Neutral Citation Number: [2010] EWCA Crim 2900
Case No: 2010/02046/A3 (1)
2010/02048/A3 (2)
2010/02045/A3 (3)
2010/02047/A3 (4)
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HIS HONOUR JUDGE STEPHENS QC
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 09/12/2010
Before :

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE CALVERT-SMITH 
and
MR JUSTICE GRIFFITH WILLIAMS
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Between :

	R		
	- v -		
	Jumah (1)		
			
	R		
	-v-		
	Maina (2)		
			
	R		
	-v-		
	Osei-Owusu (3)		
			
	R		
	-v-		
	Jammal Chambers (4)		

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Mr I Peart QC for  Jumah (1)
Mr J Hasslacher for Maina (2) 
Mr M Dennis QC for Owei-Owusu (3)
Mr G Trembath QC and Mr A Bell for Chambers (4)
Mr J Laidlaw QC for the Crown

Hearing dates : 23rd November 2010
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Judgment

The Lord Chief Justice of England and Wales: 
1.	This is a Reference by Her Majesty’s Attorney General of sentences imposed on 22nd March 2010 by His Honour Judge Stephens QC at the Central Criminal Court on four defendants who were part of a gang of seven men who fell to be sentenced on the same occasion for their involvement in a conspiracy to rob a store in Hackney which culminated in the murder of the duty manager.
2.	The essential facts are summarised in Judge Stephens’ sentencing remarks.  On the evening of 22nd March 2008, when nearly £20,000 was being kept in the safe of the Matalan store in Hackney, the duty manager, Mr Jamie Simpson, went about his duties, collecting up the takings for the day, unsuspecting that any robbery was afoot, when he was suddenly confronted by Kobina Essel, who stabbed him three times, once in the neck, severing his carotid artery, and twice in the back.  These events were shown vividly on CCTV.  Those who were with Essel ran away, and no money was taken.  
3.	The seven defendants were part of the conspiracy to rob Mr Simpson.  Although the robbery was bungled in its execution, it was carefully and professionally planned for a considerable period.  The inside information came from a man called Williams, who, in gross betrayal of trust, provided all the necessary information about the layout of and security procedures at the store.  The role of the remaining conspirators was described by the judge in clear terms.  Jumah was the ringleader and main organiser, who recruited younger men to carry out the actual crime.  Chambers was his right hand man in the planning and recruiting stage.  Essel, Osei-Owusu and Maina entered the store as the perpetrators of the robbery, with assigned roles and wearing disguises.  Owusu was the getaway driver, driving a stolen car which he later set on fire.
4.	In due course Essel was convicted of murder. He was 17 at the date of the murder, a man without previous convictions. He was sentenced to detention during Her Majesty’s pleasure, and the minimum term to be served was assessed at 20 years.  For conspiracy to rob concurrent sentence of 11 years in a YOI was imposed.  This 20 year minimum term is the equivalent to a determinate sentence of 40 years.   
5.	After pleading guilty to conspiracy to rob three defendants were convicted by the jury not of murder, but of manslaughter.  They were Jumah, Maina, and Osei-Owusu.  After the jury was unable to agree verdicts on the murder charge, the Crown did not seek a re-trial. The basis of these convictions was that notwithstanding their denials each of them knew that Essel was carrying a knife, and that he might use it in the course of the robbery to cause some degree of physical injury.
6.	Chambers, Williams and Owusu were acquitted of murder or manslaughter.  They were convicted of conspiracy to rob.
7.	(a)  Jumah was born in August 1984.  Apart from one minor conviction, he was a man of good character.  He was sentenced to 14 years’ imprisonment for manslaughter and 12 years’ imprisonment concurrent for conspiracy to rob.  (b) Maina was born in December 1989, therefore 18 years old at the date of the offences, and 20 years old when convicted.  His previous convictions included a conviction for murder.  This conviction arose from an incident in October 2007 when he committed a murder with a knife which he was carrying.  He was arrested in October 2007 and bailed, and arrested again on 30 January 2009 and charged with murder.  At the date of these offences he was on police bail on suspicion of murder and at the date when he was sentenced he was already subject to an order detaining him for life with a minimum period assessed at 14 years.  His appeal against conviction was dismissed on 7 December. He was sentenced to detention for public protection (which meant detention in a Young Offenders Institution for this purpose) with a minimum term of 6 years for manslaughter, and 5 years concurrent for conspiracy to rob, both sentences to be concurrent to the sentence he was serving following his conviction for murder.
(c) Osei-Owusu was born in March 1992.  He was 15 years old, just coming up to 16 years, at the date of the offences, and 17 years old when he was convicted.  He had no previous convictions.  For manslaughter he was sentenced to 9 years detention under section 91 and 6 years concurrent for conspiracy to rob.  
(d) Chambers was born in May 1982 16 years old at the time of the offence, and 18 at the date of conviction.  He had no previous convictions.  For conspiracy to rob he was sentenced to 7 years detention in a YOI.
8.	Williams was 29 years old at the date of the offence, and following his conviction by the jury of conspiracy to rob he was sentenced to 10 years’ imprisonment.  Dwayne Owusu was 20 years old when he was convicted.  He had previous convictions, but none in this category.  Following his conviction by the jury for conspiracy to rob he was sentenced to 8 years’ imprisonment.
9.	The sentences imposed on Jumah, Maina, Osei-Owusu and Chambers were referred by the Attorney General to this court, but we have examined them in the light not only of the sentences imposed on Essel following his conviction for murder, but the sentences imposed on Williams and Owusu.
10.	The details of this crime are set out in the Reference itself.  We shall adopt the summary for our purposes.
i)	The robbery was planned to take place on Easter Saturday when it was anticipated by the offenders that there would be a substantial amount of cash takings retained in the store.

ii)	Jumah had an old friend (Roy Williams) who was employed as a security guard at the Matalan store.  He provided inside information to Jumah about how to commit the robbery.  He was ultimately convicted of conspiracy to rob and sentenced to 10 years’ imprisonment.

iii)	Jumah and Chambers recruited first Essel and Osei-Owusu, and, latterly, Maina as the team of “youths” who would carry out the robbery.  Telephone evidence established the extensive links between offenders at material times prior to the robbery.  The plan was that Jumah and Chambers would not be present when the offence was committed.  However, significant telephone contacts took place between Jumah and Chambers (who were together at the time) on the one hand and Essel, Maina and Roy Williams on the other while the latter group were there in the store.  This showed their role as organiser and assistant respectively.

iv)	On the day before the robbery, Good Friday the 21st March 2008, Jumah, together with Essel, Osei-Owusu, and Chambers, went to the Matalan store in order to carry out a reconnaissance.  Osei-Owusu and Chambers remained in a taxi outside while the others went into the store.

v)	Essel, Osei-Owusu and Maina entered the store shortly before closing time on 22nd March 2008 (7.00pm).  They wore the hoods of their tops up so that they could not easily be identified.  After the store closed, they lay in wait in the stairwell for about 1 hour while Mr. Simpson collected the takings from the tills.  Essel and Osei-Owusu went on to the shop floor while Maina acted as the look-out on the stairs.  Essel went to confront the deceased once all the takings were secured in the cash office.  He stabbed him once in the neck and twice in the back.  This was captured on CCTV.

vi)	Osei-Owusu, a close friend of Essel, was acting as a lookout at the time of the murder, standing some 12 metres behind Essel.  Maina was also still acting as a lookout but out of view of the attack.

vii)	Among other significant telephone contacts, telephone records showed that Chambers phoned Essel at 19:11 while he was inside Matalan, and Maina at 19:37, and Owusu (the getaway driver) at 19:35.  Chambers was with Jumah at this time.

viii)	After the murder, the three robbers fled empty handed and travelled to Jumah’s address where a meeting took place at which all these offenders were present.

ix)	The seventh man convicted of conspiracy to rob, Duane Owusu, supplied and drove the vehicle in which Osei-Owusu, Essel and Maina travelled to and from the store.  The vehicle was stolen on 9th March 2008 by persons using a vehicle which was later discovered to have fingerprints from Maina and Duane Owusu on it.  Owusu burnt the car after the offence.
x)	ARRESTS
a)	Jumah was arrested on 4th March 2009.  He made no comment in interview, but produced a prepared statement which accepted some involvement in the robbery but denied any knowledge that weapons were to be used.  He later spoke in interview and continued to admit the robbery but to deny any foreknowledge of the use of a weapon.
b)	Chambers was arrested on 7th March 2009.  He made no comment in interview, but produced a prepared statement which denied any involvement in any offence and denied knowing all co-defendants except Jumah.  After being charged with conspiracy to rob, he issued a further prepared statement in which he admitted knowing Osei-Owusu and Essel.  He admitted going on the reconnaissance trip but said that he had been unaware of its purpose.
c)	Osei-Owusu was arrested on 9th March 2009.  He made no comment in interview.
d)	Maina was arrested on 29th September 2008.  He made no comment in interview.
11.	In summary therefore these four offenders were involved in a conspiracy to rob which culminated in the death of an innocent man, and for which, on the basis of the jury’s verdicts, three bore a measure of responsibility which did not extend to participation in his murder.  The Reference distinctly identifies the aggravating features of the offences of manslaughter and conspiracy to rob.  We understand the convenience of this approach, provided that it does not obscure the reality that for each offender the sentencing decision was a single decision intended by the judge to reflect his overall culpability, and the judge’s assessment of the relative criminality of each defendant in the light of the verdicts of the jury.
12.	However it is examined, this was a serious planned and organised conspiracy to rob a store, focussed on a time and date when the proceeds of crime would be at their greatest, and all premised on the basis of inside information and preceded by a reconnaissance on the day before the attack.  It was integral to this conspiracy that if necessary force would be used to achieve its objective, and three of the four offenders knew that one of their number who entered the premises would be carrying a knife, at the very least to threaten or cause minor injury.  At the same time none of these offenders was convicted of murder, and the sentences on them had to be circumscribed by the jury verdicts.  In particular the jury was not satisfied in the case of those who knew that a knife would be carried, that it would be used to cause really serious harm, let alone death, with the necessary intent for murder.  Nevertheless the death was a direct consequence of a knife being taken to the scene of a planned robbery directed against an individual who was especially vulnerable just because he had been betrayed by the security guard.
13.	Pre-sentence reports were available for the sentencing decisions for Jumah, Chambers and Osei-Owusu. They are summarised in paragraph 9 of the reference.  
i)	Jumah: - There was a Pre-Sentence Report by Tamanna Sharma dated 18th March 2010.  Jumah told her that he was the organiser of the robbery, but that he had stipulated that no weapons were to be carried.  The probation officer expressed the view that Jumah presented a low risk of re-offending.
ii)	Chambers: - There was a Pre-Sentence Report by Rebecca Warwick dated 19th March 2010.  He told her that he continued to deny any involvement in the offence.  The probation officer expressed the view that he presented a medium risk of re-offending.   She advised that he had clearly demonstrated the potential of dangerousness and that the Court could properly sentence “within the IPP framework”.
iii)	Osei-Owusu: - There was a Pre-Sentence Report by Melanie Benzie dated the 18th March 2010.  He told her that he committed the offence of conspiracy to rob because his family were in financial difficulties.  He had been recruited by Jammal Chambers.  He continued to deny that he had known that Essel had a knife.  The probation officer expressed the view that he displayed genuine remorse although he “struggles to accept his conviction for manslaughter”.  She recorded the fact that he had been excluded from school after threatening another pupil with a Stanley knife.  This incident occurred in 2007 and was a response to Randy Osei-Owusu being bullied.  The incident did not result in a prosecution and there had been no repetition of such behaviour once the defendant had moved to another school.  She reported that although there was some risk of harm extant in his current circumstances “the risk is not imminent and he is unlikely to cause serious harm unless his situation changes”.  She concluded that he was not a “dangerous offender” for the purposes of the Criminal Justice Act 2003.
iv)	Maina:- There was no Pre-Sentence Report.
14.	The sentencing decision was extremely difficult.  Judge Stephens had to honour the verdicts of the jury, and to impose sentences which reflected the relative culpability of each of the defendants in the context of their ages and previous records, and in the light not only of the complicated statutory provisions which applied to the case, but also the developing jurisprudence of this court, in particular in the context of the relationship between the sentences now appropriate for murder, and the sentences for manslaughter.  He was provided with copious material on these issues, which he obviously addressed.  Judge Stephens is a highly respected judge, with years of experience of trials of criminal offences of great seriousness and magnitude.  The trial itself lasted 33 days, and he would have been well able to form his own judgment on the relative culpability of each of the defendants. 
15.	We immediately acknowledge the care with which Judge Stephens approached these issues and the respect his conclusions command.  He reminded himself in unequivocal terms of the recent observations of this court in the context of what he himself described as the horrors of knife crime and the terrible consequences following the use of a knife.  He expressly identified as aggravating features that a knife was carried on the robbery expedition, that the robbery involved planning and premeditation and theft by violence of a large sum of money.
16.	Dealing with the four offenders, when he sentenced Maina Judge Stephens recorded that there were substantial aggravating features, not least that he had already been convicted of committing murder with a knife.  He recognised that Maina may have become involved very late in the crime, but he entered the store knowing that Essel was carrying a knife and that he might use it to cause harm to whomever got in his way.  He took account of the late plea by Maina of guilty to conspiracy to rob. Before us, it was suggested that the sentence was within the appropriate range, but if lenient, not unduly so.  In particular it was necessary to underline that despite his conviction for murder Maina was still a young man, and that he had come into this particular conspiracy at a late stage. 
17.	Judge Stephens then dealt with Jumah.  He said to him in terms that he bore “very heavy responsibility” for Mr Simpson’s death.  He had organised the robbery, planning it in detail and with care, and recruiting younger men in order that this would help him to distance himself from events which would inevitably take place in the store.  He added that Jumah knew that Essel was carrying a knife and that he might use it, yet, as the judge put it, he “sent him off to do the robbery”.  The crime was organised for financial gain without a concern for what might happen to a potential victim.  He took into account the early guilty plea to conspiracy to rob but added that the aggravating features in his case were serious.  It was submitted to us that Jumah had no relevant previous convictions.  The plan for the robbery was put to him by Williams, and that, whatever his role in the recruitment of others, he did not corrupt any of them.  He had not used a knife and notwithstanding his conviction his criminality was significantly lower than that of Essel.  Moreover, there was evidence that Jumah was genuinely remorseful and that the risk of re-offending was low.
18.	In the case of Osei-Owusu Judge Stephens immediately identified the particular problems which arose in his case because he was only 15 years old at the time of the robbery, some 9 days short of his 16th birthday.  He noted the many references which spoke well of him, and the shock expressed that he had become involved in these crimes.  He considered the offender’s level of maturity, noting that he was described as “impressionable”.  On the other, notwithstanding his age, he concluded that he entered into the offence with his eyes “wide open to make money”, and that although he had every opportunity to withdraw from it, he made a deliberate decision to participate in the crime.  We were invited to bear in mind that in the present context this offender became involved when he was extremely young, that he was not involved in the planning, and since his arrest he has committed himself to rehabilitation which has continued to this day, with excellent reports on his progress.
19.	In the case of Chambers, again Judge Stephens reflected the verdict of the jury, convicting him of conspiracy to rob, but acquitting him of manslaughter.  He noted his age, that he had a supportive family who had given him every opportunity to make progress in life.  He had become embroiled in the conspiracy “with the hope of making a lot of money quickly and easily”.  He proceeded on the basis that he had been led into the scheme by Jumah, but however that might be, he had a heavy responsibility of his own as the recruiting officer who led others into taking part in the enterprise with, as he put it, such disastrous consequences.  We were reminded that Chambers did not know that a knife or that any other weapon would be taken on the robbery.  His real role was secretarial, subservient to Jumah, and led into it by him, as an older member of his extended family.  Our attention was drawn to the sentence imposed on Williams, who in breach of trust had made the first suggestions for and was closely involved in the robbery.  
20.	Mr Jonathan Laidlaw QC on behalf of the Attorney General submitted that the sentences on all four offenders were unduly lenient, but he also highlighted a number of distinct features of the sentencing decision which required attention.  We shall address them briefly, although in a different order.  The first and main question was whether the sentencing on Jumah, Maina and Osei-Owusu for manslaughter was adequate to reflect the unlawful killing which occurred while the conspiracy to rob was being carried out.  Two particular aspects of the argument need attention.  The first is that it is now well established that in order to take account of the statutory guidance provided for sentencing in cases of murder enacted in schedule 21 of the 2003 Act, the approach of the court to sentencing in cases of manslaughter has been re-appraised.  The outstanding examples are Appleby and others [2009] EWCA Crim 2693, in particular at paragraphs 15 and 16 and Wood [2010] 1 Cr App Re (S) 2 where it was suggested that the inevitable conclusion was that Parliament intended that “crimes which result in death should be treated more seriously and dealt with more severely than before”.  The second feature, identified by Judge Stephens, arises from the very simple fact that a knife was carried on this robbery and ultimately used to inflect death.  This court has been at pains to indicate that this is a seriously aggravating feature of any case involving violence of any kind.  (R v M, AM and Kika [2009] EWCA Crim 2544. For the offenders it is argued that the judge had these features well in mind.  All the relevant authorities were before him.  He identified the presence and the use of the knife as an aggravating feature of the case.  Therefore, there is no reason to interfere with his conclusions.
21.	We can express our own conclusions shortly.  Manslaughter committed by the misuse of a knife in the course of a planned robbery is an offence of the utmost seriousness.  That is what the pronouncements of this court have been driving at.  Jumah was the organiser of this offence, the man who recruited younger men to participate in it, and then sought to distance himself from it by letting them commit the robbery while he kept his distance from it.  A determinate sentence of 14 years’ imprisonment did not sufficiently reflect his overall criminality or the true measure of his culpability.  The sentence was unduly lenient.  The sentence for manslaughter will be increased to 18 years’ imprisonment.
22.	In relation to Maina the sentence failed to reflect the fact that the second homicide offence of which he was convicted, committed while he was on bail for the first homicide offence, has resulted in no additional punishment at all.  Although he is still young, it is inappropriate that the punitive element of the sentence to be imposed on him for this manslaughter should in effect be entirely subsumed in the sentence imposed on him for the earlier murder.  We do not agree with the submission that at the end of the current 14 year minimum period to which he is subject, effect would be given to these elements by the Parole Board.
23.	A number of different ways of dealing with this situation have been considered in argument.  We have focussed on the practical realities, acknowledging that it is impossible to avoid, either the imposition of a shorter than merited sentence consecutive to the minimum term already being served, or, alternatively, a longer than deserved concurrent sentence for the instant offence in order to produce the element of further punishment.  Overall the issue of totality is of importance in the context of this man’s age.  The appropriate solution in this case is to make an order for detention in a Young Offender Institution for public protection to run consecutively with the existing mandatory life order, with a minimum period assessed at 6 years, also as we make clear for the avoidance of doubt, to run consecutively to the minimum term of 14 years already being served for murder.
24.	Osei-Owusu was very young when the offence was committed.  He was the youngest of those involved, a youth of excellent character, who has since made genuine efforts to put this offence behind him and who is working steadily towards his current target release date.  Given all these factors, the sentence imposed on him was not unduly lenient, and we decline to interfere with it.
25.	The remaining questions are directed to the sentence on Chambers.  The first is the relevance, if any, of the fact of the death to Chambers’ conviction for conspiracy to rob.  Our attention was focussed on section 143(1) of the 2003 Act which provides three ways in which the seriousness of an offence may be affected in the context of harm caused by the offence, or intended to be caused by it or harm which it might foreseeably have caused.  On this basis Mr Laidlaw submitted that the seriousness of the conspiracy to rob, and therefore all those involved in it, was aggravated by the death.  The problem with the submission is that Chambers was tried and acquitted of both manslaughter and murder, and the judge had to be loyal to that verdict.  It would of course be wrong as a matter of principle for the provisions of section 143(1) of the 2003 Act to be used to impose a sentence on a defendant for an offence with which he has not been charged, or – as in this case -  of which he has been acquitted.  While Section 143(1) is concerned both with the harm caused and likely to be caused by the offence of which the defendant is convicted this offender had to be sentenced on the basis that he entered into an agreement to rob without the use of knife or other weapon. It was not a foreseeable consequence of his offence that the victim would be stabbed let alone fatally stabbed, during the course of the agreed offence.  It would therefore be an injustice for him to receive additional punishment because, without his knowledge, and outwith the agreement which he had joined, one of his co-conspirators did take a knife and used it with fatal consequences.
26.	We must now consider the sentence imposed on Chambers on the basis of the offence of which he was convicted.  We accept that there is a hint of lenient disparity between his sentence and that of Osei-Owusu, who was aged 15 at the time of the offence, but equally, there may be a hint of disparity in the other direction, in relation to the sentence imposed on Williams.  Our conclusion is that we can see no ground for interfering with the judge’s sentencing decision on this ground.  That leaves the offender as a young man for whom rehabilitation remains a matter of cardinal importance, a young many who, as we have emphasised, has not been convicted of criminal involvement in the death.  There is nothing in the pre-sentence report to indicate that he falls within the “dangerousness” provisions of the 2003 Act, and even if there had been such evidence, if the judge had chosen to ignore it and form his own judgment based on his assessment of Chambers throughout the whole trial we should have been most unlikely to interfere with it.
27.	We therefore do not accept that the sentence on Chambers fell outside the reasonable ambit of the sentencing decision, we shall not interfere with it.