Hayibor [2019] EWCA Crim 834

R v Canice Joseph Hayibor [2019] EWCA Crim 834 concerned an appeal against a sentence of eighteen months’ imprisonment imposed at the Crown Court at Sheffield by His Honour Judge Thomas QC for possessing an article with a blade in a public place, contrary to section 139(1) and (6) of the Criminal Justice Act 1988. The appellant, aged twenty-four, had pleaded guilty in the magistrates’ court and received full one-third credit for his guilty plea.

The offence occurred on 23 November 2018 at around 11.30 pm outside 43 Regent Street, Balby in Doncaster. CCTV captured a blue Jaguar arriving, from which at least three males emerged carrying what appeared to be long-barrelled shotguns. They took aim at the terraced house and opened fire multiple times before driving off at speed. The appellant then emerged from the property brandishing a machete and was seen running up and down the street with others who were also in possession of weapons. In interview, the appellant claimed he took the weapon to protect himself and to ward off the attackers, and also to bring a pregnant woman from the street back into the house. He initially described the weapon as a small kitchen knife but later admitted, when shown the CCTV, that it was in fact a machete.

One of those outside responding to the gunfire was Callum Hutton-Spigner, who subsequently pleaded guilty to possession of a shotgun with intent to cause fear of violence contrary to section 16A of the Firearms Act 1968. The appellant had moved to Doncaster from London in an attempt to leave behind a lifestyle centred around an organised crime culture of drug use and violence. Despite being only twenty-three years of age, he had an extensive criminal record. In 2013 he was sentenced to two years’ detention for supplying Class A drugs, namely heroin and cocaine. In 2015 he received four months’ imprisonment for burglary of a dwelling with intent to steal. In February 2017 he was sentenced to two years’ imprisonment for attempted burglary of a dwelling with intent to steal, and in March 2017 he received two months’ imprisonment concurrent for common assault. In August 2018 the appellant himself had been a victim of a shooting and still had pellets in his abdomen.

The pre-sentence report noted that the appellant had moved to Doncaster with his pregnant girlfriend, who was due to give birth in February 2019 and had subsequently done so. He told the probation officer that he had gone to the house in Regent Street to visit a friend and smoke cannabis. On hearing the gunshots, he and others initially hid inside to avoid injury, but he later went out with the weapon to try to frighten the people shooting at the property. He acknowledged that, in view of his previous lifestyle in London, he should have known better than to take the weapon and go outside. The report noted that the current matter appeared to be a reflection of the lifestyle he wished to leave behind and seemed to be continuing despite his assertions to the contrary.

The sentencing judge noted that the appellant had again been caught up in the discharge of firearms, as he had been in London. The reaction of those in the house was to come outside, by which time the car had driven off. It appeared that a weapon carried by the co-accused had been discharged. The appellant’s contribution was to come out of the house with the machete. It was not merely a small kitchen knife but could clearly be seen on the CCTV to be a machete and a substantial bladed weapon. Applying the relevant Sentencing Council guideline, the judge found higher culpability and greater harm. There was higher culpability because this was a bladed article and moreover it could be described as a highly dangerous weapon, within the meaning of the guideline. The judge said that the appellant was there in the middle of what seemed to be some sort of gang warfare, armed with a machete. There was greater harm because the appellant was in possession of the weapon in circumstances where there was a risk of serious disorder and there was a risk of serious alarm and distress. The judge concluded that it was a serious case of its kind in every sense. Under the relevant guidelines, the starting point for a category 1A offence was eighteen months’ custody, with a range up to thirty months. The judge’s assessment was that this offence fell much more towards the top end of the range than the bottom. He took a starting point of twenty-seven months, which he discounted by one-third for plea, resulting in the sentence of eighteen months’ imprisonment.

On appeal, Ms Csengeri, who had not appeared below, submitted that although there was higher culpability because this was a bladed article, the sentence should have reflected the exceptional circumstances in which the appellant left the property in response to gunshot fire. She submitted that possession of the weapon fell only just short of reasonable excuse, which would mean category D culpability, or at least there were features of category D culpability which the judge should have borne in mind. Ms Csengeri took issue with the judge’s finding that serious disorder could have resulted from the appellant’s possession of the machete. He went out into the street only after the gunshots had been fired at the property. She pointed out that the witness statements from civilians living nearby merely provided evidence of distress generally from the overall seriousness of the incident, and in particular the gunfire, without mention in their statements of the appellant brandishing a machete. In relation to the guideline, she submitted that the judge gave no explanation for taking a figure which was in fact nine months above the starting point of eighteen months. She submitted that the judge failed to have regard to the appellant’s personal mitigation, including the lack of any previous convictions for the use or possession of weapons. She pointed to his caring responsibilities for an aunt with whom he and his partner were living in Doncaster by the time of sentence. The aunt had poor mobility and mental health issues, and the appellant was her registered carer. His partner was shortly due to give birth. Ms Csengeri also submitted that the level of sentence which the judge imposed meant that he was obliged to consider whether the sentence should have been suspended and that he failed to give proper consideration to that possibility.

The court emphasised that the context of the offence was important. The judge was entitled, to an extent at least, to read between the lines as a matter of common sense and to sentence on the basis that the carrying of the machete out into the street was more than merely a defensive response to the armed attack on the house by three men in a car. As the author of the pre-sentence report put it, the offence appeared to be centred around a culture of drug use and the use of violence and weapons within local communities. The co-accused came out into the street and discharged a weapon of some kind, the judge found, now acknowledged by his plea to be a shotgun.

The court held that this was plainly a category 1A offence under the guideline. As the judge rightly identified, there was not simply the single basic level A culpability factor of possessing a bladed article, but also the fact that it was a highly dangerous weapon, that is to say a weapon whose dangerous nature must be substantially above and beyond the basic definition of an offensive weapon. As to harm, the judge was entitled to conclude that the harm which was caused or was risked fell within category 1. The offence was committed in circumstances where there was a risk of serious disorder, and although the eyewitnesses did not speak of alarm or distress at the sight of the machete as opposed to the use of firearms, the appellant went out into the street with his co-accused when both of them were armed in their different ways. At the very least that was conduct to which the appellant contributed which risked serious alarm or distress.

The court noted that the guideline acknowledges that in a case of particular gravity, reflected by multiple features of culpability or harm, it may be that an increase from the starting point is merited before further adjustment for aggravating or mitigating features. The court found that the judge was entitled to treat the circumstances of the offence and the multiple features of culpability and harm which he identified as making it a case of particular gravity. Furthermore, it was an aggravating factor that the appellant had a bad criminal record for one so young, including a recent conviction for common assault. The offence here was committed not long after the end of the licence period of his previous sentence. There were no real factors under the guideline reducing seriousness, simply the general personal mitigation of his domestic circumstances. Taking all these factors into account, the court considered that the judge was fully entitled to move up from the starting point of eighteen months before reducing the sentence for the guilty plea.

However, the court concluded that the judge went somewhat too far in making the uplift as great as nine months. The court considered that twenty-one months would have been appropriate as the starting point after trial rather than twenty-seven months. Applying the reduction of one-third credit for plea, that would result in a sentence of fourteen months rather than eighteen months’ imprisonment. The court therefore allowed the appeal, quashed the sentence of eighteen months and substituted a sentence of fourteen months’ imprisonment. The court added for completeness that the judge was right to conclude that the offence was much too serious for anything but an immediate custodial sentence.

In short, the appeal was allowed and the sentence reduced from eighteen months to fourteen months’ imprisonment, the court finding that the uplift from the guideline starting point was excessive but that immediate custody was plainly justified.