R v Brandon Dalkin [2025] EWCA Crim 117

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[2025] EWCA Crim 117

Venue Royal Courts of Justice

Strand

London

WC2A 2LL

Date Tuesday 28 January 2025

Before

LORD JUSTICE LEWES

MRS JUSTICE YIP

MR JUSTICE FOXTON

Between

REXCrown

Between

BRANDON DALKIN

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Computer Aided Transcript of Epiq Europe Ltd,

Lower Ground, 46 Chancery Lane, London WC2A 1JE

Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

_________

MS HELEN TOWERS appeared for Appellant

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JUDGMENT

[1]This application for an extension of time in which to seek leave to appeal against sentence has been referred to the full court by the single judge, who also granted a representation order.

[2]The matter concerns two offences of robbery committed on 18 February 2019, when the applicant was aged 19.

[3]The applicant first appeared before the Crown Court at Teesside on 1 October 2019, when he pleaded not guilty. His trial began on 2 March 2020, but the jury were discharged on the second day for reasons we need to go into.

[4]After the Covid pandemic interrupted jury trials and the co-defendant subsequently tested positive for Covid causing a further delay, the trial was not relisted until 13 June 2022. On that date the applicant changed his pleas to guilty.

[5]The applicant was sentenced on 20 February 2023, by which time he was aged 23, to 6 years and 8 months' imprisonment on each count to run concurrently.

[6]The applicant submitted his application for leave to appeal on a form dated 11 December 2023, having prepared his grounds of appeal himself. His appeal was 266 days out of time. The applicant states that he first sent an application on 10 March 2023 but heard nothing so rang the Court of Appeal office to find out what was happening. He says he was told his application must have got lost and was advised to fill out a further form and give reasons for filing it out of time. Enquiries of the court office have revealed that there was no record of any previous contact with the applicant prior to his lodging his form. However, we are informed that there would be no means of recording any contact with the applicant before an application was received and a case created. As such, the applicant's claim to have contacted the office cannot be confirmed or refuted.

[7]The single judge considered that the sentence was one which ought to be reviewed by the full court, subject to the need for a very substantial extension of time. In the particular circumstances of this case, we have taken the view that we should consider the merits of the appeal as though the application had been submitted in time. It should not be assumed that such a course will always be appropriate where an applicant claims that an earlier application has been lost. Time limits are important and must be observed. There will be cases where it is important to explore a claim that an earlier form has been lost in greater detail before hearing submissions on the merits, but this was not necessary on this occasion. We turn then to the substance of the appeal.

[8]On 18 February 2019 at around 6 pm, the two complainants (a boy aged 14 and an adult) were with friends fishing at a pond. They were approached by the applicant and his co-defendant, Jay Bryson. The applicant pulled out a knife, pointed it at the 14-year-old and demanded a gold ring which the boy was wearing. Bryson encouraged the applicant to stab the boy if he did not give up the ring. In an attempt to divert attention from his younger friend, the adult complainant handed over his iPhone. This did not stop the demands for the ring and the boy handed it over. The applicant and Bryson then turned to the adult complainant and told him to clear his phone and provide the pass code. The applicant still had the knife and threatened to "slash him up" unless he handed over £500. The complainant handed over his bank card and the PIN number. The applicant and Bryson then walked off. The police were contacted and the applicant and Bryson were pointed out and later identified during formal identification procedures.

[9]In interview the applicant said he knew nothing of the robbery and that although he had been at the pond with Bryson, he did not have a knife with him. Bryson also denied being responsible for the robbery.

[10]The judge had victim impact statements from the two complainants.• The younger had made two statements. In his first statement, made six months after the incident, he said he was terrified during the robbery. In the weeks following, he had difficulty sleeping and experienced flashbacks and was getting tension headaches. He would not leave the house and his schoolwork was affected. He avoided fishing. His later statement was made in 2022 (when he was aged 17) and he described a significant impact on his teenage years. He said that he had stopped fishing and socialising, and he had been trying to build up his confidence and get over his anxieties over the past three years.

• In a statement made seven months after the incident, the adult complainant stated that the robbery had left long-term effects. In the first few weeks he experienced flashbacks and would lie awake ruminating. He was exhausted and missed a lot of work. His family life was also affected. He was anxious when going out and had given up going fishing. He began drinking heavily to block the memories out. He was considering engaging in counselling.

[11]The applicant had seven convictions for twelve offences spanning from 2016 to 2021. His earlier offences included driving offences and possession of drugs. In February 2019 he was sentenced to a community order for assault of an emergency worker. In February 2021 he was sentenced to a community order for possessing a knife. He had not previously had a custodial sentence.

[12]The judge had the benefit of a pre-sentence report, which was described in written defence submissions as a "refreshingly optimistic document". The report described difficulties the applicant had faced in his past and noted significant changes had occurred since the commission of these offences. The applicant, who was only 19 at the date of the offending, had grown up surrounded by negative influences amongst his family and friends. He had experienced a difficult childhood. The applicant had suffered serious injuries in a road traffic accident, impacting on his capacity for physical work. He had been assessed as unfit for work, but the author of the report considered him as bright and capable of achieving goals. It was suggested that with appropriate guidance he could gain employment.

[13]In the months leading up to the robberies the applicant had experienced two deaths within his immediate family: his uncle took his own life. and his brother, who the applicant was said to have idolised, died following an altercation outside a nightclub.

[14]The pre-sentence report noted a significant change in the applicant since the commission of the offences. He had formed a settled relationship and become a father. He was described as smitten with his infant son and had worked hard with Social Services to satisfy them that he and his partner could care for the child. He had completed the community sentences imposed on him in 2019 and 2021, engaging well with probation and demonstrating improved maturity. He had moved away from the town he grew up in, distancing himself from negative influences, and had worked with Social Services to identify safe family members from whom he could seek support.

[15]At the time of the offences the applicant was taking drugs and was under the influence of a large number of tablets, probably Valium, obtained illegally. By the time he was sentenced he was working with Social Services and his GP towards eliminating substance misuse and had a pain management plan to manage the effects of his accident. He had committed no further offences since 2019 and had demonstrated good progress overall.

[16]We have been provided with a short prison report detailing the applicant's progress in custody. We note that the very positive progress he had made before being sentenced was perhaps not maintained during the initial part of his sentence. He had two proven adjudications in 2023: one for possession of an unknown white powder and the other for using threatening or abusive behaviour. However, his recent conduct appears to have been good. He has enhanced regime status and is being considered for release on temporary licence. He is said to be motivated to engage with work on his thinking skills and is working towards release on temporary licence and his eventual release.

[17]In his sentencing remarks the judge said that the victim personal statements showed that both victims had suffered very significant trauma-based psychological and emotional harm, impacting on their lives generally and their day-to-day living. Referring to the relevant sentencing guideline the judge said that the offending undoubtedly fell into category A culpability because of the use of a knife. He said that there were solid arguments for putting the case into category 1 harm, but tempered this, finding that it fell at the lower end of category 1 or top end of category 2, giving a starting point of 7 years. Noting that the guilty pleas had been entered at the second trial, the judge allowed credit of 5 per cent for those pleas. That discount would itself have resulted in a sentence of 6 years 8 months.

[18]Having identified what he described as the starting point and the appropriate credit for plea, the judge went on to detail the mitigation available to each offender. He noted that in the applicant's case the mitigation was "very substantial". He then said:

"If I was just sentencing you as the person that you present now, then it would be a very different matter, but it is not just about you, it has to reflect what you did at the time and the impact you have had both on the direct victims of your offending and on the community."

[19]Dealing with the delay that had occurred between the commission of the offence and sentence, the judge said that the trial process was substantially the reason for the delay and that the only unusual delay was that between the guilty pleas and sentence, which did not merit any significant discount.

[20]The judge imposed the same sentences on the robbery counts for each defendant. Bryson also fell to be sentenced for another matter for which he received a consecutive sentence.

[21]By his own grounds of appeal the applicant contended that the sentence was excessive given the circumstances and the fact that this was his first offence of this sort. He also referred to the passage of time, the lack of any further offences and his changed family circumstances.

[22]Following the single judge's referral to the full court and the grant of a representation order, counsel, Ms Towers, settled revised grounds of appeal, contending:(1) The starting point was too high.

(2) The judge failed to reduce the sentence to properly reflect the applicant's mitigation.

(3) The judge failed to give appropriate credit for plea.

[23]Ms Towers developed each of those grounds in her oral submissions, for which we are grateful. She maintained that the judge wrongly categorised the harm in this case - so resulting in the adoption of too high a starting point; that he did not properly take account of the unusual and significant mitigation and the lengthy delay in this case, which also warranted some deduction; and that the judge did not give sufficient credit for plea.

[24]There is no doubt that these were two serious offences of robbery, involving threats at knifepoint to a 14-year-old boy and his adult companion, in which the boy's valuable gold ring and the adult's mobile phone were stolen. The production of a knife to threaten violence put the case into the high culpability bracket. The judge acknowledged that the categorisation of harm was less clear cut. The victim personal statements establish significant psychological harm, particularly in the case of the younger victim, who described a persisting impact three years after the incident.

[25]Category 1 applies where there is "serious" psychological harm. It appears that the judge was not persuaded that this case quite reached that threshold. However, we consider that his assessment that harm fell in the margin between category 1 and category 2 was fair. The lower end of the category A range is 7 years and the upper end of category B is 8 years. The sentence which the judge described as the starting point was 7 years. It appears he meant that such sentence reflected the seriousness of the offences, before weighing the aggravating and mitigating factors. We do not disagree with that assessment.

[26]We also consider that the reduction of 5 per cent that he allowed for the guilty pleas was appropriate. The pleas were not entered until the first day of the retrial, after an earlier trial had been aborted. The applicant can have no complaint about the limited credit allowed in those circumstances.

[27]The judge's approach to weighing the aggravating and mitigating factors is not clear from his sentencing remarks. The judge said that the applicant had very substantial mitigation to which proper consideration should be given. He did not, though, explain how he had taken the mitigation into account in arriving at the eventual sentence. It would have been helpful if the judge had set out the aggravating and mitigating factors which he took into account and explained how he balanced them in arriving at the final sentence.

[28]The essential question for us now is whether this sentence was manifestly excessive. In answering that question and given that the judge did not explicitly do so, we need to conduct the exercise of balancing aggravating and mitigating factors.

[29]It was relevant that there were two victims and that one of them was a child. However, we cannot say for sure that he was targeted due to a vulnerability. The incident lasted about half an hour, and to that extent was prolonged. This was a group activity, involving two offenders. It was the applicant who produced the knife, although the evidence does not establish that he was taking a leading role. The applicant was under the influence of drugs at the time of the offending. Although not heavily convicted, he was either on bail or at least had been released under investigation at the time for an offence of assaulting an emergency worker committed on 17 December 2018.

[30]Balanced against that, there was a significant amount of mitigation available to the applicant, as the judge acknowledged. One important mitigating factor appears to have been overlooked. The applicant was aged only just 19 at the date of the robberies. The judge had wrongly been informed that he was 20 and adopted that error in his sentencing remarks. It is well established that a sentencing judge when assessing an offender's culpability should reflect on the offender's true level of maturity at the time and make appropriate allowances. In the pre-sentence report under the heading "Offence Analysis" it was said that if a maturity assessment had been completed at the time of the offences the applicant would have been assessed as having low maturity. That had changed in the intervening period. Had the judge worked through the list of mitigating factors under the guideline, one of them was age and/or lack of maturity, which may be applicable to offenders aged 18 to 25. The judge made no reference to that in his sentencing remarks.

[31]There were other mitigating factors as well as the applicant's age and lack of maturity. It appears there was little or no planning of the offences, the applicant had a difficult background and personal circumstances, including the very recent deaths in the family and the emotional impact of that. Most significantly, he had taken steps to address his offending behaviour and to turn a corner in his life, as the pre-sentence report confirmed. He had also expressed what was assessed to be genuine remorse and shame for what he did in 2019. We agree with the submission made to the judge that the pre-sentence report was an unusually positive one.

[32]We accept the judge's assessment that much of the delay in dealing with this case was caused by the applicant's insistence on having a trial right up until the listing of the retrial. However, there was some significant delay which was not of his making. The fact is that four years had elapsed since the date of the offences. That was a significant period in the life of the applicant and coincided with him demonstrating real progress towards addressing his offending behaviour and establishing a stable family life. In all the circumstances we consider that the mitigation available to the applicant outweighed the aggravating factors such as to require a downwards adjustment from the sentence of 7 years which the judge had begun with. In our view the appropriate balance would result in a sentence of 6 years after trial. Allowing 5 per cent credit for plea and rounding downwards, as the judge did, the sentence we consider appropriate is 5 years 8 months.

[33]In all the circumstances we shall grant the extension of time sought, grant leave to appeal and allow the appeal. On each count we substitute a sentence of 5 years and 8 months' imprisonment to be served concurrently. To that extent the appeal is allowed. 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