England and Wales Court of Appeal (Criminal Division) Decisions

Neutral Citation Number: [2016] EWCA Crim 108

 

No: 201600121 A3

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Strand

London , WC2A 2LL

 

Tuesday, 26th January 2016

 

 

 

B e f o r e :

 

MR JUSTICE HADDON‑CAVE

 

MRS JUSTICE PATTERSON DBE

R E G I N A

 

v

 

CULLUM KEANE

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Mr J W Mason appeared on behalf of the Applicant

 

The Crown was not present and was unrepresented

 

J U D G M E N T

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1.       MR JUSTICE HADDON-CAVE: On 26th October 2015, in the Crown Court at Guildford, the applicant, Cullum Keane, now aged 18, was convicted of one count of conspiracy to commit violent disorder contrary to section 1(1) of the Criminal Law Act 1977.

2.       On 27th November 2015, before the trial judge, His Honour Judge Fraser, the applicant was sentenced to ten months' detention in a youth offenders institution for that offence. There were various co‑accused, some of whom pleaded guilty and some who were convicted at the same trial. Four of the co‑defendants received detention in youth offenders institutes of sentences ranging from nine months, 11 months, 12 months and 18 months' detention. Two of the defendants, Luqman Sadaad and James Culligan, both aged 15 at the time of this offence, were given 12 and nine months youth rehabilitation orders by the judge.

3.       The Registrar of Criminal Appeals has referred this application for leave to appeal against sentence to the full court. We have been much assisted today by the submissions of Mr Mason, who appeared for the applicant below.

4.       The facts, very briefly, were these. On 11th November 2013 a confrontation took place between two groups of young men at Colne Court on the Watersedge Estate in West Ewell. One man was stabbed, golf clubs and sticks were carried and fireworks were thrown.

5.       The applicant was part of what the Crown called "the Chessington group". The other group was called "the Watersedge group". The two groups agreed to meet up at the Watersedge Estate to fight. They threw fireworks at each other and pushed each other. The Chessington group were carrying weapons including poles and golf clubs. Two males were seen grappling with each other. One shouted, "Leave me alone, leave me alone"; the other continued to attack him. The group then scattered. The police arrived. One of the males, Thomas Barry, was left behind. He had been stabbed and was taken to hospital in an ambulance. He later recovered.

6.       At around 7.34 pm, a few minutes after Thomas Barry was stabbed, one of the Chessington group, Kader, was involved in phone messaging which indicated that he was picking up a weapon, subsequently found to be a knife used in the attack. The applicant messaged Kader three times at around 8.09 pm, saying "Did you grab it?". The next day Kader sent a message to the applicant stating, "Do me a favour coz I saved you last night basically".

7.       Most of the defendants were identified by CCTV footage in areas in the vicinity of the incident or routes there and back and/or from cell site analysis and mobile phone messaging.

8.       Before us today, Mr Mason seeks permission to appeal against sentence. The basis of his application is (a) the youth of the applicant at the time of this offence and (b) the fact that the trial took two years to come on.

9.       This was a serious violent disorder between rival groups of youths which had a number of serious aggravating features. The confrontation between the Chessington group and the Watersedge group had been pre‑planned and indeed agreed. Both groups were, as we have said, armed with a variety of weapons, including poles, golf clubs and knives. The violence took place in a residential area of West Ewell in Surrey after dark and involved significant numbers of youths. It was, as the judge found, very frightening for the residents who witnessed it. The level of violence was very significant. One youth was stabbed and suffered life‑threatening injuries, from which he has, fortunately, recovered.

10.   As the sentencing judge, His Honour Judge Fraser, observed, the applicant was "fully involved" from the very beginning of this conspiracy, he was fully involved through the lead‑up to this disorder that day and he was fully aware of what was going on.

11.   Contrary to the written submission of Mr Mason, the judge did sentence the applicant on the basis of his age, 16 years five months at the time of the commission of the offence. Indeed, the judge said expressly: "now, because of your age ... I have started from the position of the sentence I would have imposed on you at that age".

12.   Contrary to the written submissions of Mr Mason, the pre‑sentence report in this case is not, in our view, a reliable guide as to a suitable sentence in this case. The applicant did not "very fully and fairly" admit his role in the incident; indeed, he effectively denied his involvement in planning the confrontation when speaking to the author of the pre‑sentence report.

13.   There is, moreover, clear evidence that the applicant was involved in the retrieval of the knife from the scene. He texted another co‑defendant, Kader, regarding retrieving the knife. He was seen on CCTV holding what appeared to be a knife (which he said subsequently was a pair of scissors).

14.   The courts rightly take what the judge called a "dim view" of this sort of violent disorder by youths. The judge was entitled to take the view that the custody threshold was passed in this case in relation to this defendant in view of his "full participation". The judge fully considered and took into account the applicant's mitigation and references. In our view, the trial judge was in the best position to judge the sentences in this case.

15.   The sentence passed here of ten months' imprisonment was well in line with the authorities such as R v Bowker [2007] EWCA 1608, where the Court of Appeal Criminal Division reduced a sentence for violent disorder from 28 to 24 months on a defendant who was two days short of his eighteenth birthday. This equated to a sentence of 36 months before a reduction of a third for plea, i.e. a sentence of over three times the sentence passed in this case.

16.   Mr Mason does not suggest that the sentence passed by the learned judge was wrong in principle, but submits that, in view of the applicant's age, a suspended sentence could have been passed or a youth rehabilitation order made.

17.   We disagree. In our view, the sentence that was passed was entirely proper; indeed, this applicant and some of the other co‑defendants may, in the light of cases such as R v Bowker, count themselves as fortunate that they did not receive heavier sentences.

18.   For those reasons, the application for permission to appeal is refused.