Hashi [2019] EWCA Crim 185
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Ahmed Hashi v R [2019] EWCA Crim 185 was an appeal against sentence heard by the Court of Appeal (Lord Justice Flaux, Mr Justice Holgate and Mr Justice Murray) which was dismissed.
The appellant, aged 18 at sentence but 17 years and seven months at the time of the offence, had been convicted of manslaughter after a trial at Wood Green Crown Court before His Honour Judge Dodd QC and a jury on 24 May 2018, having been acquitted of murder. On 29 June 2018 he was sentenced to nine years’ detention in a Young Offender Institution. He appealed with the leave of the single judge.
The facts concerned an incident at the Bethel Café on Seven Sisters Road, London, on 28 November 2017 at around 10.00 pm. The victim, Mohamed Hersi, aged 40, was playing pool when an argument developed between him and another man, Saleban Hussain, about whose turn it was to play. In irritation, Mr Hersi told Mr Hussain to play pool with the kids, referring to the appellant and another young man, Mahamoud Adbi Ali Farah. Mr Hersi left the café but returned because he had forgotten his scarf. The argument continued and witnesses heard someone say “come outside”. Mr Hersi appeared to beckon toward Mr Hussain, the appellant and Mr Farah, though the judge later noted this did not appear to be a violent or offensive gesture. Mr Hersi and Mr Hussain attempted to go outside to fight but were prevented. At about 10.10 pm Mr Hersi left again but returned once more. On this occasion the appellant and Mr Farah went towards him. The appellant picked up a chair from inside the café and, holding it with its legs pointing towards Mr Hersi, threw or pushed it at him twice in quick succession. One of the metal chair legs penetrated Mr Hersi’s left eyeball by some three inches. Mr Hersi fell to the floor. The appellant then stamped on Mr Hersi’s genital area and throat before running from the café with Mr Farah. Paramedics attended and Mr Hersi was taken to the Royal London Hospital, where he died at about 2.18 pm on 29 November 2017. On 1 December 2017 the appellant handed himself in to Wood Green police station and stated that he had been in the café on 28 November, had an argument with the male, hit him in the eye with a chair, and had come to hand himself in after hearing he had died. In interview he accepted hitting Mr Hersi with a chair but claimed he had acted in self-defence and did not know he had hit him in the eye or intend to cause serious injury. The jury rejected that defence by their verdict.
The appellant had one previous conviction for using threatening, abusive or insulting words or behaviour with intent to cause fear or provocation of violence on 22 December 2016. He had lost his temper in a dispute with a shopkeeper and threatened him with a plastic pallet. He received a conditional discharge on 10 January 2018. A pre-sentence report assessed him statistically as posing a low risk of reoffending and a medium risk of violent reoffending, though the writer expressed a professional opinion that he posed a medium risk of reoffending likely to rise in confrontational situations. He was assessed as posing a high risk of serious harm to the public and medium risk to other prisoners, but the writer concluded he did not meet the dangerousness criteria and that the risks could be managed by a determinate sentence. The judge agreed, not without some hesitation, that dangerousness was not established and imposed a conventional determinate sentence.
In sentencing, the judge referred to the profound loss suffered by Mr Hersi’s wife and four young children and said no sentence could equate to the value of the life lost. The court had viewed CCTV footage from inside the café. The judge found that immediately before the incident Mr Hersi was at the door apparently beckoning in a manner that did not appear violent or offensive. It was unclear why the appellant and his friend got up from their seats and walked to the door. As he did so, the appellant picked up a chair and used it to attack Mr Hersi, a man who had displayed no aggression towards him and was a total stranger. He held the chair as he attacked Mr Hersi then stamped on his throat and groin, further acts which the judge considered indicative of his feelings. No witness could shed clear light on why the appellant had suddenly attacked a man much older than himself who posed no threat. The judge referred to the argument and Mr Hersi’s possible reference to “the kids” or saying “come outside”, but described these matters as complete and utter trivia. The judge felt that in some way the appellant felt slighted by Mr Hersi and wanted to teach him a lesson. The chair had four metal legs, one missing its rubber foot, and it was that leg which pierced Mr Hersi’s left eye and caused catastrophic damage resulting in his death. The pathologist’s view was that severe force would have been required to cause the damage found at post-mortem. The injuries to the throat indicated the use of moderate force.
The judge noted that the appellant subsequently had the decency, encouraged by his family, to give himself up once he learned the man had died. He admitted much of what was alleged but maintained self-defence, which the judge found had no foundation or basis whatsoever. The judge referred to R v Hobbs and DM [2018] EWCA Crim 1003 and the Sentencing Council guideline setting out overarching principles for sentencing those under 18. The appellant was 18 at sentence but had been 17 at the time of the offence. The judge read the pre-sentence report and a letter from the appellant expressing remorse and hopes for the future. He said he had not seen any indication of remorse during the trial but accepted the appellant now expressed sorrow and regret and understood in some way the enormity of the pain he had caused. The report described the appellant’s progress on remand in mixed terms. He had engaged with educational opportunities but had been involved in incidents showing a lack of respect to staff and some violence towards other inmates, which the writer attributed to immaturity rather than anything more significant.
The judge accepted there had been little premeditation but said the offence remained extremely serious and was a dreadful and shocking incident far removed from any childish prank. The appellant had chosen to arm himself with a chair to attack a wholly innocent man who had done him absolutely no wrong. The violence was sudden, wholly without excuse and brutal. In assessing harm and culpability, the judge said harm was present by virtue of the loss of life and was of the utmost seriousness. As to culpability, the judge accepted the appellant did not intend to kill Mr Hersi but he plainly intended to cause him some harm, albeit falling short of really serious harm, otherwise why had he picked up the chair and used it with significant force as a weapon to attack his victim. Culpability was therefore high. The judge noted the appellant’s previous conviction, which indicated a disturbing attitude towards others when challenged. He was conscious of the appellant’s age and that his level of maturity was below that of an adult, which was a relevant factor reducing his culpability to a degree. The judge thought that was the only mitigating factor he could identify along with a measure of remorse. Had the appellant not been as young as he was and had he been a fully mature individual, the sentence would have been 12 years’ imprisonment. Because of the appellant’s age, the sentence was reduced to nine years’ detention in a Young Offender Institution.
On appeal, Mr Benjamin Aina QC on behalf of the appellant advanced as the principal ground that the judge had not given adequate weight to the overarching principles set out in the guideline for children and young people. He referred to the passages referred to in Hobbs and DM, culminating in paragraph 6.46, upon which he placed particular emphasis. That paragraph states that if considering the adult guideline the court may feel it appropriate to apply a sentence broadly within the region of half to two-thirds of the appropriate adult sentence for those aged 15 to 17 and allow a greater reduction for those under 15, but that this is only a rough guide and must not be applied mechanistically, with the individual factors relating to the offence and the child or young person being of the greatest importance and potentially presenting good reason to impose a sentence outside this range. Mr Aina QC submitted the judge was required to consider age, maturity and progress even where the offender was 18 when sentenced, since full maturity and all the attributes of adulthood are not magically conferred on young people on their 18th birthday. The court agreed with this submission, citing R v Clarke [2018] EWCA Crim 185 at paragraph 5, where the Lord Chief Justice stated that experience of life reflected in scientific research is that young people continue to mature, albeit at different rates, for some time beyond their 18th birthdays, and that the youth and maturity of an offender will be factors that inform any sentencing decision even if the offender has passed their 18th birthday.
Mr Aina QC submitted that in relation to paragraph 6.46 and the reference to a reduction of one-half to two-thirds of the adult sentence, the appellant, having been 17 when he committed the offence, was entitled to this reduction. He contended that in allowing a discount of only 25 per cent the judge had failed to take account of the immaturity of the appellant and the impact this had on his decision-making and the lack of insight into the consequences of his offending. He characterised the behaviour as immature, submitting the appellant had picked up a chair and thrown it in a childish way at a perceived aggressor without any thought of the risk that serious injury might occur. He was particularly critical in oral submissions of the judge’s failure to give any explanation as to why he was departing from the guidelines, as required by section 125 of the Coroners and Justice Act 2009. In an addendum to his advice and in oral submissions, Mr Aina QC also referred to the sentencing guideline on manslaughter, which took effect on 1 November 2018 and was not applicable when the appellant was sentenced. He submitted that the specific reference in that guideline to the need to refer to the guideline on sentencing children and young people when sentencing those under 18 for manslaughter, thereby taking those under 18 outside the manslaughter guideline, illustrated the importance of distinguishing sentencing of adults from sentencing of young offenders, since the overall approach, principles and objectives are different.
Lord Justice Flaux, giving the judgment of the court, said that attractively though these submissions were presented, the court could not accept them. As Mr Oliver Glasgow QC pointed out in the respondent’s notice, the guideline at paragraph 6.46 made clear that the reference to a reduction of one-half to two-thirds from the adult sentence for 15- to 17-year-old offenders was only a rough guide and must not be applied mechanistically. The sentencing judge, having conducted the trial, was uniquely well placed to assess the extent to which the appellant’s age and immaturity should be reflected by a reduction from the adult sentence. Mr Aina QC’s characterisation of the offence as the appellant picking up a chair and throwing it in a childish way at a perceived aggressor without any thought of the risk that serious injury might occur downplayed the seriousness of the offending and was contrary to the judge’s findings based on the evidence. The judge specifically rejected the defence submission that this was some sort of childish prank that had gone wrong, as in Hobbs and DM. He also rejected any suggestion that Mr Hersi had behaved aggressively towards the appellant or that the appellant was responding to a perceived threat. Likewise, he rejected any suggestion that the appellant acted without any thought for the consequences. He found that the appellant plainly intended to cause Mr Hersi some harm, albeit falling short of really serious harm, otherwise why had he picked up the chair and used it with some significant force as a weapon to attack his victim.
The court noted that Mr Glasgow QC in his respondent’s notice appeared to think the appellant was seeking to challenge the judge’s starting point of 12 years’ imprisonment for an adult offender. The court did not understand Mr Aina QC to be doing so and he certainly did not suggest anything of the kind in oral submissions. In any event, whether there was such a challenge or not, the court considered that on the basis of the judge’s assessment of the evidence, which could not be faulted, a sentence of 12 years’ imprisonment for an adult committing this offence could not in any sense be described as excessive. If anything, given the high culpability of the appellant, a slightly higher sentence of 13 or even 14 years’ imprisonment if he had been an adult would have been justified. The suggestion in Mr Aina’s written submissions that the appellant was entitled to a discount of one-half to two-thirds from that adult sentence was misconceived. As the guideline made clear, the individual factors relating to the offence and the young offender might present a good reason for imposing a sentence outside the range. Here the judge was best placed to make an assessment of those factors.
Mr Aina QC had submitted, on the basis of R v Taylor [2012] EWCA Crim 630, that the judge should have explained why he had departed from the guideline and why a lesser discount had been allowed than under the guideline, and that his failure to do so made the sentence wrong in principle. The court rejected that submission. The guideline internally recognised that it was only a rough guide and that ultimately it was a matter for the sentencing judge as to what, if any, discount was to be given to a young offender in any particular case. It was clear that in the present case the judge did consider the guideline very carefully and there was nothing in the submission that he gave it insufficient weight. The judge concluded that the nature of this offending and the high culpability of the appellant despite his youth only justified a reduction of 25 per cent from the adult sentence. In the court’s judgment, this approach could not be seriously criticised and the sentence passed of nine years’ detention could not be described as manifestly excessive.
In short, the appeal against sentence was dismissed, the Court of Appeal holding that the sentencing judge was entitled to depart from the guideline range of half to two-thirds reduction for a young offender in light of the high culpability and serious nature of the offending, and that a 25 per cent reduction from the 12-year adult starting point was not manifestly excessive.