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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Thompson & Anor, R v [2010] EWCA Crim 317 (2 February 2010)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2010/317.html
Cite as: [2010] EWCA Crim 317, [2010] 2 Cr App R (S) 69, [2010] 2 Cr App Rep (S) 69
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CRIMINAL DIVISION
Strand London, WC2A 2LL |
||
B e f o r e :
MR JUSTICE SILBER
MR JUSTICE KENNETH PARKER
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| R E G I N A | ||
| v | ||
| (1) ESMOND BINGHI THOMPSON | ||
| (2) ISIAH LEVI NELSON |
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- 1.1. LORD JUSTICE MOORE-BICK: On 20 March 2009 in the Crown Court at Sheffield before HHJ Keen QC the applicants were convicted of attempted murder on count 2 of the indictment. The applicant Thompson was also convicted of wounding with intent to do grievous bodily harm on count 4. Each was sentenced to 22 years' imprisonment; Thompson was sentenced to five years' imprisonment concurrent in respect of the offence of wounding with intent. In each case the judge directed that time spent in custody on remand should count against sentence.
- 2.1. The applicants now renew their applications for leave to appeal against sentence after refusal by the single judge.
- 3.1. The events giving rise to these convictions had their origins in the murder of a man named Brett Blake on 29 June 2008 in a Sheffield nightclub. Both he and the two men convicted of his murder, Danny Hockenhull and Curtis Goring, had been part of a gang associated with the S3 postcode area in Sheffield and known therefore as "S3". There had been serious disagreements within the gang, which had split into two factions: one associated with Hockenhull and Goring and one associated with Blake.
- 4.1. Nelson and Thompson were friends of Hockenhull and Goring and are said to have formed part of a faction associated with them, although it is now said by Mr Reynolds, who appears on behalf of Nelson, that there was little, if any, evidence that he had been a member of the gang.
- 5.1. The primary victim of the offence, a man called Junior Liversidge, was a good friend of Leyton Blake, the brother of Brett Blake. After Brett Blake's funeral on 4 July 2008 Liversidge and Leyton Blake went to a wake at a public house. At about 1.00 am they and others left in a car driven by a man called Stefan Gordon. One of the occupants of that car, Wesley Daswell, later told the police that Leyton Blake wanted to find Nelson because he believed, albeit wrongly, that he had been responsible for his brother's death.
- 6.1. Liversidge and Daswell saw Nelson and Thompson in a car being driven by Nelson. They swerved in front of the car in an attempt to make it stop, but at that point Nelson was able to avoid them. Shortly afterwards, Liversidge and Daswell found Nelson and Thompson again in their car, but they ran away and made their escape. Liversidge and Daswell then made off with the car, which was later found burnt out.
- 7.1. Nelson and Thompson set out to exact revenge on Liversidge and Daswell, whom they found in Gordon's car parked outside a hotel. They repeatedly stabbed Liversidge, causing life threatening injuries. Those injuries included wounds to the right mid-upper arm, to the left armpit, to the right side of the chest and the right side of the back. As a result, both of his lungs partially collapsed and the blood supply to the liver and bowel was disrupted.
- 8.1. Liversidge was taken to hospital. During four hours of surgery he required 28 pints of blood. He suffered a blocked bile duct and needed a further operation. The medical evidence suggested that he would require another operation in the near future and may require surgery at intervals for the rest of his life. The doctors said that it was rare to see an injury of that nature where the patient did not bleed to death prior to surgical intervention. This was the attack which formed the basis for count 2 of the indictment which charged the applicants with attempted murder.
- 9.1. In the course of the attack Wesley Daswell was also stabbed, sustaining a single wound to his leg which required three stitches. That formed the basis for count 4 of the indictment, on which Thompson was convicted and Nelson acquitted.
- 10.1. On 19 July 2008 Nelson was arrested and on 7 November 2008 Thompson handed himself in to the police. Neither of them answered any questions in interview.
- 11.1. When passing sentence the judge noted that the offences were linked to the murder of Brett Blake, of which Danny Hockenhull and Curtis Goring had been convicted and sentenced some six weeks earlier. In their case the judge had passed mandatory life sentences with a direction that they each serve a minimum of 21 years in custody. That minimum period has now been reduced by this court to 18 years in each case.
- 12.1. In the course of his sentencing remarks the judge commented on the similarities in terms of age and background of these applicants with those of Hockenhull and Goring. The judge had the circumstances of that case and the level of sentencing very much in mind, as he made clear. He noted that there had been an element of provocation as far as Hockenhull had been concerned, which had taken the form of an attack only a few days earlier when Brett Blake had slashed his face with a knife. He took the view that there was no comparable provocation in this case, although Liversidge and others had chased the applicants and had taken and destroyed their car. He took the view that, in both cases, there had been an element of planning and revenge.
- 13.1. The judge noted that the case had its background in the break-up of a street gang. He observed that violence was escalating and that it was a serious aggravating feature that the murder of Brett Blake had itself been a spur to further violence. He said that gang violence, accompanied by a lack of co-operation with the police and a code of silence, even on the part of victims, was an escalating problem in all large cities, to which Sheffield was no exception. He considered that where determinate sentences are imposed for offences committed in that context, it is necessary that they should contain an element of deterrence to demonstrate that society will not tolerate that type of culture and its associated violence. He therefore passed a sentence which he made quite clear was deliberately intended to be severe.
- 14.1. The grounds of appeal in each case are that the sentence was manifestly excessive, and that, unless the sentences passed in the present case are reduced to some extent, there will be an apparent element of disparity between this case and the cases of Hockenhull and Goring.
- 15.1. The applicants in this case are still quite young. Thompson was born on 12 April 1983. He has seven previous convictions for 12 offences, which include possessing an offensive weapon, having a bladed article in a public place, robbery, affray and common assault. Nelson was born on 9 June 1982. He has six previous convictions for 14 offences, including one offence of robbery committed in January 2002.
- 16.1. Guidelines on sentencing for attempted murder have, since the date of these convictions, been published by the Sentencing Guidelines Council, and although they were not in force at the time when the judge passed sentence, we consider that they provide valuable assistance in relation to the appropriate sentences for offences of this kind, as counsel accepted.
- 17.1. The Guidelines identify different levels of seriousness of what is, on any view, a very serious offence. Level 2 relates to a planned attempt to kill, and in a case involving serious and long-term physical or psychological harm indicates a starting point of 20 years' imprisonment with a sentencing range of 17 to 25 years' imprisonment. The indication in relation to a Level 3 offence, which includes other spontaneous attempts to kill, is 15 years' custody as a starting point, and a range of 12 to 20 years' custody in a case involving serious and long-term physical or psychological harm.
- 18.1. Mr Reynolds submitted that this was properly to be regarded as a level 3 case because there was no significant planning involved. In our view, it is better viewed as a level 2 case, since there was, at least at some point, a plan to pursue the victims and to do so with an intention to kill Liversidge. It is not disputed that this is a case in which he suffered serious and long-term physical harm.
- 19.1. The fact that the offence resulted from an element of inter-gang rivalry is, in our view, a serious aggravating factor and the judge was entitled to take the view that the sentence should therefore contain an element of deterrence. As we have already indicated, the starting point for a level 2 offence is 20 years' imprisonment, with a range of 17 to 25 years.
- 20.1. There are some mitigating features to the case. Mr Reynolds has reminded us that, at an earlier time during that day, Nelson was doing his best to avoid arousing hostile feelings that were liable to be generated by the funeral, and, in addition, that both these applicants are, as we have indicated, relatively young men.
- 21.1. In the ordinary way we do not think that the sentence passed by the judge could be described as manifestly excessive having regard to the nature and the circumstances of the offence. This was a revenge attack in the context of inter-gang rivalry, and called for a severe sentence.
- 22.1. Nonetheless, we are persuaded that, in the light of the express comparison which the judge drew between this case and that of Goring and Hockenhull and the fact that the minimum terms imposed on them have been reduced, there would be an understandable perception of unfairness if these sentences were not reduced also. For that reason and for that reason alone, we are persuaded that it is appropriate in this case to reduce the sentences slightly.
- 23.1. We therefore give leave in each case to appeal against sentence, and indicate that we would reduce the sentence on each applicant from 22 years' to 20 years' imprisonment.