DM & SC [2019] EWCA Crim 1354
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DM and SC v R [2019] EWCA Crim 1354 concerned appeals by two youths against the minimum terms imposed following their convictions for murder, heard by the Court of Appeal (Lord Justice Holroyde, Mr Justice Phillips and Her Honour Judge Molyneux sitting as a judge of the Criminal Division).
Each appellant had been convicted of the murder of Saif Abdul-Magid and sentenced to detention at Her Majesty’s pleasure. His Honour Judge Moss QC at the Central Criminal Court specified minimum terms of 14 years and six months for DM and 14 years for SC. Both appellants were aged only 14 at the time of the murder and were 16 at the date of appeal. Section 45 of the Youth Justice and Criminal Evidence Act 1999 anonymity orders were made prohibiting publication of anything likely to identify them whilst under 18.
The victim, who had recently turned 18, was stabbed to death on 6 October 2017. The evening before, the appellants and a friend encountered the deceased in Neasden. SC and the deceased began to argue and then fight. The deceased armed himself with a bottle, DM became involved, and the deceased was pushed to the ground and kicked repeatedly. DM was convicted of an offence arising from that incident (ultimately treated as affray); SC was acquitted. The following afternoon the appellants and their friend returned to the scene, as did the deceased and three of his friends. Both the appellants and the deceased were armed with knives. After a short exchange of words they moved to a parking area at the front of a housing estate which was not covered by CCTV. A violent confrontation of short duration took place. The deceased was stabbed seven times, at least once whilst on the ground. One wound, a stab to the neck penetrating 11 centimetres, quickly proved fatal. SC sustained a wound inflicted by the deceased but it was not serious. After leaving the scene DM disposed of his knife, which was never recovered. SC surrendered to police on 9 October; DM was arrested the following day.
At the time of the murder DM was 14 years and five months old. He had one previous conviction for theft in October 2016 and had received a juvenile caution for possessing an offensive weapon on school premises in November 2016. SC was 14 years and three months old and had no previous convictions, cautions or reprimands. Pre-sentence reports were regarded as unnecessary.
In his sentencing remarks the judge indicated he was satisfied the appellants had been armed, had expected to encounter the deceased and had expected violence. He thought it likely DM had inflicted the fatal stab wound to the neck but could not be sure. He was not sure either appellant had intended to kill, but the jury had been sure both intended at least really serious injury and had rejected self-defence or defence of another. The judge identified as aggravating features the fact that the appellants brought knives to the scene, the attack was deliberate and probably pre-planned, it took place in full view of the public including children, and it was sustained and included stabbing the deceased on the ground. In DM’s case the affray conviction was also taken into account in assessing the minimum term. Mitigating factors were the appellants’ ages of only 14 and the absence of intention to kill. In SC’s case the judge also took into account previous good character. In DM’s case the judge indicated his previous history did not affect the sentencing decision. No separate penalty was imposed for DM’s affray.
On behalf of DM, Mr Mendelle QC submitted that the judge had not given sufficient credit to his young age and gave disproportionate weight to the affray conviction in setting the minimum term six months longer than SC’s. On behalf of SC, Mr Godfrey QC submitted that the judge failed sufficiently to reflect the appellant’s young age and did not give sufficient weight to his previous good character. Mr Corsellis QC for the respondent submitted that the sentences were neither wrong in principle nor manifestly excessive.
The court reviewed pre-appeal reports which revealed a mixed picture of conduct and attitude since conviction in each case. In DM’s case the reports showed he was bright and able, capable of applying himself to work and study and could be a positive role model. His parents separated when he was nine and the absence of a father figure or positive male role model was thought likely to have impacted his emotional development. It was encouraging that he remained positive about his future and was working towards qualifications. In SC’s case a similarly mixed picture emerged. He had in the past been assessed as having significant learning difficulties and as functioning academically below age level, but Mr Godfrey did not submit that SC presently suffered significant learning difficulties. There were encouraging signs he was capable of working well and of being motivated to improve.
Lord Justice Holroyde, delivering the judgment of the court, emphasised that the appeal related to the length of the minimum term, the period the court considered appropriate taking into account the seriousness of the offence or offences. The appellants must serve the whole specified period before even being considered for release on licence by the Parole Board, and if released would remain subject to licence restrictions for life and could be recalled at any time. The court was concerned with the length of minimum term by way of punishment; consideration of safe release was for the Parole Board.
Schedule 21 to the Criminal Justice Act 2003 prescribed different starting points for the minimum term in different situations. Paragraph 7 stated that if an offender was under 18 when committing murder, the appropriate starting point was 12 years. For an adult the starting point was generally 15 years, but paragraph 5A prescribed 25 years for an adult who murders with a knife or other weapon taken to the scene intending to commit an offence or to have it available as a weapon. Having chosen the appropriate starting point the sentencer was required to take into account aggravating or mitigating factors, some identified in non-exhaustive lists in paragraphs 10 and 11. Paragraphs 11(a) and (g) identified an intention to cause serious bodily harm rather than to kill, and the age of the offender, as mitigating factors. Consideration of aggravating and mitigating factors could result in a minimum term of any length.
The court noted that the paragraph 7 starting point of 12 years applied to all offenders under 18, but the court must nonetheless consider age and maturity. The starting point was not to be applied mechanistically. However, given it was lower than the adult starting point and much lower when murder was committed with a knife taken to the scene, it must be borne in mind that the youth of a young offender had already been taken into account significantly by the terms of schedule 21 (citing Attorney-General’s Reference No 25 of 2012 (Ochaine Williams) [2013] 1 Cr App R(S) 124 at paragraph 30 and R v Dania [2019] EWCA Crim 796 at paragraph 55). The extent to which any further reduction could and should be made on grounds of particularly young age depended on all the circumstances and could not be determined by applying an arithmetical discount.
The Sentencing Council’s Definitive Guideline on Overarching Principles for Sentencing Children and Young People was noted. Because the sentence for murder was fixed by law, the nature of sentence was not affected by considerations of the offender’s welfare or the principal aim of reducing offending by children and young persons. It nonetheless remained important when considering the appropriate minimum term to consider the developmental and emotional age of the offender and, in accordance with paragraph 4.10 of the guideline, whether the young offender had the necessary maturity to appreciate fully the consequences of their conduct, the extent to which they had been acting on an impulsive basis and whether their conduct had been affected by inexperience, emotional volatility or negative influences.
The court noted it was not suggested that either appellant was unusually or particularly immature for his age. Although a report indicated SC had in the past been assessed as suffering from learning difficulties, it did not appear and Mr Godfrey did not submit that they impacted significantly on his culpability. The court therefore approached the case on the basis that the appellants were subject to the levels of immaturity, emotional volatility and impulsivity to be expected of their peers growing up in the circumstances of these appellants. The principal issue was whether the judge made sufficient allowance for those factors in setting the minimum terms.
Addressing first the case of SC, who was of previous good character and fell to be sentenced for murder only, the court accepted that his youth and consequent immaturity required a reduction below the starting point which would have applied even if he had been up to three years older. The court recognised the element of peer pressure and desire not to lose face. His previous good character was also an important factor for which a further reduction had to be made. But to be set against that was the seriousness of the crime with the aggravating features the judge rightly identified. In particular, the sentence had to reflect that he had gone out on the day of the murder armed with a knife and expecting to confront the deceased. Young though he was, and notwithstanding any learning difficulties he may have suffered, he surely understood the seriousness of that action and the dangers of carrying a knife into an expected conflict.
The court rejected a submission that mitigation was to be found in the suggestion that knives were carried for self-defence against a young man who was expected to be armed. On the jury’s verdict the appellants deliberately used knives, not acting in self-defence. The judge fairly accepted there was no intention to kill and the court recognised there may have been a failure on the part of a very young offender fully to think through the consequences of his actions. Nevertheless, SC deliberately chose to arm himself and deliberately used a knife with intent to cause really serious injury. Moreover, the fact that the knife attack took place in public, in the view of children as well as adults, was a serious aggravating feature.
Balancing these factors the court was satisfied that the factors requiring an increase above the starting point significantly outweighed those militating in favour of reduction below it. The judge was faced with a difficult sentencing decision which had to balance the very young age of the offender against the seriousness of the offence. The court concluded after careful thought that the judge imposed a minimum term within the range properly open to him and which could not be said to be manifestly excessive.
Similar considerations applied to DM. He did not have the advantage of previous good character and could not expect any reduction on that ground, though his modest criminal record did not aggravate his position. In his case the sentence also had to reflect the commission of the offence on the previous night. The court rejected the submission that it was appropriate to view the increase in the minimum term solely from the perspective of the sentence which would have been appropriate for a 14-year-old convicted of affray alone. The affray was both a significant offence in itself, involving kicking on the ground, and an aggravating feature of the murder of the same victim carried out less than 24 hours later.
The court concluded that the distinction the judge drew between DM and his co-accused, resulting in a minimum term six months longer, was justified in those circumstances. In his case also, and again after anxious reflection, the court concluded the minimum term was within the range properly open to the judge and could not be said to be manifestly excessive.
In short, both appeals against the length of the minimum terms imposed for murder were dismissed, the Court of Appeal finding that the trial judge had properly balanced the very young ages of the appellants against the serious aggravating features of a knife attack in public on a victim they had confronted the day before.