England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		27 October 2009

Tuesday 27 October 2009

THE LORD CHIEF JUSTICE:

1. This is an application by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court for review sentences which she considers to be unduly lenient. We grant leave.
2. On 30 March 2009, in the Crown Court at Southwark, before Mr Recorder Robinson QC, the offenders were sentenced in respect of three conspiracy counts: conspiracy to kidnap (count 1), conspiracy falsely to imprison (count 2), and conspiracy to blackmail (count 3). Although count 4 charged conspiracy to cause grievous bodily harm, there was no conviction on that count.
3. The sentences imposed by the Recorder, on each count to run concurrently, were as follows: Andrew Boateng, eight years' imprisonment; Yaw Darko-Kwakye, six-and-a-half years' imprisonment; Adnan Kyani, four years' detention in a young offender institution; Douglas Poku, five-and-a-half years' imprisonment; Mohammed Nawaz, six years' imprisonment; and Benjamin Boakye, four years' detention in a young offender institution. Counsel on behalf of the offenders accept that maybe the sentences are lenient, but contend that they are not unduly lenient.
4. In summary, the offenders executed a plan to kidnap 25 year old Mohsin Patel and to hold him for ransom. On 16 April 2008, Mr Patel was confronted by a mob of six men when he was outside his home address in East London. They bundled him into a car and drove him to Ilford, where they confined him within a flat, bound and blindfolded, until his rescue on the following day, 23 hours after the kidnap had taken place, by armed police. Throughout the period of his kidnap, the unfortunate victim was ill-treated, subjected to physical violence, repeatedly punched and burned with the hot blade of a knife, threatened with torture and told that he needed to arrange payment of £50,000, or that he was "finished". To implement the plan, repeated telephone calls were made to his brother, Nasir Patel. In those telephone calls Mohsin Patel was forced to plead with his brother that the ransom should be paid. Although Nasir could hear the distress that his brother was enduring, he contacted the police. Arrangements for payment were then dragged out so that eventually the police were able to identify the location at which Mohsin Patel was being held. In the end, armed officers burst into the flat to rescue him and to arrest the offenders. The judge commended the police for the way in which this operation had been mounted and seen through to its successful conclusion. Having read the papers, we share the view expressed by the Recorder on that topic.
5. At a plea and case management hearing each of the offenders pleaded not guilty. On 18 December 2008, at a mention hearing, Kyani pleaded guilty to the three conspiracy counts. On 12 January 2009, the day the trial was due to start, Poku having indicated that a guilty plea would be tendered in December, he and Nawaz entered guilty pleas. The trial was put back for one week, to 19 January. On that day Boakye pleaded guilty. Boateng and Darko-Kwakye were convicted after a contested trial. That trial included a count which charged conspiracy to cause grievous bodily harm with intent. The jury acquitted both men of that count but convicted them of the three conspiracy counts.
6. In more detail the facts are as follows. The victim worked as an assistant manager at the Carphone Warehouse store in Canary Wharf. He was deliberately targeted perhaps because (and perhaps wrongly) the offenders believed that he was a man of some means; alternatively, that he had a family which had sufficient means to pay a ransom.
7. Two or three weeks before the kidnapping, the victim encountered some hooded men in the street outside his house. At the time he attached no importance to it. However, it appears that that may have been some kind of reconnaissance carried out by the offenders.
8. On 9 April 2008, a week before the kidnap, Nawaz and Kyani purchased a BMW car. That was the car that was used during the kidnap. They travelled to Welwyn Garden City to make their purchase.
9. Two days later, on 11 April, the scene of the intended kidnap was reconnoitred. Video footage from a mobile phone subsequently seized by the police showed the newly-purchased BMW parked near the victim's home address. Kyani was sitting in the driver's seat. It was clear that Boateng and Nawaz were in the street. Although suspicion fell on Boakye as being the fourth man, there was insufficient proof. Another man was standing outside on the pavement. Cell site evidence showed that Nawaz was in the vicinity. Whichever part these different men played, unless there was a seventh member of the conspiracy (and that has not been suggested), it looks as though all six were in and about the scene of the later kidnapping on that day.
10. On 13 April 2008, Boateng purchased the mobile phone which was later used by the offenders for the purposes of the ransom demands. He made that purchase at the Carphone Warehouse store in Stratford. He used a false name but gave his own address. In due course the police found the purchase receipt.
11. On the following day, a further reconnaissance was carried out in Claude Road (the scene of the kidnap). A man walking in the street noticed that the BMW was parked nearby. On this occasion, although no positive identifications were made, the car was occupied by at least four men.
12. On 16 April 2008, the victim went to work as usual. He arrived there at 9am. He finished work at 7pm. That afternoon, at about 4.20pm, a police traffic camera captured the BMW entering the Canary Wharf complex. That was almost certainly another reconnaissance while the intended victim was at work.
13. After leaving work, the victim drove home. He parked opposite his house and left his car in the usual way. He was about to lock it when the BMW drove up, blocking his path. There were four men in the car. Each of them wore a hood. One of them got out of the car, opened a door and said to the victim, "Get in the fucking car right now". He refused. The man forced him into the car with the assistance of two other men who had come down the road on foot. The victim tried to resist, but he was bundled into the rear seat between the two passengers in the back of the car. His head was forced down towards the floor and his face was covered with his own jacket. As the car was driven off, he was told to look downwards. At this stage his Rolex watch, a ring, his Iphone and cash, altogether worth something like £10,000, as well as his wallet containing his bank cards were removed from him.
14. It was possible to demonstrate through cell site evidence that the telephone of each of the offenders was in the vicinity of Claude Road at the time of the kidnap. The inference to be drawn from all the evidence was that each of the offenders was in the immediate vicinity and directly involved in the execution of the kidnap. That conclusion is reinforced by the account given by the victim of the circumstances in which he was removed from the street.
15. The victim asked his kidnappers what they wanted. Initially they told him that they were not sure he was the right person and that when they reached their destination they would find out. From a conversation he heard at that stage, the victim had the impression that the BMW was in a convoy with a second vehicle. There is no evidence that that was the case.
16. The victim was driven to an address in Ilford. He was dragged out of the car and ordered to walk up a flight of stairs. He was taken into a flat and pushed onto a mattress in the bedroom. The flat belonged to Poku. The victim was handcuffed with his hands behind his back. Material was bound across his face. Apart from visits to the lavatory, he was to remain in this room until his rescue.
17. Cell site evidence shows that the offenders' mobile telephones were moving from the scene of the kidnap to this address, with the exception of Darko-Kwakye, who appears to have gone to North London that evening and then gone to the flat the following afternoon. As the victim was blindfolded throughout his ordeal, he was not able to say which of the offenders or what combination of the offenders were present in the flat at any particular time. An examination of text messages found on the telephones evidences that there were frequent comings and goings. The cell site evidence also suggests that Boateng and Boakye remained at the flat for the most significant periods.
18. After they arrived at the flat, the story given to the victim by the offenders was that they had been paid £70,000 by another individual to carry out the kidnapping and hold him in the flat. They said that they would hand him over, but that they would let him go if he would provide them with money or drugs. The victim said that he could obtain £10,000 for them. They regarded that as derisory. They punched him about his head and told him that they wanted £50,000. He said that he could also obtain some jewellery. They repeated their demand for £50,000. They said that they would let the victim make one telephone call. If the person he chose to call did not "come through", he was "finished". He was threatened: "We've been paid to do a job. Do you know what that means, to do a job? We'll make sure you can't write, so we're going to chop your fingers off; make sure you can't see, we're going to damage your eyes; make sure you can't hear us, we'll cut off your ears and other body parts".
19. The telephone purchased by Boateng was brought to the victim. He telephoned his brother. The first call was made at 8.20pm, not long after the BMW arrived at the safe flat. He was told what to say. The call went out on a loud speaker so that they could hear everything that was said. He told his brother that he needed £50,000 or he would not be coming home. He asked his brother to collect up all the jewellery in his room. That call was abruptly terminated by the offenders. The brother realised from the call that the victim had been kidnapped. He reported the matter to the police.
20. During the course of the evening the victim was required to make further telephone calls to his brother. In one call the two brothers spoke in Gujarati. The brother asked the victim if he was able to give any information about his whereabouts. However, when they heard the Gujarati, the offenders ordered the victim to use English. They reinforced their demand by assaulting him with a metal object, perhaps the buckle of a belt. His groans were audible to his brother at the other end of the telephone. That evening one of the offenders (and we do not know which) burned the victim on the chest with the hot blade of a knife. He was forced to divulge his PIN numbers and he was threatened by being told that they knew where his sister lived. At just after 10pm unsuccessful attempts were made to withdraw money using one of the victim's cash cards at a cash machine.
21. The pattern of calls to the brother and the assaults was repeated on a number of occasions during the night. The assaults took the form of punches to the head. Further threats were made. The victim was accused of giving false PIN numbers and he was forced to give the numbers again. Just after midnight on 17 April there were a number of successful withdrawals of cash.
22. That night must have seemed a very long one to the victim. He was yet further restrained. His legs were tied together with a belt. He was forced to lie down and was covered. At one stage he was left alone, although from time to time his captors would enter the room to check up on him. He was allowed to go to the lavatory, but when he did so he remained blindfolded. The handcuffs had become tight around his wrists and were extremely uncomfortable.
23. The next contact with the brother was a telephone call from one of the captors. The brother said that he did not have the money. The response was, "Your brother is fucked".
24. At 2am the victim was ordered to call his brother. He begged him to obtain some money. The brother said that he would need until around 12 noon. The victim said that if his captors did not receive the money they would chop off his fingers. A further call was received by the brother from the victim who said that as the ransom had not been paid, the price had increased to £70,000.
25. From 9.48am the brother's telephone contact with the captors was supervised by the police. In each call the brother said that he needed more time to obtain the money. At about 12.30pm the victim was kneed in the head by the captors and then told that they would accept £30,000. Throughout the afternoon, further calls were made to the brother who managed to convey the impression that he was trying to raise the money but needed more time. In truth, a police operation was being organised and mounted.
26. The last text message, which indicated that Nawaz was not in the flat, was sent at 5.39pm. It appears that he arrived shortly afterwards. That is consistent with the case of Nawaz that he was not present throughout the period when torture was inflicted. At 6.33pm the victim was ordered to make the last call to his brother. This time the brother said that he had the money but that he wanted to speak to one of the kidnappers. One of them came onto the telephone. At that moment armed police officers burst into the flat. All the offenders were inside. Each tried to make an escape either by fighting with the police or by climbing through a window. Nawaz and Boakye were overpowered and arrested inside the flat. The remaining offenders who had climbed through a window were pursued by officers who were waiting outside. Kyani, when challenged by armed officers, raised his hands in the air and was arrested. Darko-Kwakye and Boateng ran towards some railway lines. They were discovered hiding in undergrowth and arrested. Poku ran off when challenged by armed police and waded through a canal. However, he was seen by police officers who were posted nearby, overpowered and arrested.
27. The victim was found lying on the mattress. He was released from his restraints. In due course he was examined by a doctor. Numerous bruises and abrasions were found on his head, face, chest, arms and feet. There were a total of four burn marks to his chest and right arm.
28. In due course, each of the offenders was interviewed under caution in the presence of a solicitor. None had any comment to make to any material question. The only offender to give any information was Boakye who, in a written statement, denied being involved in any criminal activity. He said that he had been in the flat watching television before falling asleep. He had been woken when the police burst into the flat. He had been frightened and had tried to make his escape.
29. At the trial Boateng and Darko-Kwakye gave evidence in which they denied any involvement in the offences. Boateng's defence was that he had only gone to the safe house to see a friend. Darko-Kwakye claimed that although he was present when the police arrived, his presence was entirely innocent.
30. Boateng was born in June 1987. In May 2008 he was sentenced to six months' detention for driving while disqualified, possession of a bladed article in a public place, and facilitating the acquisition of criminal property. In 2005, he was cautioned for an offence of shoplifting. A pre-sentence report was prepared on him, but given that he denied the offence the interview did not provide any useful material.
31. Darko-Kwakye was born in 1984. In 2005 he was convicted of handling stolen goods and using threatening behaviour. He had been earlier cautioned for the same offence in 2003. In 2005 he was sentenced to one month's imprisonment for offences of deception. In 2006, he was sentenced to two years' imprisonment for conspiracy to defraud. A pre-sentence report in has case contained no more than a continual denial of any participation in the offences: he just happened to be in the wrong place at the wrong time.
32. Kyani was born in June 1988 and is 20 years of age. He has no previous convictions, although there is one caution for an offence of criminal damage. In his account to the author of the pre-sentence report, he sought to minimise his involvement in the offences. He did not convince the author that his explanation was true. He was unwilling to accept his responsibilities. His motive, he said, was to repay a drug dealer.
33. Poku was born in 1986. He has a number of convictions, none of which has resulted in a previous custodial sentence. Notwithstanding his guilty plea, he asserted his innocence to the author of his pre-sentence report. He claimed that he was forced to remain in the company of those responsible for the kidnap after one or more of them had threatened him with a gun.
34. Nawaz was born in January 1984. He was convicted of handling stolen goods for which he received a community order in 2004. In 2005 he was convicted of a similar offence and sentenced to two months' imprisonment. When he was interviewed for the purposes of the pre-sentence report, Nawaz accepted his participation in these offences. He said that the offences had been committed at the behest of an associate who was owed £50,000 by the victim. The money was then to be used to repay a drug dealer.

35. Boakye was born in 1989. He was aged 19 at the time of the offence and was the youngest of the offenders. He has no previous convictions and no cautions. A pre-sentence report indicated that he accepted that he had participated in these offences. He had done so with a view to being paid £10,000. He had been told that the victim was a drug dealer.

35. The Crown's case at trial was that Boateng and Nawaz were the principal organisers, and that Darko-Kwakye, Kyani, Poku and Boakye were trusted seniors of the principal organisers of the crime.
36. This case was heard by a very experienced and respected Recorder. It is clear from his sentencing remarks that, following the convictions of Boateng and Darko-Kwakye, the Recorder was anxious to ensure that the sentences would not merely reflect the seriousness of the offence before him but his assessment of the roles played by the different offenders and their relative culpability taken in the context of their activities during the commission of the offence, but also their previous records and what was known about them. The Recorder saw the two victims of the offence give evidence: the first, the victim who had been kidnapped; the second, his brother, who must have endured hours of desperate concern about the fate which might be visited on his brother. Those observations also informed his decisions.
37. At the end of the case there were a number of uncertainties, perhaps not so important as to the identity of the fourth man in the car on 11 April, but of considerable importance in the context of responsibility, for example, the use of the hot knife in order to burn the victim. The Crown did not pursue any count against those who pleaded guilty in respect of the burning and the torture. Although they pursued that count in relation to the two men who stood trial, the jury acquitted them. That is the kind of imponderable which a judge has to face when assessing sentence, bearing in mind that there is no doubt that in the course of these crimes the victim had indeed been tortured. The Recorder took the view that this was a very serious offence. Although different cases produce a variety of different circumstances, he concluded that this case was high on the risk of gravity. He identified these features, which we endorse: this was a carefully planned crime; it involved the demand for a considerable sum of money; violence was used on the victim; and threats of serious injury and deaths were made, some of which were communicated to the victim's brother.
38. The Recorder had before him a large number of sentencing decisions, starting with the guideline case of R v Spence and Thomas (1983) 5 Cr App R(S) 413. In deference to the repeated citation of this decision in the argument before us, we note this passage in the judgment of Lord Lane CJ at page 416:

"It seems to this Court that, as with many crimes so with kidnapping, there is a wide possible variation in seriousness between one instance of the crime and another. At the top of the scale of course come the carefully planned abductions where the victim is used as a hostage or where ransom money is demanded. Such offences will seldom be met with less than eight years' imprisonment or thereabouts. Where violence or firearms are used, or there are other exacerbating features such as detention of the victim over a long period of time, then the proper sentence will be very much longer than that. At the other end of the scale are those offences which can perhaps scarcely be classed as kidnapping at all. They very often arise as a sequel to family tiffs or lovers' disputes, and they seldom require anything more than 18 months' imprisonment, and sometimes a great deal less."

39. Since that decision, a very large number of different cases have come before this court for consideration on the basis that the sentence imposed by the trial judge was too long. We shall not go through those cases, which have been drawn to our attention. Although they were sentencing decisions which it was helpful to look at, it is unnecessary to recite them in this judgment. The principles are clear. It is plain that the Recorder was aware of them and that he reflected with great care on the sentences to be imposed. He said that he proposed to impose custodial sentences on all of the offenders. That followed from the fact that this was a carefully planned criminal enterprise, executed with a degree of ruthlessness, unpleasantness and violence, which must have added hugely to the victim's fear throughout the whole time when he was kept bound and imprisoned in the flat.
40. The Recorder dealt first with Andrew Boateng. He was put forward by the prosecution as being a principal organiser of the kidnapping. Having observed Boateng in the witness box, the Recorder believed that to be an accurate suggestion. He also took account of the various matters advanced on his behalf in mitigation. He concluded that the sentence should be eight years' imprisonment.
41. That was the Recorder's starting point. From that eight year sentence he decided where the different offenders' sentences should be placed. If this sentence is unduly lenient, it is at the starting point that the undue leniency first becomes apparent.
42. In sentencing Darko-Kwakye the Recorder said:

"The evidence demonstrates that your involvement may not have been as intense as that of Andrew Boateng, but the jury found that you played an active part in all three conspiracies."

He took into account all of the material put forward in mitigation and thus he imposed the sentence of six-and-a-half years' imprisonment.

43. In sentencing Kyani, the Recorder said that he, like Boakye, was under 21 and therefore younger than the others. However, he was not prepared to distinguish between the two youngest members of the gang. Kyani was described by the prosecution as a "trusted senior". On the other hand, Kyani was a man of previous good character. Positive material was placed before the Recorder in support of that character. He therefore sentenced the offender to four years' detention.
44. In sentencing Poku, the Recorder said that he was not put forward as a principal organiser of the kidnap but that he had played a major part in allowing his flat to be used as the "stronghold". Although Poku had previous convictions, there was none for violence. He acknowledged the guilty plea which was indicated at an early stage and imposed a sentence of five-and-a-half years' imprisonment.
45. In sentencing Nawaz, the Recorder noted that he had previous convictions for dishonesty, but none for violence. He accepted, as had been put forward by the prosecution, that Nawaz was a principal organiser of the kidnapping. He gave credit for the guilty plea and imposed a sentence of six years' imprisonment. He said that the credit to be given was two years off the sentence which would therefore have been the same as that imposed on Boateng if Nawaz, like Boateng, had fought the case through to the bitter end.
46. Finally, in sentencing Boakye the Recorder acknowledged that he was the youngest of the six offenders, aged 19 and of good character. He was put forward by the prosecution as another trusted senior. He gave limited credit of eight months for the guilty plea which was tendered at a late stage, so that the total sentence in his case was one of four years' detention in a young offender institution.
47. In relation to all the offenders, as required by section 240 of the Criminal Justice Act 2003, the Recorder ordered credit to be given for the time which they had served in custody before sentence.
48. We have examined the contention that these sentences were unduly lenient in the light of the aggravating features of the case. The victim of this kidnapping fell foul of a carefully prepared criminal operation. He was forcibly removed from the street outside his home by a mob of six men. He was chosen either for his own wealth or for his possible value as a hostage. He was detained for almost 24 hours. His legs and hands were bound and he was blindfolded. He was subjected to torture (although no one was specifically convicted of torture) and threatened. He was not the only victim. His brother (although to a lesser extent and to a different degree) was also a victim.
49. The Attorney General has drawn attention to the specific involvement of each of the offenders. Boateng was the main organiser with Nawaz, and the planner. He was present at the safe house for most of the significant time. There was no immediately obvious identifiable mitigating feature in his case. Nor did he have the advantage of a guilty plea. It was suggested on his behalf by counsel that this crime did not have the hallmarks of professionalism and that a number of mistakes were made by the offenders. That may be, but that is not how it would have seemed to the victim. It is pointed out that the offender should not be sentenced for the injuries inflicted on the victim because he was acquitted. It is suggested that we should bear in mind, as the Recorder did, that he is still a very young man, only 20 years old. In addition, our attention has been drawn to some excellent reports which indicate that since he has been in custody he has used his time well.
50. Somewhat surprisingly, there is an application by the offender Boateng for leave to appeal against sentence. Given that it is accepted by counsel that the sentence on him could be deemed "lenient but not unduly so", we find it an astonishing application to have to consider. The suggestion is that there is a disparity between the offenders which should lead to this court reconsidering the sentence on the basis that any member of the public hearing about the disparity would think that something had gone wrong with the administration of justice. We suggest that the least said about that application, the soonest mended. It is without merit.
51. In relation to Darko-Kwakye it is pointed out that he was involved at an early stage in the reconnaissance on 11 April. It is suggested that there is no readily identifiable mitigating feature because he, too, fought the case to the bitter end. On the other hand, it is pointed out on his behalf that he was out of the flat for virtually the entire period when the victim was being detained, and that it would be difficult to begin to infer that he had been responsible for any of the violence and ill-treatment undergone by the victim. There is some force in that submission. Our attention has also been drawn to his personal circumstances which are of importance. It suffices to indicate that it is a matter of public knowledge that (whether it is true or not) he has been treated as a police informer by some of those in custody and he is held in solitary confinement for his own protection.
52. In the case of Kyani, it is pointed out that his involvement began with the purchase of the BMW car. That was the first direct action in the case. He was part of the reconnaissance party on 11 April. It is suggested that the only readily identifiable mitigating features are that, one month before the trial, he tendered a guilty plea and that he is still relatively young. Although we should underline the fact that no less than four of the offenders pleaded guilty, Kyani was the first to do so. It is suggested that that was a brave decision by one of the younger members of the gang. There is force in the submission that that guilty plea took some courage. It is also suggested that he is to be treated as a man of effectively good character and that there are positive character references before the court in support of him. It is pointed out that in the particular circumstances of this case the Recorder was justified in allowing the maximum amount of discount for the guilty plea. Our attention is drawn to the fact that he, too, has responded well to the sentence.
53. The main aggravating feature in Poku's case is that it was his flat in which the victim was held captive. It is suggested that the only readily identifiable mitigating factor was his guilty plea. That followed an indication given one month before the trial that a guilty plea would be tendered when the opportunity arose. He also is doing well in custody and there are positive reports on him.
54. The aggravating features in Nawaz's case are that he was a principal organiser. He was involved in the purchase of the BMW and was a participator in the reconnaissance on 11 April 2008. The only readily identifiable mitigating feature in his case is his guilty plea, although that was tendered only on the day of trial following the advice of a new solicitor. However, our attention is drawn to the fact that Nawaz was not present when the violence against the victim began; nor was he present for a significant part of the time while it continued. It is also clear that he has expressed remorse for his participation in this crime, and there is some evidence to suggest that this is genuine.
55. Finally, in Boakye's case the aggravating features are that he was involved in the reconnaissance on 11 April. There is a dispute about whether it is correct to identify him as the fourth man in the BMW car, or, if he was not the man in the car, whether he was one of those seen on the street. More important, he was not proved to be one of the planners. His main role was to act as the victim's jailer. He was present in the safe house for most of the time when the victim was there. On the other hand, the Crown did not proceed with the allegation that he was responsible for causing the burn wounds. It is suggested that the readily identifiable mitigating features are his guilty plea and his youth. The guilty plea was tendered at a late stage. The judge allowed some, but not significant, discount. More important, he is the youngest of the offenders. He has no previous convictions. He, too, has expressed remorse for his offences and appears to have some insight into the impact of these crimes on the victims.
56. We have considered the principles identified in Spence and Thomas and we have looked at the many decisions drawn to our attention. The question we must ask was encapsulated in a submission by Mr Jones: whether the sentences imposed on these offenders could be seen as an aberration when set against the guidance in Spence and Thomas? Were these sentences unduly lenient or simply lenient?
57. The Recorder presided over the trial and he saw the victim give evidence. We attach significance to those features, as we are invited to do. The fact that two of the alleged torturers were acquitted by the jury and the others were not proceeded against presented the Recorder with a difficult and complex sentencing decision.
58. In our judgment these sentence are at the lower end of what would be an appropriate range of sentence. Indeed it could be argued that they could not have been lower. They were imposed by a very experienced Recorder. Had he decided that the sentences should have been longer, there could have been no justifiable grievance or complaint. However, dealing with the situation as it is before us now, our conclusion is that the sentences were lenient but not unduly so. Therefore we shall not interfere with them.