R v Hugo Okecha Nwankwo [2024] EWCA Crim 1375

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.[2024] EWCA Crim 1375
IN THE COURT OF APPEAL
Venue Royal Courts of JusticeDate Thursday 18 July 2024
Strand
London
WC2A 2LL
Before
LORD JUSTICE WILLIAM DAVISMRS JUSTICE THORNTONSIR ROBIN SPENCERREFERENCE BY THE CRIMINAL CASES REVIEW COMMISIONUNDER S.9 CRIMINAL APPEAL ACT 1995
Between
REXCrownv
Between
HUGO OKECHA NWANKWO__________Computer Aided Transcript of Epiq Europe Ltd,Lower Ground Floor, 46 Chancery Lane, London WC2A 1JETel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)_________MR EDWARD FITZGERALD KC & MS PIPPA WOODROW appeared for AppellantMR DUNCAN ATKINSON KC appeared for Crown_________J U D G M E N T
[1]On 22 November 2012 at the Central Criminal Court the appellant (then aged 18) was convicted of murder and violent disorder. He stood trial with seven other males of varying ages. Three others were convicted of murder and violent disorder. A fourth was acquitted of murder and convicted of violent disorder. The remaining co-accused were acquitted of both counts.[2]On 20 December 2012 the appellant was ordered to be detained at Her Majesty's Pleasure in respect of the offence of murder. He was aged 16 years 9 months at the date of the offence. A minimum term of 16 years was specified pursuant to section 269(2) of the Criminal Justice Act 2003. A concurrent sentence of 4 years' detention in a young offender institution was imposed for the offence of violent disorder.[3]The coaccused who were convicted of murder were sentenced as follows: Dale Williams (who was 19 at the time of the offence) - imprisonment for life with a minimum term of 26 years; Lerone Boye (25 at the time of the offence) - imprisonment for life with a minimum term of 28 years; Roger Damali (aged 30 at the date of the offence) - imprisonment for life with a minimum term of 23 years.[4]The appellant applied for leave to appeal against his sentence. The single judge gave leave. The full Court heard the appeal on 9 April 2014. The appeal was dismissed.[5]The appellant now appeals his sentence upon a reference by the Criminal Cases Review Commission, pursuant to section 9 of the Criminal Appeal Act 1995. He applies pursuant to section 23 of the Criminal Appeal Act 1968 to rely on evidence not relied on either at the sentencing hearing or at the hearing of the appeal in 2014. The Commission have referred that application to the full Court. The factual background[6]In the early hours of 15 August 2011, a 17-year-old named Kelvin Chibueze died as a result of a stab wound to his chest. He also suffered stab wounds to his left arm and his left buttock. These latter wounds were not a contributory cause of his death. Chibueze and a group of friends had gone to a club on the Ilford High Road in East London to attend a private party. Inside the club there was tension between Chibueze and his group and another group which included Williams and Boye. There appears that there was a point at which Williams and Boye left the club. The inference which the jury must have drawn was that they had gone to arm themselves. Shortly before 3.30 a.m. they went back into the club. The appellant followed them but did not himself go inside the club. Just before 4 a.m. Chibueze and his friends were confronted by a group of males, some of whom had knives. That group included Boye and Williams. This confrontation occurred close to but inside the entrance to the club. It was here that the fatal blow was struck.[7]Who struck the blow was never established. However, Boye and Williams each had a knife. After the event the blood of Chibueze was found on Williams's trainer and on Boye's trainers and jeans. Chibueze was able to run from the club. He was chased by two males. One of them was the appellant who had remained outside the club but close to the entrance. Chibueze collapsed in a nearby car park. The appellant had a knife. As Chibueze lay on the ground, the appellant stabbed him in the buttock. The appellant then left the car park. He met Williams nearby. In due course the appellant went home. He had been wearing a distinctive puffa jacket that evening. The jacket was never recovered despite his home being searched thoroughly. When interviewed the appellant made no comment.[8]At trial the appellant's case was that he had not entered the club. He had been outside the club when Chibueze and his group had come out. He had moved towards the car park when that group had done so. He was unaware of any attack on Chibueze inside the club. He had not been a party to that attack. He had not had a weapon of any kind. There had been a point where a friend of his had been threatened by members of the opposing group. He had pretended to have a knife in order to ward them off. The sentence[9]The trial had occupied 54 working days. The evidence in the trial did not explain why violence had broken out as it had. The judge concluded that there was something in the background. There had been an element of planning with telephone contact between the participants prior to the fatal attack. Weapons had been gathered from somewhere. Beyond that it was not possible to establish any motive.[10]The judge observed that the convicted defendants had all lied about their own roles and what part had been played by others. That left him without a clear picture of how to apportion responsibility. He concluded that the safe course was to regard them largely as equally responsible for what had happened. The jury had been directed that, in order to convict, they had to be sure that the defendant whose case they were considering was part of a joint enterprise to attack Chibueze and his group and that the defendant had a knife or knew that at least one other participant in the joint enterprise had a knife. However, the judge was able to determine on the basis of the evidence called in the trial that Williams and Boye were the ringleaders and that both of them had a knife. The judge further found that the appellant had had a knife.

The judge found aggravating factors common to all defendants:

[11]repeated use of knives by more than one person to inflict serious wounds; a group attack; disposal of evidence such as the knife used to inflict the fatal blow and, in the appellant's case, relevant clothing; a degree of planning in the lead up to the attack on Chibueze. The judge was satisfied that the attack on Chibueze in the car park was carried out by the appellant and Williams when it was apparent that Chibueze already was grievously injured. He accepted that some of the Chibueze's group had had knives. He said that this provided little or no mitigation in the context of two armed groups confronting each other.[12]The minimum terms imposed in respect of Williams and Boye were based on a starting point of 25 years by reference to what was then paragraph 5A of Schedule 21 of the Criminal Justice Act 2003. In Williams's case the judge took into account the fact that he was only 19 at the time of the offence and his limited criminal history. Boye's case was aggravated by a bad criminal record and commission of the offence in breach of a suspended sentence.[13]In relation to the appellant, the appropriate starting point was 12 years by reference to what was then paragraph 7 of Schedule 21 of the 2003 Act. The judge said that he took account of the appellant's age. He accepted that the appellant was not present when the fatal blow was struck and that he was not a leader or planner in relation to the events at and outside the club. He said that the appellant did not necessarily take a knife to the scene though his conviction for murder meant that he was a party to a joint enterprise involving the taking of weapons. The judge observed that "it is particularly sad that you have wasted your undoubted intelligence and chosen the route that you have". He then made the order which led to a minimum term of 16 years.[14]In 2023 that minimum term was reduced to 15 years 4 months in circumstances to which we shall refer later. The grounds of appeal[15]The Commission referred the sentence imposed in 2012 on three grounds.• . First, the minimum term was set without any allowance being made for the time spent by the appellant on remand prior to his sentence. In addition, before he was remanded in custody, the appellant was on police bail to which a doorstep curfew between 7 p.m. and 7 a.m. was applied. The curfew operated from 20 August 2011 to 1 March 2012. No reduction was made to the minimum term to allow for any part of this deprivation of liberty.• . Second, recently obtained psychiatric evidence shows that the appellant was suffering from mental disorder which, had the judge been aware of it, would have affected his assessment of the appellant's culpability. This is the evidence which is the subject of the application pursuant to section 23 of the Criminal Appeal Act 1968.• . Third, the uplift of 4 years from the starting point of 12 years in paragraph 7 of the 2003 Act (as it then was) was excessive when compared to the uplift applied to the adult defendants whose roles were more significant than that of the appellant.[16]The first ground is relatively technical. We consider it has obvious merit. When sentencing, the judge said nothing about the time the appellant had spent on remand. At the time of the sentencing hearing, the relevant statutory provision was section 269 of the Criminal Justice Act 2003. Section 269(3)(b) of the 2003 Act required the court to set a minimum term taking into account "the effect of s.240ZA (crediting periods of remand in custody) or of any direction which would have been given under section 240 (crediting periods of remand on certain types of bail) if it had sentenced him to a term of imprisonment". Just as now, in December 2012 a judge imposing a life sentence was obliged to impose a minimum term which credited the defendant with time spent on remand or on qualifying bail. In this case the judge said nothing at all about time on remand whether in relation to the appellant or any other defendant. The detailed sentencing note prepared by the prosecution did not, as a matter of fact, refer to the time the appellant had spent on remand. A document prepared after the hearing headed "Mandatory Sentence Form", which apparently emanated from the court, stated that the minimum term was 16 years and that any time spent in custody was to be calculated and deducted by HM Prison Services. This document would have been accurate had the appellant been sentenced to a determinate term. It represented the effect of section 240ZA. But that provision did not and does not apply to life sentences. When imposing a life sentence, it was and is for the court to calculate the time spent on remand to be deducted from the minimum term. The minimum term is part of the sentence of the court. It must be announced by the court and it must take account of time spent on remand. Time spent on remand cannot be the subject of any form of administrative exercise: see Sesay and others [2014] EWCA Crim 483.[17]On the face of it, it is surprising that no one at the sentencing hearing realised that something had gone awry. One explanation might be that the judge intended that the minimum terms he announced in themselves took account of the time spent on remand. We reject that explanation. It is not consistent with the "Mandatory Sentence Form" to which we have referred. The Commission asked counsel who appeared at the trial whether anything had been said in relation to time spent on remand. Unsurprisingly, none was able to recall. Junior defence counsel discounted the suggestion that the minimum terms in effect were net of time on remand since the judge did not say they were and the judge had no information about the period involved. He considered that it was possible that all counsel believed that time spent on remand would be taken into account administratively. That is the most likely explanation. With effect from 3 December 2012, the 2003 Act provisions in relation to time on remand were amended by section 108 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The amendment created section 240ZA of the 2003 Act. That meant that in relation to any determinate sentence imposed after 3 December 2012 remand time would be calculated and applied administratively. Previously, a judge when sentencing a person had been obliged to specify the number of days. This change was widely publicised within the judiciary, but section 240ZA does not apply to life sentences. We consider it likely that the exclusion of life sentences from the new provision was missed by counsel and the judge. It is to be noted that nothing was said in relation to time on remand to count as time served in the judgment of this court which heard the appeal in 2014. Thus, not only was the issue not raised by counsel but also this court failed to notice the apparent error.[18]The result of the error is that the time spent by the appellant remanded in custody (293 days) was not ordered to count against his minimum term. The judge was not required to credit the time spent on remand when announcing the minimum term. He had a discretion. However, in the absence of unusual circumstances, the discretion would be exercised in the favour of the defendant in any given case. There is nothing in the appellant's case which indicates that it would not have been appropriate to order time on remand to count as part of the sentence. The appellant did nothing to contribute to the failure of the judge to exercise his discretion. The period of 293 days must be credited as time served.[19]A further issue in relation to crediting time against the minimum term arises from the time during which, prior to his remand in custody, the appellant was subject to police bail with a curfew requirement. This was not a qualifying curfew. The appellant had no statutory entitlement to this time being credited as time served. Where such entitlement does exist, the time to be credited is one day for every two days subject to curfew. In R v Whitehouse [2019] EWCA Crim 970, [2019] 2 Cr App R (S) 48 the appellant had been subject to extremely restricted bail conditions which included a nonqualifying curfew for nearly 21 months prior to sentence. This court concluded that the sentencing judge had a discretion to give some credit for that period. It was determined that no precise quantitative time could be taken. In the circumstances of that case, the court said that 9 months was the appropriate period to count as time served.[20]Here, the trial judge was not alerted to the period during which the appellant had been subject to a non-qualifying curfew. In arithmetical terms the curfew had been in force for 194 days. The bail conditions here were significantly less onerous than those which had applied to the appellant in Whitehouse. In that case the time credited amounted to approximately 40 per cent of the period when the bail conditions had applied. This compared to the position that would have applied had there been a qualifying curfew, namely 50 per cent of the curfew period counting as time served. Whitehouse is not a guidance case but it is a helpful example of how the discretion ought to be exercised. We consider that justice will be done in this case if 72 days is credited to the time to be counted as served.[21]The overall effect of that is that the minimum term will be reduced by one year. How that translates in terms of the total sentence will depend upon our conclusion in relation to grounds two and three, to which we now turn.[22]At the sentencing hearing the judge had the assistance of a pre-sentence report prepared by a probation officer. That officer had had access to a variety of material including a detailed assessment compiled in June 2012 by the appellant's local youth offending team when the appellant was still aged 17. The report set out the appellant's account of the events of the night of 15 August 2011 which mirrored the evidence he had given at the trial. The appellant maintained that he had had nothing to do with the killing of Chibueze.[23]The report contained a section headed "Health and Emotional Wellbeing". The author of the report observed no indications of any mental health matters during her interview with the appellant though it is to be observed that that interview was conducted via a video link. The appellant said that he had never suffered any mental health problems. He did not suffer from depression or low mood. He had never experienced suicidal ideation. The author of the report referred to the youth offending team assessment as also not having identified any mental health problems.[24]Other than his involvement in the events of 15 August 2011, the picture painted of the appellant by the report was of an intelligent young man who had obtained good GCSE results and who was now studying for A levels. Prior to his remand into custody the appellant had lived at home with his mother. His father had left the family home when the appellant was aged 6. The author of the report had the impression that the appellant "might have some issues regarding his father".[25]Early in 2021, as he was then entitled to do, the appellant applied for a reduction of his tariff or minimum term pursuant to the principles in R (Smith) v Secretary of State for the Home Department [2006] 1 AC 159. For the purposes of the application he was assessed by Dr Anna Pascall, a consultant psychiatrist. Dr Pascall assessed him further in November and December 2023. She has provided reports for the purposes of this appeal: dated 26 January 2024 and 23 June 2024. This is the evidence on which the appellant now seeks to rely pursuant to section 23 of the Criminal Appeal Act 1968.[26]Section 23(2) sets out the criteria to which we must have regard when considering receipt of new evidence.(a) whether the evidence appears to the Court to be capable of belief;(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.[27]There is no issue about the credibility of Dr Pascall. Insofar as she gives evidence about the mental health of the appellant at the time of the offence, it would have been admissible at the appellant's trial and sentence. At issue is whether there is reasonable explanation why psychiatric evidence was not adduced at trial and, probably more important, whether the evidence affords a basis for reducing the minimum term set by the judge. On the latter point, the question is two-fold: whether the evidence would have led to a reduction in the appellant's culpability; whether the evidence would have provided significant mitigation not otherwise considered by the judge.[28]Dr Pascall's opinion is that the appellant suffers from complex post-traumatic stress disorder. This was caused by exposure to prolonged and repetitive domestic violence when he was a child. His condition was exacerbated by frightening events during his early teenage years. First, when he was aged 12, he witnessed someone being shot on the estate where he lived. After this he could not tolerate loud noises. He was in fight or flight mode all the time. He lived his life in a state of panic and fear. Second, when he was 13 or 14, he was attacked and beaten by a group of young males when he was on his way home one evening. The group used knives to attack him. He was left in the street clad only in his underwear. This made his state even worse. Dr Pascall also concludes that the appellant had suffered from generalised anxiety disorder from a very young age.[29]Dr Pascall's view is that these mental disorders would have been present at the time of the offence. Her view is that they would have led to an impulsive response on the part of the appellant to the situation which presented itself as people emerged from the club in August 2011. She says that the appellant's ability to exercise judgment and to make rational decisions was likely to have been severely impaired.[30]At the date of the sentencing in the appellant's case the relevant statutory provision in relation to sentencing for murder was Schedule 21 of the Criminal Justice Act 2003. A statutory mitigating factor was "the fact that the offender suffered from any mental disorder or mental disability which (although not falling within section 2(1) of the Homicide Act 1957 lowered the offender's degree of culpability..." That factor has not been changed in the Sentencing Code 2020.[31]The Sentencing Council guideline on Sentencing offenders with mental disorders was not in force in 2012. However, the guideline reflects what was proper sentencing practice at that date. The inquiry to be made by the court is summarised thus: at the time of the offence did the offender's impairment or disorder impair their ability to exercise appropriate judgment, to make rational choices and/or to understand the nature and consequences of their actions? The guideline also deals with the issue of expert evidence in this context. Paragraph 13 of the guideline reads:
"The sentencer, who will be in possession of all relevant information, is in the best position to make an assessment of culpability. Where relevant expert evidence is put forward it must always be considered and will often be very valuable. However, it is the duty of the sentencer to make their own decision, and the court is not bound to follow expert opinion if there are compelling reasons to set it aside."
Our task is to decide whether the evidence of Dr Pascall, had it been available to the judge, would have led him to conclude that the appellant's culpability was reduced by his mental disorder.[32]As might be expected, Dr Pascall in the course of her assessment obtained an account from the appellant of what occurred on the night of the murder. In summary, he said that he had made a lastminute decision to go to the club. He had gone on his own. Once at the club, he realised that "it wasn't really him". He had waited outside for a friend so that he could go home with the friend. He heard shouting and smashing glass. Some boys ran out and were trying to attack someone he knew. He turned to face the attackers and tried to shoo them away. He was not carrying a knife. Dr Pascall says that the appellant's account of what happened thereafter "is harder to follow". She gives his account as follows:
"He says he was in a zone, the adrenaline, he was so hyper that everything was in slow motion, he was panicked and felt his back to the wall. There was shouting and more bottles being thrown outside the club ... He was panicked."
[33]It is apparent that Dr Pascall's opinion depends upon the proposition that the appellant was unexpectedly confronted with violence. She offers the view that, given the violent and frightening situation facing the appellant, it is possible that he disassociated and that he does not have a clear memory of what happened on the night of the murder. However, the jury's verdict was that the appellant was party to the murder of Chibueze. They found that the appellant was party to the stabbing inside the club. They found that, at the very least, he knew that one or more of those involved in the joint enterprise had a knife. They reached their verdict on the basis of all the evidence including the appellant's association with his co-accused before and after the murder and what was apparent from the CCTV footage. For the purposes of this appeal we must accept the evidence of Dr Pascall as to the appellant's mental disorder. But the mental disorder described by Dr Pascall does not explain or reduce the culpability of the appellant for what he did as revealed by the jury's verdict. It has no relevance to his culpability for a planned attack involving a knife. In reaching our conclusion we do not dismiss Dr Pascall's professional opinion of the appellant's mental disorder at the time of the murder. Taking into account the situation in which the appellant voluntarily placed himself, we are driven to the view that his account to the psychiatrist was exaggerated. But that is not the basis upon which we find that Dr Pascall's evidence would not have led to any reduction in the appellant's culpability. Rather, her views as to the effect on the appellant's culpability are detached from the true course of events as the jury found them to be and as the judge was required to sentence upon.[34]The second issue arising from the evidence of Dr Pascall is whether her assessment of the appellant would have affected the judge's view of the appellant's maturity and his general responsibility for what happened. When the appellant was sentenced, the relevant guideline in respect of sentencing those under the age of 18 at the time of the offence was the Sentencing Guidelines Council's Guideline Overarching Guideline Sentencing Youths. As is done in the current Children Guideline, emphasis was placed on the maturity of the offender rather than simple chronological age. The judge in sentencing said that he took note of the appellant's age. In the context of the Overarching Guideline (to which the judge had been referred in the sentencing note provided to him) age is linked to maturity. Beyond that he said nothing about the appellant's characteristics. That does not mean that he ignored them. The presentence report to which we have referred already spoke of the appellant as a person with a likely "deficit in terms of consequential thinking". He was said to lack "insight into his own behaviour, especially in terms of the seriousness of not having thought through his actions ... " There is, in our judgment, no reason to conclude that the judge failed to have regard to this assessment or that the judge was not fully aware of the themes running through the Overarching Guidelines. In our judgment Dr Pascall's report does not suggest that the appellant's mental disorder was of critical importance in assessing his maturity. She says that, even without his mental disorder, his ability to make rational decisions and choices in the events which unfolded would not have been as well developed as those of a young adult. Those are the factors which the presentence report addressed. A psychiatric report would not have added substantially to the material available to the judge on the wider issue of how the appellant's maturity affected his cognitive ability.[35]In all those circumstances we conclude that the evidence of Dr Pascall provides no ground for allowing the appeal. It is not necessary for us to reach any conclusion as to whether there was a reasonable explanation for psychiatric evidence not being adduced at the sentencing hearing. Counsel and solicitors who represented the appellant in 2012 did not consider there was any reason to obtain such evidence. In the light of the content of the presentence report, that was an understandable decision.[36]The Overarching Guideline as applied at the time of this sentence or the Children Guideline issued by the Sentencing Council as would apply now both are relevant to the sentencing of any child for any offence even where the sentence is fixed by law. An offender's maturity will be relevant in fixing the appropriate minimum term. As it was in 2012, Schedule 21 represented a blunt tool for a judge sentencing someone under the age of 18 when the offence was committed. The single starting point of 12 years had to cater for unusually mature 17-year-olds who had taken a leading role in a murder involving weapons as well as relatively immature 15-year-olds who had played a secondary part in an offence without any feature taking it beyond the adult starting point of 15 years. In every case it was left to the experience of the sentencing judge to assess in which direction from the starting point it was appropriate to travel and how far the departure from the starting point should be. For this court to interfere with the assessment of the judge who heard the evidence would require us to identify a clear error on his part. Given the material available to him, we do not consider that we can say that this judge did fail to give proper weight to the age and maturity of the appellant. The grounds of appeal argue with no little force that a person aged 16 at the time of the offence should not be dealt with as a mini-adult. That proposition undoubtedly is correct. We are not persuaded that the judge in this case took the wrong approach. The relative terseness of the sentencing remarks cannot be taken as an indication to the contrary. This was a very experienced judge who had to sentence the appellant for an active role in a murder by a group of young (and not so young) males armed with knives. The minimum term which he reached was, in our judgment, consistent with proper allowance for the appellant's age and lack of maturity.[37]The final ground is that the appellant's minimum term was an increase of one-third from the starting point of 12 years. In contrast, the minimum term applied in the case of Williams was 26 years, representing an increase of only one year from the starting point in his case which was 25 years. The argument is that this was an unjust disparity. Moreover, it demonstrates a failure to take an individualised approach to the appellant's case. Both the previous and the current guideline require an individualistic approach to the sentencing of somebody of the age of the appellant when he committed the offence. Williams, although only 19 at the time of the offence, was subject to a starting point of 25 years because he brought a weapon to the scene. It is argued that to draw any parallel between his case and the appellant's case is wrong because that focus is on a need for parity with adult co-defendants and on general deterrence factors which justify the starting point of 25 years as applied to adults.[38]We are satisfied that this argument is without any substance. As we have said, the starting point of 12 years as applied to any offender under the age of 18 was a blunt tool. It could not possibly encompass every level of gravity of the offence. Inevitably, where a child had committed a murder involving the kind of factor for which Schedule 21 provided a significantly higher starting point in the case of an adult, the minimum term, in all probability, would be significantly greater than 12 years. This would not be in order to achieve parity with adult defendants. Rather, it would be to reflect the culpability of the child defendant. The extent to which the minimum term exceeded the starting point of 12 years would depend on the facts of the particular case. In this instance the judge identified the aggravating factors which were common to all defendants. In the appellant's case he had to take account of the fact that the appellant was party to the taking of knives to the scene. That was not something factored into the starting point of 12 years. That feature alone in the case of an adult involves an increase in the starting point of 15 years to 25 years. In our judgment it clearly required is a significant uplift in the appellant's case.[39]General deterrence is not a sentencing purpose applicable to those under the age of 18. However, as the judge observed, "knife crime is a scourge of modern society". It is a scourge visited upon society in substantial measure by young men under the age of 18. We are quite satisfied that the introduction of the 25 year minimum term was in large measure an expression of public policy, namely the need to express public disapproval of the carrying of knives. That is something which applies equally to those under 18 as well as over 18.[40]It is argued that there were mitigating factors specific to the appellant which meant that the uplift of the kind that was actually applied was not justified. We do not need to set them out in detail. In summary, they were: no knife taken to the scene by the appellant; his age; his immaturity; his lack of direct involvement in the attack inside the club; his good character. In large measure they were referred to in terms by the judge. They were not sufficient to reduce the gravity of the offending to the extent now submitted on behalf of the appellant. The assessment of the impact of mitigating factors is primarily a matter for the sentencing judge. That is particularly so when the judge has conducted a full trial. We would have to be satisfied that the judge had fallen into clear error in his assessment before we could interfere with the outcome. We are not so satisfied in this case. Conclusion[41]As we have already mentioned, the appellant's minimum term was subject to review by reference to the provisions of Smith v Secretary of State for the Home Department. In 2023 Johnson J, by reference to the criteria in Smith, found that the appellant had made exceptional progress. He reduced the minimum term by 8 months so that it currently stands at 15 years and 4 months. That is the minimum term with which we are now concerned. In view of our conclusions in respect of credit for time served and for time spent on curfew, the minimum term of 15 years 4 months must be reduced by one year.[42]We therefore allow the appeal to this extent. We quash the minimum term of 15 years 4 months as it now stands and we substitute a minimum term of 14 years and 4 months. Other than that, we do not interfere with the sentence imposed in December 2012. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400 Email: Rcj@epiqglobal.co.uk

Cited in 1 later judgment