England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		No: 201705301/A1 Royal Courts of Justice Strand London, WC2A 2LL
		Friday, 25 May 2018

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1. MR JUSTICE MARTIN SPENCER: By his notice and grounds of appeal dated 1 December 2017, the appellant appeals against the sentence imposed upon him by His Honour Judge Lees at the Central Criminal Court on 3 November 2017.
2. He brings this appeal with the leave of the single judge.
3. The facts of this matter are that the appellant, together with others, became radicalised and formed the joint intention to travel to Syria for the purpose of fighting with fundamentalist Jihadist groups and ultimately dying so that in death they would achieve martyrdom.
4. The events came to light in 2016 when one Yusuf Alsyed came to the attention of the police by a school referral and subsequent action by an organisation called "Prevent", a community safeguarding programme relating to the threat from terrorism.
5. The Alsyed family had been on holiday to Egypt during the summer of 2016 and upon their return they were subject to checks and their mobile phones were seized. Analysis of those phones showed contact with a facilitator in Yemen about potential travel to Libya or Syria and among those contacted by the Alsyeds were the appellant and his co-defendant, to whom I shall refer as "FN".
6. In December 2016 the appellant and FN had booked flights to travel together to Istanbul on 14 February 2017. The appellant obtained the necessary visas and had booked the flights. Over a 3-month period prior to the proposed date of travel their plans had intensified. The day before his arrest the appellant had obtained electronic visas for entry into Turkey. Preparations had included obtaining equipment such as rucksacks, torches, a water purification device and a First Aid kit. The appellant had provided a third party's address for delivery of bags they were to take and had acquired two knives which were found along with the other items that the appellant intended to take with him. For his part FN had sought to obtain Turkish currency. Communications between the appellant, FN and others demonstrated that the appellant was committed and radicalised and that his aim had been to obtain martyrdom on the battlefield. The appellant had been in contact with a man purporting to be an ISIS facilitator and through him the appellant had arranged to be smuggled into Syria from Turkey.
7. The appellant and FN had been providing help, support and encouragement to each other. The extent of the appellant's radicalisation is demonstrated by the nature and volume of communication between the appellant and others. The planning and preparations included discussions about wiping out any forensic trail.
8. On the morning of 14 February 2017 searches were conducted at the related addresses of the appellant and FN. The appellant and FN were packed and ready to leave. Electronic devices and a bank card were seized. On 20 February 2017 the appellant's address was searched again and the appellant was arrested on suspicion of commission, preparation or instigation of a terrorist act. At the material time he was aged 17.
9. On 6 July 2017 the appellant pleaded guilty to one offence of engaging in conduct in preparation of terrorist acts, contrary to section 5(1) of the Terrorism Act 2006, an offence carrying a maximum sentence of detention for life.
10. His basis of plea was as follows:

1. He wished to help Muslims who were suffering in Syria under Bashir Al Assad (President of Syria).

2. The appellant did not agree with or support ISIS and would not join that group or stay under their jurisdiction. Instead he intended to support one of the other groups opposed to the Syrian government.

3. The appellant had no hotel booked in Turkey, insufficient money with which to be smuggled into Syria and no plans as to what he would do once he was received in Syria. He had no tazkiya to join any group. He had booked a return flight as there was a strong likelihood that his plan would not succeed.

4. The appellant's preparations were not sophisticated or well planned and it was unlikely that he would have got far.

11. The appellant, together with FN, came before His Honour Judge Lees on 3 November 2017 for sentence. The learned judge ruled that the matters raised in the basis of plea did not require a Newton hearing as they made little, if any, difference to sentence.
12. In his sentencing remarks the learned judge referred to the guidance on sentences for adults in cases involving section 5 of the Terrorism Act given by this court in the case of R v Mohammed Abdul Kahar [2016] EWCA Crim 528. However, noting that the appellant was under the age of 18, the learned judge also reminded himself that he should have regard to the Definitive Sentencing Guideline in relation to Sentencing Children and Young People. Those guidelines direct the sentencing judge to have regards to the principal aims of the Youth Justice System of preventing offending and the defendant's welfare, the primary aim being to encourage the offender to take responsibility for his actions and to reintegrate the offender into society rather than to punish. The learned judge reminded himself that a custodial sentence must only be used as a measure of a last resort, that it must be the shortest sentence commensurate with the seriousness of the offence.
13. In Kahar, this court had identified six levels of offending and the learned judge found that the appellant's offending fell within the level 5 bracket. In paragraph 33 of the judgment in Kahar the court had set out a typical level 5 case of an offender who sets out to join a terrorist organisation engaged in a conflict overseas but does not complete the journey, or an offender who makes extensive preparations with a real commitment but does not get very far. In such a case, where the offender is not "dangerous", the range of a determinate sentence is likely to be between 5 and 10 years.
14. The learned judge found that the following aggravating factors applied: the high degree of planning over 3 months and involving communication with the ISIS facilitator based in Syria; the significant duration of the offending over a 3-month period; the deep and extensive radicalised beliefs held demonstrated by the material found throughout the messaging; the encouragement of others including FN and the Alsyeds to go on Jihad to Syria and Iraq; the intention to travel with others and each other and the providing of assistance and support to each other.
15. In relation to mitigation, this was principally the appellant's young age and the fact that he had no previous convictions.
16. Sentencing the appellant the learned judge found that had he been an adult with no convictions after trial the sentence would have been one of 7 years' imprisonment. He reduced that sentence by 20% to reflect the stage at which the appellant had pleaded guilty, after the plea and case management hearing. That had the effect of reducing the sentence to 67 months. He then said this:

"Considering seriousness of the offence, your high culpability, your leading role in this offending and your continuing radicalisation, I have decided that in your case the reduction for your age should be in the region of 25 per cent of the sentence for an adult."

This had the effect of reducing the custodial term to one of 4 years and 2 months.

17. In addition, the learned judge considered the issue of dangerousness. He said:

"The leading role that you took, the seriousness of what you intended to do - the presence of two knives amongst your equipment, your deep-rooted radicalisation, your difficulty in seeing that what you did was wrong, and your ongoing motivation to travel abroad to join others and participant in what you perceive to be humanitarian-motivation activities - lead me to the conclusion that there is a significant risk that you will commit further specified offences and by doing so you will cause serious physical or psychological harm to one or more people. In other words, you will try again and I judge that risk to apply to acts to this country as well as abroad. I have taken into account the need to protect the public along with the other factors I have mentioned in reducing this sentence by less than the 33 per cent to 50 per cent suggested in the Youth Guidelines. So, in your case there will be an extended sentence of detention to protect the public."

18. In addition to the custodial term of 4 years and 2 months the learned judge imposed an extended licence period of 4 years which he considered to be the shortest custodial term that he could impose commensurate with the seriousness of the offending.
19. On this appeal there is essentially a single ground of appeal, namely that the learned judge was wrong in principle to reduce the discount recommended for defendants aged 15 to 17 on the basis of (i) the seriousness of the offence and (ii) the need to protect the public.
20. It is submitted by Mr Wainwright, on the appellant's behalf, whose submissions the court found extremely helpful, succinct and well-reasoned, that the two factors referred to should not have been relied upon in order to reduce that discount. First, the seriousness of the offence was a factor in determining the length of the sentence in the first place so that it is submitted that it cannot also be a reason for reducing the discount as that would entail double counting. So far as the protection of the public is concerned, relying onto R v Filor [2012] EWCA Crim 850, Mr Wainwright submits that it is not permissible artificially to inflate the sentence so that it exceeds 4 years thereby allowing an extended sentence to be passed owing to a perceived need to protect the public. In Filor the court held that:

"... when calculating the notional determinate term which the offence calls for, it is not permissible to inflate it in order to bring the case within the statutory condition of a minimum term of at least two years. Nor is it permissible to inflate it because the defendant is a risk for the future. The reason for the first is that if the sentence were inflated simply in order to pass a sentence of imprisonment for public protection, that would immediately render the statutory condition of no effect, and the statutory condition is meant to have effect. The reason for the second bar is that it involves double counting the danger because that, in a case where a sentence of imprisonment for public protection is permitted, is catered for by the imposition of that kind of sentence. In other words, the very plain intention from the words of the statute provided for the courts by Parliament is that an indefinite sentence cannot be justified simply by the risk which the defendant presents. It must be reserved for offences which call for a substantial sentence of four years or more, irrespective of risk. Moreover, the same principle is implicit in section 153(2) of the 2003 Act, since that requires that any custodial sentence must be imposed for the shortest term within the permitted maximum which is commensurate with the seriousness of the offence or offences for which it is passed. There is no room for doubt that that is the law and it has rightly not been in question before us."

21. Mr Wainwright further refers the court to paragraphs 4.5, 4.10 and 6.46 of the guideline for sentencing young offenders and the reasons set out for there being a recommended reduction in sentence for 15 to 17 years old. He submits that the basis for the reduction is to recognise the lower culpability of young offenders by reason of their age, immaturity and vulnerability. He submits that these are considerations which apply regardless of the offence and whatever the perceived future risk. Mr Wainwright reminded the court that the appellant had only recently turned 17 at the time of offending and was still 17 years old at the point of sentence. He relied on passages from the pre-sentence report which confirmed the appellant's vulnerability, his susceptibility to peer pressure and the level of immaturity. While recognising that the guidelines are not to be applied mechanistically, Mr Wainwright submits that there must be a good reason for withholding the recommended discount and he interprets the learned judge's reference to applying a lower discount due to the need to protect the public as meaning that the discount was withheld in order to ensure that an extended sentence could be passed.
22. In granting leave to appeal the single judge held that it was arguable that the learned judge erred in withholding the full reduction in sentence due to a perceived need for public protection and had thereby erred in imposing an extended sentence as, with the appropriate reduction, the determinate sentence would have been 4 years or less and therefore would not have qualified for an extended term.
23. In our view, Mr Wainwright is not correct to characterise the withholding of the full discount by the learned judge as simply a mechanism applied in order to ensure that an extended sentence could be passed and, to be fair to him, Mr Wainwright did not press that point in his submissions before us.
24. In our judgment, the factors relied upon by the learned judge in reducing the discount from that recommended in the guidelines down to 25% were matters which he was entitled to rely upon. The matters to which he referred - the appellant's leading role, his deep-rooted radicalisation, his lack of insight in ongoing motivation indicating he would try again - were matters which indicated a maturity and resolution of purpose which belied the appellant's chronological age.
25. At the date of sentence the appellant was only days away from his 18th birthday and, in our judgment, the learned judge's approach to the appropriate discount for the appellant's age was one which fell within his discretion. He could have expressed himself more felicitously but, in the end, we take the view that he had grounds upon which he could find that the discount should only be 25% in the particular circumstances of this case.
26. In those circumstances, he was entitled to make his finding of dangerousness and to impose the extended licensed period. We have taken the view, looked at as a whole, that the sentence imposed was not manifestly excessive and for those reasons we dismiss the appeal.