R v Nah’shun Thomas [2025] EWCA Crim 718

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[2025] EWCA Crim 718

Venue Royal Courts of Justice

The Strand

London WC2A 2LL

Date Thursday, 22 May 2025

Before

LORD JUSTICE JEREMY BAKER

MR JUSTICE CAVANAGH

HER HONOUR JUDGE NORTON

Between

REXCrown

Between

NAH’SHUN THOMAS

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REPORTING RESTRICTIONS APPLY

Youth Justice and Criminal Evidence Act 1999, s.45

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)

_________

Mr D. Bentley KC and Ms A. Timan appeared for Applicant.

for The Crown were not represented.

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JUDGMENT

[1]Reporting restrictions have been made under section 45 of the Youth Justice and Criminal Evidence Act 1999 with respect to the identification of the victims of the robberies referred to below whilst they remain under the age of 18. Where it is necessary to refer to such victims in this judgment, they have been anonymised accordingly.

[2]This is a renewed application for leave to appeal against sentence, leave having been refused by the single judge.

[3]On 15 May 2024, the applicant was sentenced at Croydon Crown Court by His Honour Judge Peter Gower KC for two offences of robbery and one of murder. He had pleaded guilty to the offences of robbery and was convicted of murder after a trial. His Honour Judge Gower KC had been the trial judge. For the offence of murder, the applicant was sentenced to custody for life with a minimum term of 25 years and three months, less 479 days spent on remand. For each of the two offences of robbery, the applicant was sentenced to 30 months' detention in a young offender institution to run concurrently with the sentence for murder. The application for leave to appeal relates only to the sentence for murder.

[4]In sentencing the applicant for murder, the judge took account of the criminality involved in the two robbery offences. No objection is taken to this course of action which was plainly appropriate in the circumstances.

[5]The applicant has been represented before us by Mr David Bentley KC and Ms Annabel Timan, acting pro bono. We are grateful to them for their assistance. The Facts

[6]All three offences were committed on the same evening, 30 December 2022. They were committed jointly by the applicant and his younger half-brother, Nyron Thomas. Nyron Thomas was also convicted of murder and was sentenced to be detained at His Majesty's pleasure for a term of 19 years and 10 months, less the 479 days served on remand. At the time of the offences the applicant was 19 years old. His 19th birthday had been about a week before. Nyron Thomas was just under 16½ years old. The brothers did not live together but lived in the same area of London.

[7]The first robbery took place at about 5.30 pm in Peckham. The applicant and Nyron Thomas were riding on the same bicycle when they saw a 14-year old boy ("C1"). At the applicant's suggestion, they decided to rob him. The applicant and Nyron were wearing a balaclava and covid mask respectively. They surrounded their victim. The applicant threatened to beat up and stab C1. C1 handed over his mobile phone and put in his iCloud password which enabled the applicant to reset the phone. The applicant sold this phone about an hour later for £200.

[8]Later the same evening, the applicant and Nyron Thomas were out in the Peckham area again, this time on two bicycles. They surrounded and confronted two 14-year old boys and demanded that they hand over their mobile phones. The applicant and Nyron Thomas acted in a physically threatening way towards the two boys. The applicant gestured as if to punch the first of the two boys ("C2"), and Nyron Thomas placed his hand inside the waistband of his trousers to indicate that he was concealing a weapon there. C2 handed his iPhone over to the applicant and Nyron, having locked out of iCloud at their request. The other boy, C3, offered to hand over his phone but it was a Samsung and Nyron Thomas indicated that they were not interested in it. The iPhone was also sold by the applicant the next day.

[9]Shortly after the second robbery the applicant and his brother cycled to Peckham Rye Park. The murder victim, Kalabe Legasse, was sitting on a bench in a dark and quiet area of the park, talking to a friend on his mobile phone. He was on his own. The applicant and Nyron Thomas set about robbing Mr Legasse of his mobile phone. The friend to whom Mr Legasse was talking heard a person - later identified as Nyron Thomas - asking Mr Legasse who he was and what he was doing there before telling him to take out his phone, and saying, "I have my nank with me, don't make me mad." ("Nank" is a slang word for a knife). At that point Mr Legasse ended his call. A witness in a different part of the park heard raised voices but there were no witnesses to the murder itself. Mr Legasse was killed by a single blow to the heart. He was 29 years old.

[10]The applicant and Nyron Thomas were sentenced on the basis that it was Nyron Thomas, not the applicant, who delivered the fatal blow with a large knife which Nyron had been carrying. The force used in the stabbing was such that the knife penetrated to a depth of 11 centimetres, cutting through cartilage and displacing and fracturing a rib. After the stabbing, the applicant and his brother fled the scene without calling emergency services. They took Mr Legasse's phone with them and it was sold by the applicant the following day. The knife was subsequently found by the police in the bedroom of the brother's grandmother. It was a large "zombie-style" knife.

[11]The applicant was of previous good character. Sentencing Remarks

[12]At the sentencing hearing the judge had before him a pre-sentence report for the applicant and for Nyron, defence sentencing notes, character references, and a letter written by the applicant. In his careful and thorough sentencing remarks, the judge took as his starting point for the sentencing of the applicant, before taking into account any aggravating or mitigating features, the minimum term of 30 years. This was because as the murder took place in furtherance of a robbery it was a murder for gain, and so was an offence of particularly high seriousness as defined by paragraph 3(2)(c) of Schedule 21 to the Sentencing Act 2020. In such cases the appropriate starting point when determining the minimum term is 30 years. As Nyron was 16 years old at the time of the murder, the appropriate starting point for him was 20 years pursuant to paragraph 5A(2) of Schedule 21. The judge said that there was no question of Nyron stabbing Mr Legasse in self-defence and, giving Nyron the benefit of the doubt, sentenced him on the basis that he simply did not care whether he killed Mr Legasse or not, rather than on the basis that he had intended to kill Mr Legasse.

[13]As for the applicant, the judge said that it was clear from the jury's verdict that they were sure he had intentionally assisted or encouraged Nyron to attack Mr Legasse, that he intended that Nyron would attack Mr Legasse with the intention of causing him at least really serious bodily harm should it be necessary or desirable to do so. The judge was satisfied that the applicant knew that Nyron had a knife with him. The judge accepted, however, that the applicant may not have intended that Nyron would use the knife with intent to kill.

[14]The judge said that he had taken account of the recent judgment of the Court of Appeal in R v Kamarra-Jarra

[2024] EWCA Crim 198

, [2024] 2 C.App.R (S) 19. This judgment gives guidance to sentencing judges as to how they should approach the sentencing of co-defendants in circumstances in which one is below and one is above an age which is a significant cut-off for sentencing purposes.

[15]So far as mitigation is concerned, the judge took account of the applicant's age. Moreover, the judge said that the applicant was immature for his age. The judge noted that the writer of the pre-sentence report said that the applicant's emotional presentation and intellectual development was akin to that of a younger person. The judge also noted that his mother had said that he was always viewed as the younger sibling to Nyron. The applicant and Nyron witnessed domestic violence as young children and did not benefit from a male role model when growing up. The judge gave credit to the applicant for his previous good character, and for his guilty pleas to the offence of robbery.

[16]The judge decided that the 30-year starting point should be discounted to reflect the applicant's immaturity and in order to ensure that the minimum term in the applicant's case bore some comparison with that imposed on his brother. The judge took into account that, although he did not inflict the fatal blow and may not have intended that Nyron would use the knife with intent to kill, the applicant was the older brother by more than two and a half years and the applicant had encouraged Nyron to do what he did. The judge said that if he had been sentencing the applicant for murder on its own the appropriate minimum term would have been 24 years. He said that this sentence had to be increased to reflect the criminality involved in the two robberies, whilst bearing in mind the principle of totality. The judge decided upon an increase of 15 months, making a total sentence of 25 years and three months, less time served on remand.

[17]As for Nyron, the judge said that if he had been sentencing him for murder alone, and taking account of the aggravating and mitigating features, he would have sentenced Nyron to a minimum term of 19 years. He increased this by 10 months to reflect the two robberies, resulting in a total sentence of 19 years and 10 months, less time served on remand. Grounds of Appeal

[18]The applicant does not dispute that the appropriate starting point for him in accordance with Schedule 21 was 30 years or that the appropriate starting point for his brother was 20 years. The grounds of appeal rely upon three interconnected matters in support of the submission that the minimum term imposed upon the applicant was manifestly excessive. The first is the disparity in sentences imposed upon the applicant and his brother Nyron. It was submitted that insufficient regard was given by the judge to parity of sentence. Whilst the applicant was two and a half years older than his brother, it was Nyron who was the stabber and, it was submitted, it was clear that the applicant was deeply immature and was frequently treated by his family as if he were the younger of the two brothers. The second matter was that the judge had made insufficient allowance for the elder sibling's immaturity; and the third was that the judge did not make sufficient allowance for the fact that the applicant's role was limited to encouragement and/or assistance. Mr Bentley submitted that in this case the applicant (the older brother) was in reality no more mature than his younger brother. Discussion and Conclusions

[19]Parliament has determined that there should be a 10-year difference in the starting point for those who have been convicted of murder for gain who are aged over 18 years as compared with those who are aged 15 or 16. This can give rise to difficult sentencing decisions because sentencing judges must respect the will of Parliament. But they must also take account of the principles of fairness and must seek, if possible, to avoid excessive disparity of sentencing between offenders who are otherwise in a similar position.

[20]This issue was addressed by the Court of Appeal in Kamarra-Jarra. In that case, the Lady Chief Justice, sitting with Lord Justice Holroyde (Vice President of the Court of Appeal, Criminal Division) and Mrs Justice Stacey, said:

"28 As for age, paragraph 1.5 of the Sentencing Council Guideline for Sentencing Children and Young People reads: ' ... Children and young people are not fully developed and they have not attained full maturity. As such, this can impact on their decision making and risk-taking behaviour. It is important to consider the extent to which the child or young person has been acting impulsively and whether their conduct has been affected by inexperience, emotional volatility or negative influences. They may not fully appreciate the effect their actions can have on other people and may not be capable of fully understanding the distress and pain they cause to the victims of their crimes. Children and young people are also likely to be susceptible to peer pressure and other external influences and changes taking place during adolescence can lead to experimentation, resulting in criminal behaviour.

(S) 101 ("

Peters") at [11], and R v Matthews

[2005] EWCA Crim 2399

;

[2006] 1 Cr App R(S) 88

at [6]. 30 In R v Clarke and Others

[2018] EWCA Crim 185

, Lord Burnett of Maldon said at [5]:

'Reaching the age of 18 has many legal consequences, but it does not present a cliff edge for the purposes of sentencing. So much has long been clear. The discussion in R v Peters [2005] EWCA Crim 605, [2005] 2 Cr App R(S) 101 is an example of its application: see paras [10]-[12]. Full maturity and all the attributes of adulthood are not magically conferred on young people on their 18th birthdays. Experience of life reflected in scientific research (e.g. The Age of Adolescence: ... 17 January 2018) is that young people continue to mature, albeit at different rates, for some time beyond their 18th birthdays. The youth and maturity of an offender will be factors that inform any sentencing decision, even if an offender has passed his or her 18th birthday. ... ' 31 More recently in R v ZA [2023] EWCA Crim 596 ("ZA"), at [52] May J, Judicial Lead for Youth Justice, said this: '

It has been recognised for some time that the brains of young people are still developing up to the age of 25, particularly in the areas of the frontal cortex and hippocampus. These areas are the seat of emotional control, restraint, awareness of risk and the ability to appreciate the consequences of one's own and others' actions; in short, the processes of thought engaged in by, and the hallmark of, mature and responsible adults. It is also known that adverse childhood experiences, educational difficulties and mental health issues negatively affect the development of those adult thought processes. ... ' 32 Further, where two or more offenders fall to be sentenced in respect of the same murder, some of whom are just over 18 and some of whom are just under 18, it would be neither just nor rational for significantly divergent terms to be imposed on grounds of age alone: see R v Taylor (Joel)

[2017] EWCA Crim 803

; [2008] (sic)

[2018] 1 Cr App R(S) 4

("Taylor") at [8]. The proper approach is to move from each starting point to a position where any disparity is no more than a fair reflection of the age difference: see Attorney General's References Nos 143 and 144 (R v Brown and Carty)

[2007] EWCA Crim 1245

;

[2008] 1 Cr App R(S) 28

at [27]. 33 The advent of section 127 does not dictate a different approach when sentencing either a defendant who has just turned 18 or who is just under 18. It is never just a question of mathematical age. Age governs the normal starting point for a minimum term, but not the assessment of culpability by reference to maturity. The court is always obliged to look beyond mere chronological age. ... 35 In Attorney General's Reference (R v SK)

[2022] EWCA Crim 1421

;

[2023] 1 Cr App R(S) 26

, a case involving a 16½ year old convicted of murder, William Davis LJ noted at [27] that the principles set out in Peters remain valid, and in particular referred to what was said there at [11]: 'Therefore although the normal starting point is governed by the defendant's age, when assessing his culpability, the sentencing judge should reflect on and make allowances, as appropriate upwards or downwards, for the level of the offender's maturity.'"

[21]The reference in paragraph 33 of Kamarra-Jarra to section 127 is to section 127 of the Police Crime and Sentencing [and Courts] Act 2022 which, for the first time, introduced a sliding scale of starting points for minimum terms for children convicted of murder, taking into consideration the nature of the charge and the seriousness of the murder. That sliding scale is now set out in paragraph 5A of Schedule 21 of the Sentencing Act 2020.

[22]It is clear that, in the present case, the judge took account of the guidance given by the Lady Chief Justice in Kamarra-Jarra. As we have said, he specifically said that he did so in his sentencing remarks. He also said that he discounted the sentence that he imposed on the applicant in order to ensure that the minimum term in the applicant's case bore some comparison with that imposed on his brother.

[23]In our judgment, it is not arguable that the judge erred in failing to take proper account of the impact of the different starting points that apply to the two defendants. He plainly bore it in mind. He looked beyond mere chronological age.

[24]It should also be noted that the observations of the Lady Chief Justice in Kamarra-Jarra were made in the context of a case in which the appellant was just over 18, at 18 years and four months old at the time of the murder, whilst his co-defendants were, respectively, 17 years and 10 months old and 17 years and nine months old. The difference in age between the defendants in that case was, therefore, no more than six or seven months. In contrast, the difference in age between the defendants in the present case, as Mr Bentley fairly acknowledged, is much more substantial, being approximately two and a half years. Moreover, the difference in starting points for defendants who are 17 or 18 years old respectively for murders of particularly high seriousness is much narrower than the difference for defendants who are respectively 16 and 19 years old. The starting point in such a case for a 17-year old is 27 years, only three years less than the 30-year starting point which applies to a defendant who is 18 or 19 or older. In contrast, the starting point for a 15 or 16-year old is 20 years.

[25]It is likely, if not inevitable, therefore, that in order to give effect to Parliament's intentions the sentencing exercise that applies to a 16-year old and to a 19-year old will result in sentences that are considerably further apart than would be the case if one was not much short of their eighteenth birthday at the time of the offence and the other had not long passed their eighteenth birthday.

[26]Again, it is not arguable that the judge failed to make adequate allowance for the applicant's immaturity and the fact that he was not the stabber, when deciding on the minimum term of 25 years and three months less time spent on remand. The judge was well aware of the facts of the case and he took full account of the evidence before him of the applicant's immaturity. This was a gratuitous and pointless murder in the course of the robbery of a member of the public of his mobile phone. It took place in a public location, a park, at night, in the dark. There were two offenders; they acted as a team. They had taken a knife to the scene. The applicant knew that his brother was carrying a knife. They made no attempt to seek help for the victim when he was stabbed. It would have been obvious to them that he was very seriously injured, if not dying. They thought only of themselves making their getaway. The applicant even went so far as to sell the victim's phone the following day.

[27]The sentence had to take account of the applicant's offending and the two robberies that had taken place on the same evening. The applicant was the principal aggressor in at least one of those robberies. There was no evidence that the applicant had in some way been groomed by his brother or had been pressurised into accompanying him in the robbery spree.

[28]In all of the circumstances, it is not arguable that a sentence that was nearly five years lower than the starting point set out in Schedule 21, and one which also took account of two robbery offences, was manifestly excessive for the murder that was committed by the applicant. This was a significant discount to take account of immaturity and disparity.

[29]For these reasons permission to appeal is refused. __________