous bodily harm. This offender helped Hussain by giving him shelter in the hours after the murder, when an intense police investigation in the area of Kilburn High Road was taking place.[7]At about 6 am on the day of the shooting, and within a couple of hours of it, Hussain contacted the offender by phone and then he and his cousin travelled by cab to the offender's address in Kilburn. Cell site evidence for the offender's phone showed that initially she was not at home. However, having received the call from Mr Hussain, those same records show that she moved from the Finsbury Park area, where she had been staying overnight, to her home address. Hussain then remained at the offender's address until the afternoon of the day in question. This enabled him to evade police searches before he returned to his own home.[8]Later that day, shortly before 7 pm, the offender contacted Hussain, who made his way back to her address later that evening. He then spent the night there. Thus there was a second lengthy period in the critical first 24 hours of the police investigation during which this offender enabled Hussain to hide at an address that the police would not connect him to if they had identified him as a suspect.[9]On the following evening the offender contacted a man called Baptiste. He been involved in the surveillance operation and was subsequently convicted of conspiracy to cause grievous bodily harm. Cell site evidence shows that he then travelled towards the offender's home.[10]The second count of perverting justice relates to 4th October 2014. By then Hussain and his cousin had been arrested. Police visited the offender, who lied to them about her contacts with Hussain on 24th and 25th August. She then gave a witness statement falsely stating that Hussain had not attended her address at all at that time and that she did not recall speaking to him or seeing him.[11]When the offender was subsequently arrested and interviewed under caution, she maintained that her witness statement was accurate and persisted in doing so throughout her trial.[12]The offender is 25 years of age. She is a single mother who has had a difficult childhood and background. At the time of sentence she had two young children, one aged about five and one now aged about nine months. She has had a history of substance abuse, although this is said to have been brought under control since the birth of her children. She has continued to maintain an account that she was unaware of Hussain's presence at her home after the murder, although she says she is appalled by what he had done.[13]The offender was before the courts on occasions in her mid-teens, but the trial judge treated her as being of previous good character.[14]Pre-sentence reports before the judge expressed concern about the impact upon her children of separation from their mother if a custodial sentence were to be passed. There was in place a plan for the children to be looked after by the offender's mother, who was living with her.[15]In passing sentence, the judge said that, but for the offender's personal mitigation, an immediate sentence would have been passed. He continued:
"In view of what I have read and heard about your individual personal and family circumstances and in particular your children, I have come to the conclusion that there are just exceptional circumstances which mean that I can suspend those sentences."
[16]On behalf of the Attorney General, it is submitted that the sentence passed was unduly lenient. It is pointed out that the present case did not involve a single, rushed, short-term sheltering of someone suspected of a murder. This was a sustained offence with shelter being afforded on two separate occasions. There appears to have been no evidence of pressure or coercion on the offender. Moreover, there was a second offence committed over a month later.[17]Further, the judge appears to have double counted the personal mitigation available to the offender, having stated that, but for her mitigation, he would have passed a sentence of at least three years which would have matched the sentence passed on the co-accused. Although both those offenders had significant criminal records, this offender's actions were considerably more serious than what they had done. Having used the personal mitigation to reduce the length of sentence to two years, the judge then used the same mitigation to enable the sentence to be suspended. Thus, it is that the Attorney General submits that there is an element of double counting.[18]On behalf of the offender, it is accepted that the sentence passed was a lenient one. It is, however, submitted that the judge, who had conducted the trial, was entitled to take a merciful course. Considerable reliance has been placed upon the offender's difficult upbringing and background, her parental responsibilities and the potential emotional harm and disruption for the children if their mother is incarcerated. The court is urged not to disturb the sentence imposed.[19]We have seen a supplementary report prepared for the purposes of this appeal. It shows that so far the offender has engaged with the supervision requirement, but, in contrast to the reports before the judge, the supplementary report concludes that there is no evidence that the offender's children would be at risk of significant harm if their mother was sent to custody.[20]It has long been recognised that the offence of perverting the course of justice is so serious that it is almost always necessary to impose an immediate custodial sentence unless there are exceptional circumstances: see Attorney General's Reference No 44 of 1994 [1996] 1 Cr App R (S) 256. In Tunney [2007] 1 Cr App R (S) 91, this court identified three relevant factors, namely: the seriousness of the substantive offence; the degree of persistence in the offending conduct; and the effect of the attempt to pervert the course of justice on that course of justice.[21]Applying those considerations to the present case, clearly the underlying substantive offences were extremely serious. Secondly, the assistance given was important and far from fleeting: it covered two stays at the victim's home at a critical time in the police investigation. Although we accept that Hussain made use of the offender, there is no evidence of pressure or unwillingness on the part of the offender to assist. Nor did the passage of time cause her to re-evaluate her actions since she compounded the matter about a month later by providing a false witness statement and lying to investigating officers. That is a position from which she has never resiled, as her contesting of the trial shows. Whilst the assistance given did not ultimately prevent arrest or a successful prosecution, it clearly had the potential to do so. That analysis shows what we consider to be a serious offence of its type for which, in the ordinary course of events, a significant custodial sentence would be appropriate.[22]We have already touched upon the mitigation available. The offender's difficult personal background and consequent vulnerabilities and the absence of relevant previous convictions carry some weight, but are not out of the ordinary. We bear in mind that the offender's actions did not ultimately prevent the arrest of Hussain, but the assistance given provided a delay which enabled the offender to remain in contact with other offenders.[23]The principal mitigating feature, however, lies in the fact that the offender is a single parent with two young children. We have conflicting assessments in the reports as to the impact of a custodial sentence upon them. We proceed on the basis that there would undoubtedly be some impact, albeit that we note that they would remain in the same home and in the care of their grandmother who has had caring responsibilities for them hitherto.[24]In this context we have had regard to the decision of this court in Petherick [2013] 1 Cr App R (S) 116. Clearly, the legitimate aims of sentencing are to be considered alongside the effect of a sentence on family life. The question is one of proportionality and balancing conflicting interests. As was observed in Petherick, the likelihood of interference with family life, which was inherent in a sentence of imprisonment being disproportionate, was inevitably progressively reduced as the offence was graver.[25]Absent the mitigation in this case, we envisage a sentence of at least three years and probably more being passed for this offending.[26]We have come to the conclusion that, given the circumstances of this offending and its aggravating features which we have identified, the sentence passed was not only lenient, but unduly lenient. We consider that the public interest in dealing with crime of this gravity, together with the need for deterrence, significantly outweighs the detriment to the children of this offender so that an immediate sentence should have been passed. We do not view the circumstances of this case as so exceptional as to justify the course taken by the judge. In so concluding we have taken into account the fact that an experienced judge who had conducted the trial passed sentence. We have no doubt that he gave this case his usual anxious consideration. However, on this occasion we consider that he got the balance wrong. The sentence passed was in the circumstances not merely lenient, but unduly so. Accordingly, we give leave to the Attorney General.[27]That said, we recognise that custody will bear hard upon an offender who had initially been sentenced to a non-custodial term. In the short time since sentence there has been satisfactory compliance with the requirements of the suspended sentence order and we should recognise that. Moreover, the fact that we have concluded that it is appropriate for an immediate custodial sentence to take effect does not mean that the potential effects upon the offender's children cease to be a relevant mitigatory consideration. We give weight to that factor in addition and, taking those factors together, they lead us to reduce the immediate custodial term which must be imposed from that which was contemplated by the judge.[28]We allow this application. We declare the original sentence unduly lenient and substitute for it a term of 18 months' imprisonment concurrent on each count. That will take effect from today as the offender is in court and must now surrender to custody.

Cited in 1 later judgment