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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 >> Lewinson v R. [2016] EWCA Crim 1969 (21 December 2016) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2016/1969.html Cite as: [2016] EWCA Crim 1969

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IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
HIS HONOUR JUDGE HONE QC
T20157241

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/12/2016

His Honour Judge Dean QC:

1. On 1 April 2016 in the Central Criminal Court (H.H.J. Hone QC) the appellant was convicted of manslaughter. He had been indicted for murder, and so the jury's verdict meant they had concluded they could not be sure he had had the requisite intent for that offence.
2. On 13 May 2016 H.H.J. Hone QC sentenced the appellant to detention for life and 9 years' detention was specified as the minimum term under s.82A Powers of Criminal Courts (Sentencing) Act 2000. That minimum term reflected a notional determinate sentence of 18 years' detention.
3. He appeals against sentence by leave of the single judge.

Facts

4. Shortly before 6 p.m. on 10 June 2015, the victim Stefan Appleton, who was 17 years old, was with a group of friends next to Nightingale Park in Islington. It was a bright sunny day and families with children were in and around the park.
5. The appellant and a friend arrived near the park on a stolen moped. The friend drove, wearing a helmet, and the appellant rode pillion. He was not wearing a helmet but wore a balaclava and had his hood pulled up covering his head. The appellant jumped off the moped and pulled out a knife. He removed the knife from its sheath which he discarded. He ran towards Stefan Appleton and his friends. They ran away and the appellant chased Stefan who tripped over a low fence and fell over. The appellant was right behind him. As Stefan lay on the ground the appellant stabbed him. One of the blows cut Stefan Appleton's right shin, probably as he kicked out to defend himself. One blow penetrated the left side of his chest, passing through a lung and into his heart.
6. Stefan was able to get up and run away. The appellant started to chase after him but then turned and ran out of the park back to where his accomplice was waiting on the moped. He got back on and they rode away.
7. Stefan collapsed and friends and members of the public went to help. Paramedics attended and he was taken by ambulance to hospital. Stefan Appleton was pronounced dead at 7.45 p.m.
8. The weapon used by the appellant was known as a Zombie Killer. It was a large knife, similar to a machete, about 60 centimetres long with a serration along the top of the blade. The knife was never recovered. We have seen photographs of the type of knife in question. It was rightly described as a fearsome weapon.
9. The appellant and his accomplice tried to avoid arrest and to destroy evidence. They left the moped in a quiet road and arranged for others to burn it. They burnt the clothes they had been wearing and left the helmet used by the accomplice, which would not burn, with a friend. They left London that evening and travelled to Bristol where the accomplice had relatives. They later tried to book flights to Malaga in Spain but were unable to. They returned to London, although not to their own homes. The police arrested them a few days later, each hiding at addresses where they had hoped they would not be found. The appellant made no comment when interviewed.
10. The moped used by the appellant and his accomplice on 10 June had been stolen from a Mr Rabah in a robbery the evening before the attack on Stefan Appleton – some evidence linked the appellant to that robbery and although it couldn't be said he had been directly involved in the robbery, Mr Rabah's moped was being offered to the appellant very soon after it had been stolen.

The Appellant

11. Lewinson is now 18 years old (b. 12 November 1998). He was 17 at the date of conviction and 16 at the time of the offence. The grounds of appeal describe the appellant as having a "minimal history of engagement in offending behaviour" and similar submissions were made before the Court on 16 December. We do not think that phrase properly describes this appellant's earlier offending. As a 14 year old he was dealt with for an offence of battery. He breached the order made on that finding of guilt. When he was 15 he pleaded guilty to possession of an offensive weapon, a lock knife. Part of the order made on that occasion was that the appellant was to participate in a knife crime prevention course. He had completed that course before the events of 9/10 June 2015. In March 2016, in fact during his trial at the Central Criminal Court, and then again in April 2016 whilst awaiting sentence, he was in possession of prohibited articles in prison – on 1 June 2016 Detention and Training Orders were imposed for these matters. In other respects, although to some extent these matters are disputed, his prison disciplinary record has been poor. He is said to have been involved in fights and to have been found with makeshift weapons.

The Grounds of Appeal

12. In succinct written and oral submissions, it is said that the learned judge was wrong to find that the appellant was a dangerous offender and wrong to determine that detention for life was required. In any event, it is argued that the notional determinate sentence was set too high (at 18 years). It is acknowledged that a lengthy term of detention was required.

Sentencing remarks

13. As appropriate, particularly given the age of the appellant, the learned judge's sentencing remarks were detailed, both in terms of describing the factual basis for sentence and in explaining why he had reached the conclusions he did. We will return to the sentencing remarks in due course.

Discussion

14. Significant weight has been attached in this appeal to what are said to be errors in the pre-sentence report. Some matters complained of can only be of peripheral relevance.
15. It is claimed that the author of the PSR had presented Lewinson's behaviour towards staff in the detention centre as poor. In fact, the author describes his behaviour as "mixed", and positive as well as negative aspects of his behaviour are noted.
16. The report's reference to the appellant being a gang member ought not to have been included in the report, but that reference was of no significance at all; HHJ Hone Q.C. knew during the trial about suggestions that this was gang related violence and that the appellant was a gang member, he ruled that evidence inadmissible/irrelevant during the trial and he said specifically in his sentencing remarks that he put out of his mind suggestions of gang involvement.
17. Lewinson had repeated to the author of the PSR his untruthful account of the events of 10 June, he minimised and sought to justify his actions. The author of the PSR assessed Lewinson as posing a high risk of re-offending both in the community and in custody, he was said to represent "a high risk of violent and psychological harm to his peers, including death".
18. In submissions before the Court on 16 December, it was suggested that the assessment of the author of the PSR was based upon only the briefest of interviews with the appellant and was inadequate. We do not agree with that characterisation of the report.
19. In any event, it is clear that the learned judge, having had the dual advantage of seeing the appellant over the course of a lengthy trial and of hearing the evidence concerning the events of 9/10 June, attached no great weight to the conclusions of the author of the PSR. He made it very clear that his views, that a sentence of detention for life was justified and that the appellant was a dangerous offender, were based upon his own assessment of the appellant's offence and the appellant's character. We consider he was entitled to reach these conclusions on the facts.
20. Paragraph 20 of the written Grounds of Appeal implies that the learned judge in identifying a notional determinate term of detention had used or had been influenced by schedule 21 to the Criminal Justice Act 2003. The learned judge had said in his sentencing remarks that the notional determinate term for an adult would have been 24 years, and so for a youth of the appellant's age would be 18 years. Whilst these figures bear resemblance to figures in schedule 21, such is inevitable in this type of situation where a notional determinate term is bound to be very long. The figures though in schedule 21 are the figures representing the earliest time for consideration for release on licence so that they in fact represent half the value of the notional determinate term. This criticism, if it is intended as a criticism, is unfounded.

R v Huggins, Clarke and Gordon [2016] EWCA Crim 1715

21. Huggins, Clarke and Gordon, in which judgment was given in this Court as recently as 15 November 2016 provides guidance in sentencing in certain types of manslaughter cases. As it happens the facts of Huggins bear more than passing similarity to the appellant's case, but we refer to Huggins only to emphasise the principles involved in cases such as this.
22. As was observed in Huggins, 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 Criminal Justice 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."

23. 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.
24. 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 Huggins, paras. 38 - 40)
25. In some cases of involuntary manslaughter the level of culpability will not be great because serious harm will neither have been intended nor been foreseen nor been foreseeable – but this appellant's offence was offending where culpability was at or approaching the highest level for involuntary manslaughter. Violence was intended and planned. A "fearsome" weapon was acquired and carried to the scene. The victim was attacked, not with intent to kill or intent to cause really serious harm, but nevertheless with intent to harm and in circumstances in which unintended consequences – indeed fatal consequences – were always a very real and entirely foreseeable possibility. The appellant made cunning and determined efforts to conceal his involvement and to escape its consequences.

Sentence

26. HHJ Hone's sentencing remarks very much presage Huggins in the approach he adopted. Recognising that Lewinson fell to be sentenced for manslaughter and therefore on the basis that some harm rather than really serious harm had been intended, the learned judge observed that:

"...in terms of culpability and harm this case must be placed at the very top of the range of manslaughter cases".

In terms of culpability the learned judge placed the appellant's case "very close to murder" and he gave cogent and clear reasons why that was so. We agree both with HHJ Hone QC's approach and with his conclusion in placing the appellant's case very close to murder in terms of culpability and harm.

27. The learned judge carefully analysed the nature of the offence, its planning and the steps taken by the appellant to evade detection. He considered Lewinson's previous offending and he gave appropriate weight to the conclusions reached in the PSR – they matched the conclusions he had reached having seen and heard the appellant during his trial. The learned judge took fully in to account the Sentencing Council's guidelines on youth offenders and considered the appellant's age, his maturity and his capacity to change.
28. HHJ Hone QC concluded that the seriousness of this offence of manslaughter justified a sentence of detention for life. He went on to consider in detail and with care the question of dangerousness and the applicability of s.226 Criminal Justice Act 2003. Finding, as he did, that the appellant was a dangerous offender and given his conclusion that by reason of the seriousness of the offence a sentence of detention for life was fully justified, HHJ Hone was required by the terms of s.226 Criminal Justice Act 2003 to pass a sentence of detention for life.
29. As we have already indicated, HHJ Hone QC's conclusion that detention for life was required in this case was, in our view, correct.
30. In fixing the notional determinate term at 18 years the learned judge had taken as his starting point a term of 24 years that he considered would have been appropriate for this manslaughter in the case of an adult. Given his conclusion that this case fell at the "very top" of the range for manslaughter and was "very close" to murder, the notional terms the learned judge was bound to consider had to be lengthy.
31. Before us, Mr Denison Q.C. for the Crown described the notional determinate sentence of 24 years as "exceptionally severe". Contrary to what is suggested in paragraph 20 of the written grounds of appeal, it does not seem to us that in taking a starting point of 24 years for an adult offender the learned judge was in any way influenced by the provisions of schedule 21, Criminal Justice Act 2003 as they would apply for the offence of murder. Rather, the learned judge assessed the gravity of the offence in terms of culpability and harm and he reached the conclusion he did.
32. Having concluded that the appropriate notional determinate term for an adult was 24 years, the learned judge reduced the term relevant to the appellant in accordance with the Sentencing Council's guidelines for youth offenders by a factor of 25%. Accordingly, we must consider both whether a starting a starting point of 24 years was manifestly excessive and, whether it was or was not, whether the reduction by 25% was appropriate or whether there ought to have been a greater deduction.
33. Mr Denison's acceptance of the "exceptionally severe" length of the notional term, is the starting point of our consideration. Whilst we acknowledge the difficulty there always is in making comparison with other cases, cases such as Attorney General's Reference No. 36 of 2015; R v Nicholles [2015] EWCA Crim 1174 and R v Odegbune and others [2013] EWCA Crim 711 have assisted us to some extent, as to length.
34. The learned judge's conclusion that the appropriate notional determinate sentence for an adult was 24 years was consistent with his assessment that the appellant's case fell "at the very top" of the range for manslaughter and was "very close" to murder. Clearly a severe sentence was required and, having considered the learned judge's reasoning as well as the submissions made to us, we do not conclude that 24 years was a manifestly excessive starting point.
35. Was the term appropriate for an adult sufficiently reduced so to reflect the age and maturity of this appellant as well as his capacity for change? In this regard the learned judge considered the factors the Sentencing Council's guidelines refer to with evident care. The learned judge rejected the notion that the appellant was immature and he assessed the appropriate reduction by reference to the correct criteria. However, the Sentencing Council guidelines indicate that:

"…where the offender is aged 15, 16 or 17, the court will need to consider the maturity of the offender as well as chronological age. Where there is no offence specific guideline, it may be appropriate, depending on maturity, to consider a starting point from half to three quarters of that which would have been identified for an adult offender".

Although the learned judge did not depart from the guideline, in reducing the notional determinate sentence to 18 years he allowed only the minimum deduction (25%) the guidelines recommend. We do not consider this reduction was sufficient. The appellant was only 16 at the time of the offence. It was not suggested he was particularly mature or sophisticated for his age and in our judgement the appropriate reduction should have been to two thirds of the determinate term for an adult.

36. A one third reduction of the 24 year term leads to a notional determinate sentence for this appellant of 16 years, rather than 18 years. In turn, that means that the period to be specified as the minimum term under s.82A Powers of Criminal Courts (Sentencing) Act 2000 should have been 8 years (less 333 days spent on remand in custody) not 9 years.
37. To that extent, this appeal is allowed.
38. For the avoidance of doubt the sentence is detention for life under s.226 Criminal Justice Act 2003. The specified minimum term (as from 13 May 2016) is 7 years 32 days (that is 8 years minus 333 days).