England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT READING
HER HONOUR JUDGE CUTTS QC
T20157313
T20157339

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/11/2016

Lady Justice Sharp:

1. On 31 August 2015, at about 11pm, in a residential street near Slough, close to his home, Wa'ays Dhaye, then 18, was fatally attacked while walking home, alone, from his local railway station.
2. Four men, three of whom were Kaneel Huggins, Antwon Clarke, and Khianni Gordon, had followed Dhaye, in a car driven by Huggins. The fourth man alleged to have been involved was Davarn Francis. He fled the jurisdiction in September 2015, before he could be arrested, and remains a suspect.
3. The prosecution case was that Clarke, Gordon and Francis, armed with knives for that purpose, decamped from the car (a Vauxhall Corsa) and ambushed Dhaye, inflicting multiple stab wounds on him, one of which caused his death. The men then returned to the car and fled the scene. In the early hours of 3 September 2015, Huggins and Gordon destroyed the Corsa used in the fatal attack, by fire.
4. Huggins, Clarke and Gordon were subsequently arrested and charged with murder. Huggins and Gordon were also charged with perverting the course of justice, in relation to the destruction of the car. On 7 March 2016, the case was listed for trial before Her Honour Judge Cutts QC, sitting in the Crown Court at Reading. On the same day, Huggins pleaded guilty to perverting the course of justice.
5. On 8 April 2016 Gordon was convicted of murder and of perverting the course of public justice. Huggins and Clarke were acquitted of murder, but convicted of manslaughter.
6. At the date of the fatal attack, Gordon was 18 years and 3 months, Clarke was 17 years and 8 months, and Huggins was 18 years and 9 months old.
7. On 13 May 2016, Huggins and Clarke were sentenced to 9 years' detention for the offence of manslaughter. Huggins was also sentenced to a consecutive sentence of 12 months' detention for the offence of perverting the course of public justice. Gordon was sentenced to custody for life and the minimum term was fixed at 19 years. Paragraph 5A of Schedule 21 to the Criminal Justice Act 2003 ('the CJA 2003') was found to apply to his case. A concurrent sentence of 18 months' detention was imposed in respect of the offence of perverting the course of public justice.
8. The Attorney General now applies, under section 36 of the Criminal Justice Act 1988, for leave to refer the sentences of Huggins and Clarke for manslaughter as unduly lenient. The Registrar has also referred to this court Gordon's application for permission to appeal against sentence. Gordon has also made an application for permission to appeal against conviction, on the bases (1) of fresh evidence in the form of a psychologist's report, and (2) that bad character evidence had been wrongly admitted at trial. This further application remains outstanding, and will be dealt with on a later occasion.
9. For the reasons that follow we have concluded that the sentences for manslaughter were unduly lenient; and that Gordon's application for permission to appeal against sentence should be refused.

The facts

10. Huggins, Clarke, Gordon and Francis were from High Wycombe. Dhaye was from Slough, where he lived with his parents and siblings. He and the men who were to attack and kill him had not met before the day of the attack. However, earlier in August 2015, some animosity had arisen between Dhaye and Gordon over exchanges between them on Twitter. These exchanges unfortunately revealed to Gordon the exact area in Slough where Dhaye lived.
11. On Friday 28 August 2015, Huggins drove the Corsa with Gordon as a passenger to the road identified in the Twitter exchanges, which was very close to where Dhaye lived. In her sentencing remarks, the judge specifically found, as had been alleged by the Crown, that this was a reconnaissance mission by Gordon to try and locate Dhaye's address, and that Huggins had driven the Corsa there knowing that this was so. The Corsa belonged to Mr and Mrs Wheatley, the parents of Huggins' girlfriend. Without their knowledge, she had given him permission to use the Corsa, whilst she and her parents were abroad on a holiday, from which they were due to return on 3 September 2015.
12. On Monday 31 August 2015 Dhaye went to the Notting Hill Carnival with a number of friends. They travelled to London from Slough by train. Huggins, Clarke, Gordon, Francis and some of their friends also went to the Carnival. They travelled to London from High Wycombe in the Corsa. The two groups came across each other by chance, and an unpleasant and aggressive verbal exchange took place, which ended when the police intervened.
13. Within a few hours of this incident, Huggins, Clarke, Gordon and Francis travelled to Slough in the Corsa, driven by Huggins, in order to try and track down Dhaye. The judge specifically rejected their case at trial that they went there to 'meet girls' and to go to a party.
14. The Corsa left Notting Hill at 8.45 pm and arrived in Slough at 9.20 p.m. CCTV footage was to capture most of its movements thereafter.
15. Once in Slough, the men made a detour to the home of Francis's father, where they armed themselves with at least one knife. They then drove to Slough station, arriving at 10.20 p.m. They parked the Corsa in the station car park and waited inside it for Dhaye and his group. CCTV footage showed Gordon and Clarke leaving the car at one point to look at the arrivals board.
16. Dhaye and his group arrived at Slough station just after 10.35p.m. Dhaye began the thirty-minute walk home, alone. He was followed by the Corsa. Initially the men lost Dhaye when he briefly retraced his steps in order to retrieve his house keys from a friend. However, they quickly found him again - after driving four circuits around the station area, and crossing a red traffic light more than once. At one stage, the Corsa passed Dhaye; it performed a "U" turn and parked with its lights off while Dhaye walked past, oblivious to the presence of the men in the car.
17. Dhaye got to Thurston Road, within minutes of his home, at nearly 11p.m. By then, the Corsa had parked, out of sight, in a cul-de-sac off Thurston Road with its lights off, facing the junction with Thurston Road. Huggins stayed in the car. The other men got out to wait for Dhaye to pass the junction, then ran after him and ambushed him from behind. Clarke was by now wearing a mask he had been seen with earlier at the Carnival. He also had a hood pulled up in order to conceal his face. Since he was not wearing the hoodie at Slough station, it was part of the Crown's case that he put it on in the car, as part of his preparation for the attack. While the attack was in progress, Huggins drove the car into Thurston Road, to enable a rapid getaway.
18. In a matter of seconds, Dhaye had been stabbed eight times. At least four of the blows penetrated to a depth of at least 6 cm. The fatal injury was a stab wound to the lower abdomen, 10cm deep. This wound transected the aorta, causing a catastrophic and fatal haemorrhage. The Crown could not say at trial which of the three assailants inflicted this wound. However, it was clear from the location of the penetrating wounds, save for the fatal one, that the focus of the attack had been the buttocks and rear of the upper thighs. It was this which led the Crown to allege on the murder charge that there was no intent to kill, rather an intent to cause really serious harm.
19. CCTV footage captured the immediate aftermath. The three assailants chased Dhaye, now stumbling and fatally wounded, to the point where he suffered his terminal collapse, just off camera. At the moment he must have fallen, Francis could be seen to raise both of his arms in the air, in an apparent gesture of triumph.
20. The three men then turned and ran to the waiting car. One of them, Gordon, was clearly holding a knife. After his arrest, he denied that the person holding the knife was him. In his evidence-in-chief however, he claimed he only had the knife (which he took back to the car) because he had taken it from Francis, when Francis was attacking Dhaye.
21. The Crown's case was that this knife was not the only knife used in the attack. A few seconds before the men first came into the view of the CCTV camera which caught the aftermath of the attack, a resident of Thurston Road, looking out of her bedroom window, saw a man in a mask (Clarke) holding a long shiny item in one of his hands. She also heard laughter as the attack was taking place. A broken knife was later found on the ground at the scene of the stabbing. The evidence was consistent with Dhaye having grasped its blade in an attempt to defend himself. Notably, his finger mark was found on that blade, as was blood which matched his DNA. He had also sustained a minor incision on a finger, typical of a defensive injury.
22. After the attack, the men made good their escape, leaving Dhaye dying or already dead on the ground. They drove back to High Wycombe where Huggins left the Corsa in his girlfriend's driveway.
23. However, it soon became known that the person attacked in Thurston Road had died, and, shortly after midnight on 3 September, Huggins, Gordon, and one other man took the Corsa to a remote spot in nearby Marlow Bottom, where they destroyed it by fire.
24. On their return from holiday Mr and Mrs Wheatley confronted Huggins about the fact that the Corsa was missing. Huggins admitted he had been in it when the killing took place, an admission made, according to the Crown, because he knew the Wheatleys were likely to go to the police, and that the Corsa may have been identified as the car involved in the fatal attack. Huggins claimed to the Wheatleys, however, as he was to do at his trial, that he had not known what was going to happen.
25. Huggins and Gordon were arrested on the 4 September 2015. The men made no comment in interview; but covert recordings of what were said to be highly incriminating exchanges between them, recorded on the 5 September 2015, while they were being transported in a police van, formed part of the case against them at trial. Clarke was arrested on the 21 September 2015. He too made no comment in interview, but made two prepared statements which strongly implied, so the Crown alleged, that he was not present during the fatal attack.
26. Huggins, Clarke and Gordon gave evidence in their own defence. They admitted their presence, but said they were unaware of any plan to attack Dhaye, let alone one to attack him with knives. They blamed Francis for the knife attack and for the killing, and asserted he had acted on his own. Gordon and Clarke claimed they had got out of the car for innocent reasons, and that they became involved in the struggle in order to separate Francis from Dhaye. It was an implicit part of their case that Dhaye might have been armed with a knife, something that would have explained the evidence that more than one knife had been at the scene of the attack.
27. Huggins had no previous convictions. Clarke had convictions for a total of 7 offences. These include 3 offences of robbery committed on two occasions in 2012, when he was 14. He was also on youth licence for offences of possession of cocaine, cannabis and heroin with intent to supply at the time the offence was committed. Gordon had a conviction in 2014 for the possession of a bladed article (a lock knife) in a public place, for which he was sentenced to a referral order.
28. All three men continued to deny their guilt after their conviction, when interviewed for the Pre-Sentence Reports prepared on them. For the purposes of sentence, the court also had a psychologist's report on Gordon, principally to assist with the issue of maturity. None of the men was assessed by the judge as dangerous and no issue arises as to this finding.
29. The judge's sentencing remarks were a model of their kind, as was her admirable and lucid summing-up. No criticism is or could be made of her identification of the relevant sentencing principles, or of the findings of fact relating to sentence which she made. The excellent work done by the judge in this regard, and the clarity of the route to verdict she gave to the jury have been of considerable assistance to this court in exercising its functions of review.
30. It inexorably follows from the route to verdict the judge crafted, that the distinction between the murder and manslaughter verdicts was as to intent only. All three men were convicted of the killing on the basis that they had knowingly participated in the carrying out of a plan to assault and injure Dhaye, knowing in advance that the assault would be carried out using at least one knife, in the case of Gordon intending thereby that the deceased should be caused really serious injury; and in the case of Huggins and Clarke intending that the deceased should be caused some harm.
31. The judge explicitly sentenced the three men on that basis. She said she was sure, for the purposes of sentence, of the following matters. The trip made by Huggins and Gordon on 29 August 2015 was a reconnaissance mission to identify the exact location of the road on which Dhaye lived. It was Gordon who had the disagreement with Dhaye and gave the directions on that trip, but Huggins knew why he was driving there, and was prepared to assist. They had all stopped at Francis's father's home address on the night of the attack to obtain a knife or knives. Gordon had the clear intention of finding Dhaye and confronting and assaulting him. Clarke was prepared to assist him, and Huggins was willing to drive the others there for that purpose. The attack on Dhaye was a planned attack and ambush. Huggins remained in the car and moved it to ensure a speedy getaway. Dhaye was followed by the three men until he collapsed. Gordon took a knife to the scene. He intended not to kill but to cause grievous bodily harm. Dhaye had suffered a number of wounds to his thigh and buttock area. Huggins was aware that Dhaye was to be assaulted and that one or more of the others had a knife. He intended only that Dhaye should be caused some harm. Clarke was the man in the mask. He was also aware that Dhaye was to be assaulted and injured, and played a part in that knowing there was at least one knife, intending only some harm was to be caused.
32. The judge assessed the minimum term for Gordon on the footing that he had taken a knife to the scene, intending to assault Dhaye with it. There was evidence that more than one knife was at that scene, but, she said, whether Gordon struck the actual fatal blow to the deceased was immaterial to determining the starting point, which was 25 years.
33. The significant matters in aggravation for all three men were the planned nature of the attack, involving in the cases of Huggins and Gordon a reconnaissance mission three days earlier; that it was in public, at night, on a man who was on his own and vulnerable, with a specific detour to collect the knife or knives - motivated as it was (and as all knew) by Gordon's desire for revenge, notoriety and status. Gordon's intention was to cause really serious harm rather than to kill; and Huggins and Clarkes' intention was to cause only some harm. However, a knife or knives had been taken to the scene, and all three knew stabbing a man repeatedly with a knife or knives led to the inevitable and high risk that he could be killed. It was a significant feature that all three men were young. In the case of Gordon, he was only just 18 years, which affected the starting point, he had a low IQ and he lacked the maturity that would be expected of an 18 year-old though not to any great extent. It was not accepted (as asserted on his behalf) not least because of what he said in the bugged conversation with Huggins, that he lacked assertiveness or was a follower. In relation to Gordon his sentence reflected the offence of perverting the course of public justice, the sentence for which was made concurrent.
34. The judge said she saw no reason to differentiate between the manslaughter sentences on Clarke and Huggins: Clarke was a year younger at the time of the offence, and did not go on the reconnaissance mission; however, he was not significantly less mature than Huggins, he was on youth licence at the time of the attack and unlike Huggins, had previous convictions.

Huggins and Clarke: Arguments for the parties on the Attorney's reference

35. Mr John Price QC, who appears for the Attorney, and was counsel for the Crown at trial, acknowledges – as do all counsel – the excellence of the judge's sentencing remarks. His core submission, however, is that the eventual sentence for the manslaughter offence simply failed to reflect the seriousness of the offending, and gave insufficient weight to the very serious aggravating factors that were present, especially the premeditation and planning, which involved obtaining a knife or knives well in advance for the specific purpose of using them as weapons with which to carry out the attack; and then the bringing of a knife or knives to the scene. Indeed, he says that it was clear from the evidence that the first thing the men did when they went to Slough on 31 August 2015, more than an hour before the fatal attack took place, was to pick up one or more knives that were later used to stab Dhaye.
36. He submits this is an example of an offence of involuntary manslaughter falling very close to, if not at the top end of the scale, and close to murder. Moreover, the unduly lenient sentence on Huggins and Clarke gave rise to a significant discrepancy between the sentences of the three men concerned, since these were facts which in the case of Gordon were rightly held to bring his case within Paragraph 5A of Schedule 21 of the Criminal Justice Act 2003.
37. Mr Bentley QC on behalf of Huggins submits that sentence was passed by an experienced trial judge, who was well aware of the relevant authorities. She correctly took into account a number of factors which properly allowed for the passing of a lenient sentence, but not one that was unduly lenient. He submits the sentence lay within the proper range that was open to the judge. Mr Fuad QC for Clarke, in contrast perhaps, does not accept the sentence was lenient, let alone unduly lenient, and emphasises the points of distinction between Clarke, who did not go on the reconnaissance mission, or participate in the burning of the car, and the other two men.

Huggins and Clarke: Discussion

38. We start with some basic observations. Manslaughter is a common law offence with a maximum sentence of life imprisonment. There are no sentencing guidelines for involuntary manslaughter, but the court is required to pass a sentence that is commensurate with the seriousness of the offence. Section 143(1) of the 2003 Act provides that: "In considering the seriousness of any offence, the court must consider the offender's culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused."
39. Seriousness is accordingly determined by two main matters: the culpability of the offender and the harm caused, or risked being caused, by the offence. The extent or level of an offender's culpability for an offence therefore depends not only on the harm he intended, but the extent to which the harm actually caused could have been foreseen. This approach to culpability assumes particular importance in offences where there is a significant difference between intended and actual harm, a point made clear in the Sentencing Guidelines Council's Overarching Guidelines on Seriousness. These state in terms that in cases where unusually serious harm results and was unintended, culpability will be significantly influenced by the extent to which the harm could have been foreseen.
40. Self-evidently, actual harm is at the highest level where the victim has died as a result of unlawful violence, and this is a factor which must be given greater weight in sentencing in involuntary or unlawful act manslaughter cases, to accord with the legislative intention of section 143(1) of the 2003 Act: see Attorney General's Reference Nos 60, 62 and 63 of 2009) [2010] 2 Cr App R (S) 46 [2009] EWCA Crim 2693,^[1] at para 22) also known as Appleby.
41. The court in Appleby was considering, in particular, sentencing levels for involuntary manslaughter, where "the culpability may be relatively low, but the harm is at the highest level" (see para 15). The paradigm example of such a case might be what Lord Judge CJ described in Appleby at para 8 as true "one-punch manslaughters" – that is, where death results from a single blow with a bare hand or fist. Even then, distinctions can be drawn in terms of culpability between a half-hearted blow resulting in a fatal injury that is almost accidental, and a blow delivered with full force, which itself causes fatal injury.
42. In this case however, we are concerned with a wholly different scenario. Without attempting a precise gradation in what is inevitably a fact-dependent continuum, in our view, there were here a combination of factors which meant this was offending where culpability was at or approaching the highest level for involuntary manslaughter. Specifically, those factors are the use of a knife (or knives) brought to the scene for the purpose of causing injury, together with the cold-blooded planning to ambush and stab which accompanied that use, with the high and entirely foreseeable risk of the death, which eventuated. In our judgment the sentence of 9 years' detention for manslaughter, after a fully contested trial, was simply an inadequate reflection of the seriousness of the offending encompassed by these facts.
43. In short, we agree with the submissions on behalf of the Attorney that insufficient weight was given by the judge to the factors Mr Price QC identifies: that is the degree of premeditation and planning, the bringing of the knife to the scene, the intention that it should be used, and the death of the victim. We emphasise and re-iterate the penultimate point. This was not merely a case where a knife was taken to the scene and used to kill; it was one where it was taken to the scene for the specific purpose of stabbing the victim.
44. In Gordon's case, the fact that a knife was brought to the scene to commit an offence and was used to commit the murder brought the case within para 5 A of Schedule 21 to the 2003 Act. In consequence the starting point in determining the minimum term he would actually serve for the murder was 25 years. The effect of para 5A to Schedule 21 is not however confined to murder. It has an impact on lesser offences of violence committed with a knife or similar weapon, in order to preserve a consistency of approach in sentencing: see for example, the observations of Sir Brian Leveson P, in R v Odegbune and ors [2013] EWCA 711, at para. 30. Though para 5A does not apply to those under 18, the President (at para 35), emphatically endorsed the principle that the features which increase the starting point in Schedule 21, for those offenders over 18, are highly relevant as aggravating features when considering those under 18.
45. In Odegbune, the court upheld sentences of 12 years' detention imposed on 3 offenders convicted of manslaughter after a trial, where a 15-year-old boy was chased through Victoria Station and then stabbed to death having been attacked by a large group of teenagers. Two of the core group involved, who were 16 at the time of the offence, were convicted of manslaughter on the basis they knew at least one of the group was armed with a knife or other bladed weapon, and they foresaw that such a weapon might be used to cause some harm.
46. In Attorney-General's Reference (No.36 of 2015) (Nicholles) [2015] EWCA Crim 1174, (Treacy LJ, Teare J, and the Recorder of Birmingham) a sentence of 14 years' imprisonment for involuntary manslaughter was substituted for one of 9 years' imprisonment after a trial. The offender had killed the victim, following an argument. There was no evidence of animosity between the two men, who were in their 50s, and knew each other well. After an argument following a funeral, they fought, initially with their fists. A knife then fell out of the offender's pocket. Both men went towards it; the offender picked it up and stabbed the victim in the neck. Although the offender did not anticipate a confrontation, it was critical to the court's assessment of culpability that he unlawfully had with him a knife capable of inflicting lethal injury, and the knife was used unreasonably and unlawfully in circumstances where there was an obvious risk of serious injury. Culpability was therefore assessed as high. The court considered that the seriousness of the offence fell between a situation where an offender deliberately takes a knife with him to a confrontation which was to take place (as in R v. Young [2012] EWCA Crim 2618) and one where the knife was picked up and used in the course of an argument which had broken out (as in Attorney General's Reference No 29 of 2014 (R v Nichols) [2014] EWCA Crim 1314).
47. In R v Young (Treacy LJ, King J and the Recorder of Westminster) the defendant pleaded guilty to manslaughter shortly before trial, and was sentenced to a term of imprisonment for public protection with a minimum term of eight and half years (representing a notional determinate term of 20 years before credit for plea). The court concluded that the sentence was too long because it did not sufficiently allow for the situation which led to the fatal confrontation. It said, at para 53, that the appropriate starting point before credit for plea would have been "somewhat over 16 years in this case" and reduced the minimum term (with credit for plea) to 7 years.
48. The killing in that case occurred against the background of a history of animosity between the defendant and the victim. After a confrontation outside the defendant's house, involving members of his family, and the victim's brother, the victim and his brother returned for a fight and stood outside the defendant's gate shouting threats to kill. The defendant went outside picking up a knife as he did so. He saw the victim running towards the gate which was open, went up the path to meet him and stabbed him once in the stomach. According to the basis of plea, accepted by the judge, the defendant's knowledge of the background and the victim's reputation was such that he believed the victim had a weapon and something serious might happen; and his intention was to keep the victim away from himself, his children (who were in the house) and his property.
49. The case before us is in our judgment more serious than that of Nicholles or Young. The distinctive feature of this case (that this was a premeditated and well-planned stabbing with a knife (or knives) deliberately brought to the scene for that purpose) increased both the level of foreseeable risk, and the individual culpability of the participants to a very high degree, notwithstanding their differing intents.
50. Gordon was convicted of murder because he intended to cause serious injury, and Huggins and Clarke of the lesser offence of manslaughter because they intended only to cause some harm. But it was entirely foreseeable to all concerned that death might result from what they planned to do. As the judge put it, stabbing with a knife is not a precision exercise; and all three knew stabbing a man repeatedly with a knife or knives led to the inevitable and high risk that he could be killed. The seriousness of the offending was moreover aggravated by the fact that the attack was by a group of men at night, in a public place, on a victim who was alone, and vulnerable.
51. The narrow, but important, distinction between the intent of Gordon on the one hand and of Clarke and Huggins on the other gives rise to a stark difference in sentence. Gordon will serve the whole of his minimum term. If released on parole, he will remain subject to a life licence which will remain in force for the rest of his life. He may therefore be recalled to prison at any time to continue serving his life sentence if it is considered necessary to protect the public. In contrast, Huggins and Clarke will serve no more than half of their determinate terms for the manslaughter, with an equivalent determinate period on licence after their release. Gordon will spend at least 18 ^[2] years in custody for the murder; whereas Huggins and Clarke will serve no more than 4 ½ years for the manslaughter.
52. To point out this difference in outcome is not to equate in a mechanistic way the offence of involuntary manslaughter with that of murder, still less the sentences for those two offences, a course which counsel for both Huggins and Clarke urged us not to follow. As was said in Appleby at para 3, manslaughter is not murder, and cannot be sentenced as if it were. But it is possible to be true to the distinction between the offences, whilst recognising that some cases of manslaughter are much closer to murder than others, and must be sentenced accordingly. Increasing the sentences for manslaughter in this case to a level that is commensurate with the seriousness of the offending does not involve a blurring of the boundary between murder and manslaughter. Notwithstanding the significant increase in sentence that we consider to be merited on the facts of this case, the legislative regime for sentencing murder ensures that the gulf between the sentences for the different offences will remain an appropriately large one.
53. As we have said, Clarke was marginally under 18 at the time of the offending, and Huggins was only a year older. As to that, the judge took the view that though they were both young, the significant risk (at the very least) of serious injury to the victim from the planned attack involving the use of knives must have been apparent to them both. Nonetheless age and maturity are obviously relevant to culpability, and therefore to sentence, and in considering the sentences that should be substituted for those the judge imposed, we have taken these matters into account. One cannot take the factual comparison between different cases too far, and we note that the offenders in Young and Nicholles were of middle age with significant convictions for violence. We nonetheless think the notional determinate sentence of fourteen years and "somewhat over sixteen years" in those cases indicate that had the offenders in this case been older, their sentences would have exceeded, by some margin, those which we now intend should be substituted for those imposed by the judge.
54. We have already said that in our judgment the sentences for manslaughter were unduly lenient. We therefore give leave. Like the judge, we do not distinguish between Huggins and Clarke for the purposes of sentence. We quash the sentences of 9 years' detention for manslaughter, and substitute for them a sentence of 15 years' detention in each case. The consecutive sentence of 1 year for Huggins for the offence of perverting the course of public justice will remain unchanged, as will all other ancillary matters which the Judge dealt with.

Gordon

55. We turn then to the application for permission to appeal against sentence made in respect of Gordon. This focuses on three issues: age, maturity and disparity.
56. Mr Marshall Andrews QC in his succinct submissions, acknowledges as he did below, that the correct starting point for determining the minimum term for Gordon was 25 years, by virtue of Paragraph 5A of Schedule 21 of the 2003 Act. He points out that Gordon was only marginally over the age of 18 when he committed the offence. Had he been under 18, by virtue of Paragraph 7 of Schedule 21 of the 2003 Act, the appropriate starting point in determining his minimum term would have been one of 12 years, notwithstanding the use of the knife taken to the scene. Further he draws attention to what Dr Rogers said, in his psychological report placed before the judge in mitigation, namely that Gordon's "memory elements are so poor they fall into the category of learning disability".
57. Having said that however, Mr Marshall Andrews QC acknowledges the judge took Gordon's age, his immaturity and lack of criminal sophistication into account; and the focus of his argument before us, has been on disparity. The three men were he says, engaged in the same enterprise albeit with differing intentions, and Huggins and Clarke were aware of the possession of a knife or knives in circumstances that could have founded a murder conviction before the decision of the Supreme Court in R v Jogee [2016] UKSC 8; [2016] 1 Cr App R 31. The narrow difference between them nonetheless led to a huge gulf between their sentences, and should he submits, lead to an adjustment of the minimum term of his young client.
58. We are not persuaded the minimum term was manifestly excessive or arguably so.
59. Mr Marshall Andrews QC was right not to press the issues of age, maturity and sophistication. In our view, a marginal difference in age would not have led to a lower minimum term that the one the judge arrived at: see the observations from Odegbune and ors [2013] EWCA 711, at para. 30 -32, and the last sentence of para 44 above. The judge was in a good position to assess matters of age and maturity having dealt with the trial, and we see no reason to suppose she failed to give them sufficient weight. We would add that Dr Roger's report, apparently prepared in haste, seems to us to have been a somewhat theoretical analysis. It was made, and deliberately so, as we read the report, without reference to Gordon's evidence, which on the face of it, gave a detailed and elaborate account of the events in question. Nor did it refer to any of the other evidence in the case. It made no reference in particular to the evidence of Gordon's character witnesses as to his abilities and accomplishments which might, on one view, have undermined the somewhat negative view Dr Rogers apparently took as to those matters.
60. The significant difference, as we accept it is, between the terms to be served by the three men results from the different offences of which they were convicted; and not from any objectionable disparity. In short, Gordon was convicted of murder; Huggins and Clarke were not. Moreover, part of the foundation for the disparity argument has been removed by our decisions on the references by the Attorney General in the cases of Huggins and Clarke. Permission to appeal against sentence is therefore refused.

Note 1    “[C]rimes which result in death should be treated more seriously, not so as to equate the sentencing in unlawful act manslaughter with the sentence levels suggested in schedule 21 of the 2003 Act, but so as to ensure that the increased focus on the fact that a victim has died in consequence of an unlawful act of violence, even where the conviction is for manslaughter, should, in accordance with the legislative intention, be given greater weight.”     [Back]

Note 2   Assuming for the moment, a discount from the minimum term of some nine months, to take account of the concurrent sentence of 18 months for perverting the course of justice.    [Back]