Emdadul Islam [2019] EWCA Crim 923
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In Emdadul Islam [2019] EWCA Crim 923 the Court of Appeal (Lord Justice Davis, Mr Justice Jeremy Baker and Her Honour Judge Rees) allowed the appellant’s appeal against a sentence imposed for manslaughter and reduced the custodial term from fourteen years to twelve years.
Mr Islam had been convicted of manslaughter and pleaded guilty to possession of an offensive weapon following a trial at the Central Criminal Court on 1 May 2018. He was sentenced to fourteen years’ imprisonment for manslaughter and two years’ imprisonment concurrent for the offensive weapon. His co-accused, Yasin Patel, who pleaded guilty to wounding with intent and having an offensive weapon, received a total of twelve years’ imprisonment.
The offences arose from two linked incidents of violence on Plashet Road in Forest Gate on 12 October 2017. Following an altercation at a barber shop, Yasin Patel and his step-father, Titu Miah, pursued a group of youths which included sixteen-year-old Moinul Islam. When they caught up with Moinul Islam, Yasin Patel repeatedly stabbed him whilst Titu Miah grabbed him by the hair as he lay on the ground. A few minutes later and in retaliation for that incident, the appellant, who had been at a second barber shop having his hair cut and was known to but unrelated to Moinul Islam, retrieved a baseball bat from the boot of his motor vehicle, approached Yasin Patel and Titu Miah from behind and struck Titu Miah on the back of the head. The force fractured Titu Miah’s skull. Although Titu Miah was able to get up and lay on the bonnet of his Mercedes motorcar, the appellant then struck the rear window of the vehicle with sufficient force to break the baseball bat. Titu Miah died in hospital five days later on 17 October. The appellant handed himself in to the police and provided a prepared statement in which he claimed to have struck Titu Miah once to the shoulder area because he was afraid Titu Miah was going to assault someone, denying any intent to kill or cause really serious bodily harm.
At trial the jury acquitted the appellant of murder but convicted him of manslaughter. The verdict indicated that whilst the jury rejected the defence that he had acted in lawful defence of another, they accepted that he did not intend to kill or cause really serious bodily harm. The appellant was twenty-four years old and had a number of previous convictions for drug-related offences but only one previous conviction for violence, a common assault in 2012. A pathologist, Dr Chapman, stated that severe force would have been required to inflict the five by six centimetre comminuted fracture which had led to death. A victim impact statement from the deceased’s wife described the profound distress his death had caused her and their three young children.
The judge determined that the appellant did not meet the criteria for dangerousness and that a determinate sentence was appropriate. He found harm was at the highest level and that the appellant’s culpability was such that the harm caused could have been readily foreseen, given that he had deliberately retrieved a baseball bat in order to use it as a weapon. The judge identified aggravating features including that the offence took place in public and the severe impact on the deceased’s family. The judge took into account the appellant’s relative youth, his lack of serious previous violence, and a letter expressing remorse. The judge stated that the circumstances had many of the hallmarks of gang-related activity, that there was some degree of premeditation, and that the appellant’s actions were carried out in retaliation for what had happened to Moinul Islam.
Mr Brian O’Neill QC, appearing for the appellant, submitted that the sentence was manifestly excessive. He acknowledged that in Appleby [2009] EWCA Crim 2693 the court had underlined that sentences in manslaughter cases must reflect the fact that a life has been lost, and that the previous sentencing range had increased so that sentences of around fourteen to fifteen years had more recently been imposed where a knife is taken to the scene. He submitted that where a less potentially dangerous weapon such as a baseball bat was taken to the scene, the appropriate sentence should be below that range. He relied on Branagan [2012] EWCA Crim 1695, where a post-trial figure of seven and a half years’ custody for a single blow to the head with a wooden object was described as on the severe side. He contended that the appellant only acted because of what the deceased had done to Moinul Islam, that the blow may not have been aimed at the head but across the shoulders, and that there was medical evidence that appropriate hospital treatment might have prevented death. He criticised the judge’s reference to gang-related activity, submitting there was no evidence of it at trial, and argued that the judge’s reference to the appellant’s anger when he smashed the rear window detracted from the jury’s finding that there was no intention to cause really serious bodily harm and instead exhibited restraint. He also contended that the judge erred in giving excessive weight to factors such as the presence of children and trauma caused to the deceased’s family.
The court noted that because sentence was imposed prior to 1 November 2018, the Sentencing Council’s definitive guideline for manslaughter did not apply. Following the approach in Huggins [2017] 1 Cr.App.R (S) 21, the court concentrated on the twin factors of the appellant’s culpability and the harm caused or risked. The court found it not particularly useful to consider sentences in other cases, which are invariably fact-specific, and distinguished Branagan on its facts. The court acknowledged that the appellant was relatively young and had only one previous conviction for relatively low-level violence some years earlier. However, it emphasised that the appellant kept a baseball bat in his motor vehicle available to be used, that he was not acting in any defensive capacity but rather in retaliation, and that the blow was struck with severe force resulting in an extensive comminuted fracture from which the deceased died. The court held that whatever the appellant’s intention, his unlawful act carried a high risk of death which ought to have been obvious to him. It was a significant aggravating factor that he had specifically armed himself with a baseball bat prior to the offence, intending to use it as a weapon.
The court rejected the submission that a baseball bat is less dangerous than a knife, holding that the weight to be given to this factor depends on the circumstances of the individual case. In this case the appellant had the baseball bat ready for immediate use and used it with severe force. The court considered that the judge’s reference to gang-related activity appeared to concern the group of individuals travelling from one barber shop to the other rather than the appellant’s conduct specifically, and did not wrongfully inflate the sentencing exercise. Given the severity and extent of the injury, the court did not consider that significant mitigation arose from evidence that appropriate medical treatment might have prevented death. The court did not find unjustifiable criticism in the judge’s observation that what the appellant did to the motor vehicle was indicative of his level of anger, rejecting the submission that this exhibited restraint. The court also found no undue weight was given to the presence of children or the harm caused to the deceased’s family.
The court acknowledged that it had not found the matter easy and recognised that the trial judge would have been well able to assess the degree of culpability. However, it noted that this was not a case in which a knife had been taken to the scene and used to inflict the fatal injury. Taking into account that this was a single blow by a young man with no previous convictions for serious violence, the court was just persuaded that on the particular facts the sentence of fourteen years was too long to reflect the extent of the appellant’s culpability. The court quashed the sentence and substituted a sentence of twelve years’ imprisonment. In short, the appeal succeeded, the sentence for manslaughter being reduced from fourteen to twelve years on the basis that whilst the use of a baseball bat with severe force carried a high risk of death, this was a single blow by a relatively young man with no history of serious violence and the original sentence was excessive.