R v Oscar Castano-Coloque [2025] EWCA Crim 36

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.

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Between

R EXCrown

London

WC2A 2LL

ON APPEAL FROM THE CROWN COURT AT CROYDON

(HIS HONOUR JUDGE PETER GOWER) [T20237068]

Case No 2024/01087/A1 Tuesday 4 February 2025

NCN [2025] EWCA Crim 36

B e f o r e:

LADY JUSTICE WHIPPLE DBE

MRS JUSTICE McGOWAN DBE

HIS HONOUR JUDGE THACKRAY KC

(Sitting as a Judge of the Court of Appeal Criminal Division)

____________________

- v -

Between

OSCAR CASTANO-COLOQUE

____________________

Computer Aided Transcription of Epiq Europe Ltd,

Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE

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

_____________________

Miss A Lewis KC appeared for Appellant

Mr E Brown KC appeared for Crown

____________________

J U D G M E N T

Date 2025-02-04

[1]On 9 February 2024, in the Crown Court at Croydon, the appellant pleaded guilty to murder. On 22 February 2024, he was sentenced by His Honour Judge Peter Gower to life imprisonment, with a minimum term of 25½ years (less time spent on remand). He was sentenced to two years' imprisonment, to be served concurrently for having a bladed article (an associated offence) to which he had also pleaded guilty.

[2]He now appeals against sentence with the leave of the single judge.

The Facts

[3]The appellant had been in a relationship with a woman, "MT". He thought that MT was pregnant with their child. That relationship had broken down. It was clear from messages from the appellant to MT that the appellant wanted the relationship to continue and found it difficult to accept that the relationship was over.

[4]On 28 February 2023, MT was out with a man named Rafioullah Abdul Malik. It appears that MT sent the appellant pictures of her and Mr Malik together in a restaurant. The appellant knew where MT and Malik were, possibly from messages that he had received from MT. He set off from his grandmother's house at around 9.15 pm on a bicycle to find them. At around 9.40 pm MT and Mr Malik boarded a number 94 bus going westbound along Oxford Street in London. The appellant cycled up to that bus, abandoned his bicycle and boarded the bus. This was around four minutes after MT and Mr Malik had boarded it. CCTV from the bus showed the appellant going up the stairs of the bus. As he reached the top deck, he pulled out a knife that he had concealed in his clothing and went directly to where MT and Mr Malik were sitting. The appellant pushed MT out of the way and immediately attacked Mr Malik, stabbing him repeatedly in the head, despite MT's attempts to intervene. The appellant then went down the stairs of the bus, followed by MT, and banged on the doors of the bus in an attempt to open them. The knife was still in the appellant's hand at this point. The knife was covered in blood, as was the appellant's hand. Mr Malik followed down the stairs, bleeding heavily. MT was heard to say, "What the hell are you doing?", to which the appellant replied, "I am dangerous", before the bus came to a stop and the appellant and MT got off. CCTV showed the appellant leaving the bus, discarding his distinctive red coat, and throwing the knife that he had used in the attack into a bin. He then went to Oxford Circus tube station from where he went to his hostel and then to a relative's address.

[5]Mr Malik was helped from the bus and was given first aid at the scene. He sustained multiple lacerations to his head and quickly lost consciousness. Emergency services arrived and he was rushed to St Mary's Hospital in Paddington. He suffered a traumatic brain injury and went into a deep coma. His condition deteriorated and he died on 21 March 2023 when life support was withdrawn. A post-mortem examination revealed four sharp force injury wounds to his head. One stab wound had penetrated the left temple bone and had gone through the brain tissue of the left temporal lobe, breaching the internal carotid artery to a depth of around 6.5 centimetres. He also had defensive injuries to his forearms. His death was brought about by multiple organ failure due to the injuries that had been inflicted. He was 25 years old when he died.

[6]The appellant was arrested on 3 March 2023. In interview he gave no comment to questions asked by the police.

Sentence

[7]The appellant’s date of birth is 17 December 2002 and he was 21 years old at sentence. He had eight convictions for eight offences spanning the period from 2 November 2020 to 22 October 2022. His relevant convictions included two offences of possession of an offensive weapon: the first on 2 November 2020 where, in the North London Juvenile Court, the appellant was sentenced to a four month referral order for possession of a knife in a public place; and the second on 1 September 2021 when, in the North London Magistrates' Court, the appellant was sentenced to a community order for possessing an offensive weapon in a public place.

[8]The judge had no pre-sentence report before him. He considered it unnecessary. We, too, consider it unnecessary to obtain such a report.

[9]The judge had a large number of psychiatric reports before him, many of them from Dr White, instructed for the defence. The first was dated 3 May 2023 and the most recent was dated 17 February 2024. He also had two psychiatric reports from Professor Blackwood, instructed by the prosecution. The first was dated 7 August 2023, and the second was dated 27 October 2023.

[10]Dr White had initially thought that the appellant was not fit to plead and that he might be suffering from a psychotic illness. Dr White changed his view when he read transcripts of phone calls between the appellant and family members which had been recorded while the appellant was held on remand. From those transcripts Dr White concluded that the appellant had been feigning mental illness and was indeed fit to plead; he was not psychotic.

[11]Professor Blackwood had maintained throughout that the appellant was fit to plead. He doubted that either there was a psychosis or that mental impairment had contributed in any way to the offending.

[12]The judge had the benefit of CCTV footage showing the events on the number 94 bus and on Oxford Street. We, too, have reviewed that CCTV footage.

[13]The judge had a Victim Personal Statement from Jan Khomerkhel, a close friend of Mr Malik, who spoke of Mr Malik's escape from Afghanistan as a refugee, and of the loss felt by all Mr Malik's family in light of his death. Another close friend of Mr Malik, Sohail Sheikh, also provided a statement.

The judge identified certain aggravating features in the offending:

[14]that the appellant had armed himself with a knife with the intention of finding the man who was with MT and using that knife to attack him which, the judge said, demonstrated a substantial degree of premeditation; that the attack took place on a bus, with others nearby in a busy part of Central London, exposing members of the public to a risk of injury if they intervened; that the appellant attempted to hide the evidence and conceal his responsibility for it by disposing of the knife and the jacket; and that the appellant had previous convictions, including convictions for possession of knives.

The judge identified certain mitigating features:

[15]that the appellant was only 20 years of age at the time of the offence, noting that the appropriate starting point would only have been two years lower if he had been 17; that none of his previous convictions had been for violence, or had resulted in a custodial sentence; that the appellant had had a particularly difficult upbringing, at times being removed from the care of his parents; that in Dr White's view the appellant was suffering from a personality disorder which affected his ability to form balanced judgments and considered decisions, which disorder was itself the consequence of adverse experiences as he was growing up. The judge considered the mitigation to be derived from his mental condition to be limited because on the night in question, the appellant was thinking clearly and was in full control when he set out with the knife.

[16]As to the circumstances of the offending, the judge accepted that MT had sent a photograph of herself with Mr Malik which had acted as a "trigger" for the appellant to act as he did. The judge further noted that to his credit the appellant had shown some genuine remorse, although belatedly. However, the judge said that this, too, was tempered by the fact that he had tried to deceive the psychiatrists as to his true mental state.

[17]The judge accepted that the appellant had only intended to cause serious bodily harm, rather than to kill Mr Malik, although, again, this was a limited point in the appellant's favour, given the ferocity of the attack. The judge noted that the appellant was making good use of his time in custody.

[18]The judge said that the appellant was entitled to five per cent credit for his guilty plea which was entered on the working day before trial was due to commence.

[19]The sentence was fixed by law as one of life imprisonment. The starting point for the minimum term was 25 years, pursuant to sections 321 and 322 and paragraph 4 of Schedule 1 to the Sentencing Act 2020, because this was a case where the appellant had taken a knife to the scene.

[20]In light of the mitigation and the aggravation, the appropriate minimum term was 27 years, before credit for plea. After credit, it was 25 years and six months (less the 355 days spent on remand).

The Grounds of Appeal

[21]By grounds of appeal drafted by Miss Lewis KC, who appeared below as before us, the sentence is said to be manifestly excessive for the following three reasons:(1) The judge should not have aggravated the already elevated starting point based on the aggravating features identified; or alternatively, should not have elevated the starting point to the extent that he did.

(2) The judge failed properly to reflect the mitigation advanced on the appellants behalf.

(3) The judge failed to give sufficient weight to the mitigating factors that had been identified by the defence.

[22]In her oral submissions before us, Miss Lewis has concentrated in particular on the first ground.

[23]The prosecution lodged a Respondent's Notice in which they submitted that the judge correctly considered all relevant factors and followed all relevant guidance. He was entitled to conclude that the aggravating factors outweighed the mitigation. Mr Brown KC has supported those arguments today. He contends that, although the sentence imposed was robust, it was not manifestly excessive.

[24]We would wish to thank both counsel for their considerable assistance on this appeal.

Discussion

[25]The starting point of 25 years catered for many of the circumstances of the appellant's offence, but in our judgment the judge was entitled to identify a number of specific aggravating factors and so to go up from the 25 year starting point.

[26]First, although the fact that the appellant took a knife to the scene was already reflected in that starting point, the judge was entitled to find aggravation in the notably premeditated nature of the attack, exemplified by the way that the appellant took the knife, tracked the couple as they travelled on the bus, and targeted Mr Malik.

[27]Secondly, and accepting that it is not unusual for knife crimes such as this to occur in public places, the judge was entitled to find that the particular location of this offence was an aggravating feature. It took place on the top deck of a bus, with members of the public sitting close by, unable to get away, liable to be deeply shocked and traumatised by what they saw and endangered if they came to Mr Malik's assistance. These points weighed in the balance against the appellant. This case was different on its facts from R v Benson

[2017] EWCA Crim 120

, on which Miss Lewis relies and we have not been assisted by that authority. We reject the criticism that the judge double counted factors which were already built into the statutory starting point for the minimum term.

[28]The third aggravating factor was the appellant's previous convictions. His criminal record spoke for itself and was plainly an aggravating factor, although we accept Miss Lewis' submission, as indeed the judge did, that the appellant's previous record contained no offences of violence and he had not previously received a custodial sentence, and that the two relevant knife offences were committed when the appellant was a minor.

[29]Fourth, the appellant had thrown his jacket and knife in the bin and had therefore sought to conceal what he had done, so that this too amounted to some aggravation, accepting that it is not the most egregious example of attempted concealment.

[30]In light of these points, the judge was entitled to increase the notional minimum above the statutory starting point.

[31]The judge then considered mitigation. The appellant's young age was an important factor to take into account, as was his dismal upbringing and lack of life chances. He had expressed remorse, belatedly, and, as he stood before the court, he accepted responsibility for his actions. The judge found that he lacked an intention to kill, which was a point in his favour, albeit a small one given the ferocity of the attack, as the judge noted. The judge acknowledged all of those factors in the appellant's favour.

[32]Miss Lewis argues that the judge wrongly conflated the appellant's mental health problems with his impoverished childhood. She submits that these were, properly analysed, two separate mitigating factors. However, the judge plainly had both aspects in mind and we are not persuaded that the judge overlooked either of these factors. He said (at 5D of the sentencing remarks):

"I accept that you have had a particularly difficult upbringing and that the personality disorder that Dr White diagnoses you as having, the result of adverse experiences as you were growing up, may affect your ability to form balanced judgments and considered decisions."

[33]Miss Lewis also says that the judge should have given more credit for the fact that the appellant was, to an extent, provoked by the photographs and messages received from MT on the evening. But, in our judgment, the judge dealt with this reasonably when he noted in his sentencing remarks that those features provided the "trigger" for the appellant to act in the way that he did. We also note the judge's conclusion that he was quite satisfied that "you were thinking clearly and in full control of your actions" at the point that he committed these offences, which limits the weight to be given to the circumstances which led up to this offending.

[34]We deal with two points set out in Miss Lewis’ written argument. She submitted that the judge should have applied the Sentencing Council's Guideline on Sentencing Offenders with Mental Disorder, Developmental Disorders or Neurological Impairments, on the basis of the psychiatric evidence before him. However, paragraph 11 of that guideline is explicit in requiring a "sufficient connection" between the impairment and the offending to be demonstrated before any reduction in culpability can be accorded. The judge did not find any such connection. Given the state of the psychiatric evidence, that comes as no surprise. The psychiatric evidence, taken as a whole, showed that the appellant fully appreciated what he was doing and intended to inflict substantial harm. There is no evidence to support a reduction in culpability by reason of mental impairment and the Guideline is not applicable; the evidence of mental disorder went to mitigation.

[35]Miss Lewis also argued in her written submissions that the judge should have taken express account of the Sentencing Council's Guideline on Sentencing Children and Young People, combined with authorities which emphasise that maturity is a flexible concept and it is not necessarily achieved the moment a person turns 18: see, as an example, R v Clarke

[2018] EWCA Crim 185

. We accept the submission that the appellant's youth was a relevant factor, particularly in light of his difficult experiences in childhood which might have been expected to impact on his maturation. But we note that the judge did take his youth into account and this aspect of the case was reflected in sentence.

[36]We are not persuaded that the judge was in error either in counting as aggravation something he ought not to have done, or in failing to take account of some relevant mitigating factor.

[37]However, standing back, we conclude that although the judge's approach was correct, nonetheless his resulting notional minimum term of 27 years, before credit for the guilty plea, was excessive and manifestly so, once the aggravation and the mitigation were taken into account. It either reflected an excessive uplift for the aggravating factors, or an inadequate reduction for the mitigating factors. We therefore quash that minimum term.

[38]To determine the appropriate term, we, too, start at 25 years, as required by statute. The aggravating factors identified by the judge would justify an increase to around 27 years. Once the mitigating factors identified by the judge are weighed in the balance, the appropriate figure must come down to something between 25 and 26 years as the minimum term.

[39]With the reduction of around five per cent for the guilty plea, as to which there is no challenge, we arrive at a minimum term of 24 years (less the 355 days spent on remand). That is the minimum term which we substitute. All other aspects of this sentence remain the same.

[40]Accordingly, and to that extent, this appeal against sentence 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 ______________________________