Khan [2019] EWCA Crim 825
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R v Khan [2019] EWCA Crim 825 was an appeal against sentence heard by the Court of Appeal Criminal Division consisting of Lady Justice Thirlwall DBE, Mr Justice Kerr and His Honour Judge Hilliard QC sitting as a Judge of the CACD. Mr Khan appealed with leave against an extended sentence imposed for unlawful wounding and possession of a bladed article.
On 5 September 2018 in the Crown Court at Reading before Her Honour Judge Morris, Mr Khan was convicted after trial of unlawful wounding contrary to section 20 of the Offences against the Person Act 1861, having been acquitted of wounding with intent under section 18. He was also convicted of having a bladed article, a flick knife, in a public place contrary to section 139(1) of the Criminal Justice Act 1988. On 4 October 2018 Judge Morris sentenced him to an extended sentence of five years comprising a custodial term of four and a half years and an extension period of six months on the section 20 count, with 18 months’ imprisonment concurrent on the bladed article count. Forfeiture of the knife and a restraining order were also made.
The complainant, Mr Niedzinski, was a resident of a block of flats where in the weeks before the incident he and other residents had been intimidated by a gang of youths drinking and taking drugs. On 20 March 2018 Mr Khan was present at the flats. The complainant heard a disturbance and went onto his balcony, seeing Mr Khan whom he thought he recognised as one of the gang, although this was disputed. After a verbal altercation the complainant went down to remonstrate with Mr Khan to make him leave. A physical altercation ensued during which the complainant was stabbed four times by Mr Khan. The most serious wound was to his abdomen which caused his lung to collapse. He also received two stab wounds under his left armpit, one to his face and suffered a fractured rib. The judge found that Mr Khan had brought the knife to the scene and deliberately stabbed the complainant. His defence of self-defence had been rejected by the jury.
Mr Niedzinski made a statement describing his injuries and expressing great fear for himself and his family for fear of reprisals. He wished to move out with his family, which they subsequently did. He retained scars, remained fearful and lost considerable income as a result of the injuries.
The appellant was aged 27 and had previous convictions for violence including possession of knives and other offensive weapons. Four of his ten previous convictions related to possession of knives or other offensive weapons and eight related to violence including robbery and affray. At the time of these offences Mr Khan was on licence in respect of consecutive sentences imposed in 2013 and subject to a community order for possession of an offensive weapon.
A pre-sentence report recorded that Mr Khan accepted that he had caused injury to the complainant and that stabbing him four times was excessive even though he believed himself to be under attack. The probation officer assessed him as posing a medium risk of re-offending but a high risk of serious harm to the public unless he addressed his tendency to respond violently to conflict. The risk was of verbal, psychological and physical harm caused by harassing behaviour towards partners, physical assault of members of the public and the emotional harm these behaviours caused.
Prosecuting counsel had submitted in a written note that this was a very serious Category 1 case of unlawful wounding and that the numerous aggravating features meant it was appropriate to sentence above the top of the category range of two and a half to four years’ imprisonment with a starting point of three years. The judge sentenced on the basis that Mr Khan deliberately stabbed the complainant intending to cause some injury. She found the offending caused greater harm owing to the repeated assault and showed high culpability owing to use of a weapon, making this a Category 1 offence. Other factors increased seriousness: the offending took place in a residential block of flats at night in the presence of others including the complainant’s family; it was aggravated by Mr Khan’s antecedent history; it occurred while he was on licence for a robbery offence and subject to a community order; and it was aggravated by the impact upon the complainant who with his family had had to move home. The judge considered the bladed article offence also to be a Category 1 offence.
Having convicted Mr Khan of a specified offence, the judge considered dangerousness and concluded that a determinate sentence would not fully address the risk he posed. The starting point for such a sentence would have been four and a half years’ imprisonment. She imposed the extended sentence comprising a custodial period of four and a half years and an extended licence period of six months on count 2, with 18 months’ imprisonment concurrent on count 3.
Mr Maclean Watt advanced grounds of appeal in writing and orally. These were in summary that the sentence was manifestly excessive because the judge failed to give proper weight to factual findings and mitigation, made unreasonable factual findings contrary to the verdict of the jury, incorrectly applied and interpreted the sentencing guidelines and erred in failing to consider specific facts relating to Mr Khan’s previous offending as that issue related to dangerousness.
Before addressing those grounds, Mr Justice Kerr giving the judgment of the court identified that the sentence was unlawful because the extension period on count 2 was six months whereas section 226A(7A) of the Criminal Justice Act 2003 required the extension period to be at least one year. The unlawful element therefore needed to be corrected.
The court rejected all the grounds of appeal. The jury’s verdicts meant they were sure Mr Khan had brought the knife to the scene and used it on the victim either intending to cause him some injury or being reckless as to whether injury would be caused. Self-defence was rejected. The judge had presided at the trial and had seen and heard the witnesses. It was a matter for her to decide the facts for sentencing provided she did so consistently with the jury’s verdicts.
The court rejected the suggestion in the written grounds that the judge unfairly treated Mr Khan as having been one of the youths who had previously hung around the area drinking and taking drugs. She did not expressly make such a finding in sentencing. The court also rejected the submission that she side-stepped the jury’s verdict. She was entitled to find that Mr Khan had deliberately inflicted the wounds that amounted to grievous bodily harm, albeit he did not according to the jury’s verdict intend grievous bodily harm to result.
The court rejected the argument that the judge was bound to find that because the victim first approached Mr Khan the wounding offence was heavily mitigated or should be treated as a case of excessive self-defence. The court also rejected the argument that the legal directions to the jury did not justify the judge’s finding that the wounds were deliberately perpetrated. The judge was right to observe that the victim was unarmed while Mr Khan had a knife. The jury’s acceptance that Mr Khan had no intent to cause really serious harm did not mean the judge had to find that the wounds were inflicted otherwise than deliberately. Where a person strikes at another person with a knife in the course of a scuffle it is unlikely that the first will not intend to cause injury to the second.
Subject to the unlawful element, the court rejected the suggestion that the judge did not properly apply the sentencing guidelines or sufficiently analyse Mr Khan’s previous offending. The conclusion that he was a dangerous offender within the statutory provisions was obviously justified both by his record of committing offences of violence and carrying offensive weapons and by the conclusion of the probation officer that he posed a high risk of serious harm to the public.
In correcting the unlawful element, the court had to ensure it did not deal with Mr Khan more severely than the court below under section 11(3) of the Criminal Appeal Act 1968. Where a sentence is unlawful for failing to comply with mandatory sentencing provisions, the court should consider the implications for automatic release, parole eligibility and licence of any substituted sentence, as directed in R v Thompson [2018] EWCA Crim 639 at paragraph 23. If the court were to impose an extended sentence the custodial part should be at least four years under section 226A(3) of the 2003 Act as Mr Khan did not have a previous conviction for a schedule 15B offence.
The court concluded that the sentence for unlawful wounding should be four years with an extension period of one year, making a total of five years. The custodial element was at the top of the range for a Category 1 offence which the court regarded as appropriate. The extension period of one year was the minimum that could be imposed where the offender was found to be dangerous. The court was satisfied for the purposes of section 11(3) that this sentence did not deal with Mr Khan more severely than the court below. While the period spent on licence might be longer, he would be eligible for release from custody two thirds into the custodial part, several months earlier than under the judge’s sentence.
In short, the court quashed the unlawful extended sentence of four and a half years with a six month extension period and substituted an extended sentence of four years with a one year extension period, leaving the concurrent 18 months’ imprisonment on count 3 undisturbed.