Adil Mahmood [2019] EWCA Crim 1267

R v Adil Mahmood [2019] EWCA Crim 1267 was an appeal to the Court of Appeal (Criminal Division) against sentence in which the appeal was dismissed. Mr Mahmood had pleaded guilty to manslaughter (on a count originally charging murder) and arson. He was sentenced by His Honour Judge Leonard at the Central Criminal Court to eight-and-a-half years’ imprisonment for manslaughter and 18 months’ concurrent for arson, with hospital and limitation directions under section 45A of the Mental Health Act 1983 (as amended).

In the early hours of 29 May 2017 the body of Mr Hassaman Ettakkal, aged 54, a Moroccan national, was found beside the burnt-out remains of a stolen BMW car near Green Lane in Ilford. Mr Ettakkal had been sleeping rough in the vehicle and made a living through begging and small-scale drug dealing. Two witnesses sleeping in a nearby car had been awakened by an argument between the deceased and Mr Mahmood over drugs, during which Mr Mahmood made paranoid accusations. Mr Ettakkal headbutted Mr Mahmood, who retaliated by punching him four times to the body. Mr Mahmood was much more powerfully built than Mr Ettakkal, who was slightly built, weighed only eight stones, and was in very poor health owing to his addictions. Mr Ettakkal fell to the ground and could not get up. Mr Mahmood realised he was dead, left the scene to buy petrol, returned to set fire to the BMW, and went to a woman’s home where he was described as being “off his nut”. The cause of death was haemorrhage and a ruptured spleen resulting from the impact to the chest; the deceased’s sclerosis of the liver, chronic lung disease, bronchopneumonia, poor nutritional status and increased fragility exacerbated the effect of the injury. Mr Mahmood was traced through CCTV and telephone evidence.

Psychiatric evidence from Dr Kavuma diagnosed paranoid schizophrenia and assessed the appellant as fit to plead. Dr Kavuma indicated that the illness was arguably of substantial bearing on the appellant’s capacity to form the specific offence intent but was equivocal as to the availability of a defence of diminished responsibility. A further report from Dr Wilkin accepted the diagnosis but concluded clearly that the condition did not contribute significantly to the appellant’s behaviour at the material time and that no psychiatric defence to murder was open. Dr Wilkin recorded that Mr Mahmood had been clear the altercation was not related to his mental illness but was an argument over a drug deal, that the victim had not been part of his delusional belief system, and that Mr Mahmood would have understood the nature and quality of his acts and known they were wrong. The defence of diminished responsibility was not maintained, and the plea of guilty to manslaughter was accepted on the basis of lack of intent to kill or to cause really serious injury.

Mr Mahmood, now aged 38, had a very bad antecedent history with numerous convictions including serious violence and a previous sentence of nine years’ imprisonment for very serious violence. He had spent relatively few lengthy periods of his adult life out of prison. The medical evidence indicated he had long suffered from psychotic symptoms but his condition could be managed when he took his medication. On this occasion he had not been taking his prescribed medication and had instead reverted to trying to obtain Class A drugs as a substitute.

At the sentencing hearing the judge referred to the psychiatric evidence and stated that the psychiatrists were not of the opinion, save to a limited extent on loss of control, that the appellant’s condition contributed significantly to his behaviour. The judge found that at the heart of the appellant’s problems over the years was failure to take his medication together with his taking of controlled drugs including cocaine. The judge agreed with the medical opinion that the appellant’s current and past offending resulted from his paranoid schizophrenia together with his failure to take prescribed medication and, as importantly, his reliance on drugs of abuse. Having considered the decision in R v Vowles [2015] EWCA Crim 45, the judge concluded that a hospital order with a custodial sentence was appropriate under section 45A. The judge took into account the plea of guilty to unlawful act manslaughter on the basis of lack of intent to do grievous bodily harm and to some extent loss of control, but found there was a high risk of causing really serious bodily harm and noted the appellant’s history of violent offending. After giving full allowance for the guilty plea at the earliest opportunity, the judge imposed the sentence of eight-and-a-half years’ imprisonment.

Leave to appeal against sentence had been granted on two grounds: that the section 45A disposal was inappropriate and that a hospital order under section 37 with or without a restriction order under section 41 should have been imposed instead, and that the custodial term was too long. On the morning of the appeal hearing, Mr Bromley-Martin QC for the appellant produced a supplemental argument prepared the previous evening raising concerns that the appellant had been released from hospital back to prison in August 2018, that the court might not be able to substitute a section 37 order, and that if a section 41 restriction order were imposed the appellant might be detained for longer than under the determinate sentence. Mr Bromley-Martin sought an adjournment to obtain up to date medical evidence and sought a guarantee that the court would not impose a section 41 restriction order. The court declined to grant an adjournment or to give any guarantee. Having taken instructions from his client, Mr Bromley-Martin confirmed he was instructed not to pursue the grounds challenging the section 45A order and the appeal would proceed only on the challenge to the custodial term. The court permitted those grounds to be withdrawn. Lord Justice Davis observed that it was a great pity the court’s attention had not been drawn to the potential difficulty at the previous hearing or in good time before the appeal hearing.

On the ground relating to the length of the custodial term, Mr Bromley-Martin submitted that the sentence, connoting a starting point of about 13 years, was far too long and that no more than four years’ imprisonment would have been appropriate. He sought to rely on the Definitive Guideline on manslaughter issued by the Sentencing Council, but the court noted that guideline came into effect for offenders sentenced on or after 1 November 2018 whereas this sentence was imposed on 16 January 2018 and consequently the guideline had no application. The court made clear that courts should not have regard to guidelines which prospectively come into effect and should ordinarily decline to do so if counsel seek to rely on them. Nevertheless the court looked at the guideline de bene esse to accommodate Mr Bromley-Martin’s wishes.

Mr Bromley-Martin submitted that the schizophrenia had played a significant part, that no weapon had been involved, there had been no kicking or stamping, only four punches to the body had been administered, and that it would be wrong to say death had been caused in the course of an unlawful act carrying a high risk of grievous bodily harm which was or ought to have been obvious to the offender. He submitted that if the new guideline could properly be relied on, the matter should have been placed in culpability category C.

Lord Justice Davis, giving the judgment of the court, rejected these arguments. Whilst the paranoid schizophrenia was an important matter to take into account, the judge had expressly found it was only one factor and also highly operative in causal terms was the appellant’s failure to take his prescribed medication which he knew he should have taken, having had all the warnings available from his antecedent experiences. Moreover, the offending occurred in the context of seeking to obtain illegal Class A drugs and the dispute arose at least to a considerable extent because of disagreement with his drug dealer. A further important matter was the very serious antecedent history including convictions for serious offences of violence. The judge had found, as he was entitled to find, that there was indeed a high risk of causing grievous bodily harm which must have been obvious to the appellant even in his then condition. Overall, the appellant retained a very significant degree of culpability for the offending. Given his antecedent history, the whole context in which the offending occurred, and bearing also in mind that the sentence had to reflect the further serious matter of the arson involving in effect trying to burn potential incriminating evidence, the court could see no fault in the sentence imposed by the judge. A starting point in the region of 13 years was entirely proper for the totality of the offending and was not even described as severe; it was certainly not excessive.

The court also observed, although it did not express a concluded view because full argument had not been heard, that it would have had the greatest difficulty acceding to the arguments in writing that the section 45A order made by the judge was wrong in light of the circumstances as outlined in the sentencing remarks and the proper application of the principles in Vowles and the supplementary observations in R v Edwards [2018] 2 Cr App R (S) 77. In short, a starting point of about 13 years for unlawful act manslaughter in the context of paranoid schizophrenia, failure to take prescribed medication, drug abuse, and a serious history of violent offending was entirely appropriate, and the appeal was dismissed.

Vowles and Others [2015] EWCA Crim 45, [2015] 1 WLR 5131, [2015] 2 Cr App R (S) 6
R v Edwards [2018] 2 Cr App R(S) 77