Mohamed Qasim [2019] EWCA Crim 1715

In Mohamed Qasim [2019] EWCA Crim 1715 the Court of Appeal (Lord Justice Haddon‑Cave, Mrs Justice Cockerill and His Honour Judge Bate) dismissed an appeal against an extended sentence imposed for a sustained hammer attack upon a vulnerable victim.

Mr Qasim had pleaded guilty on 6 February 2018 to causing grievous bodily harm with intent contrary to section 18 of the Offences against the Person Act 1861 and to possession of an offensive weapon contrary to section 1(1) of the Prevention of Crime Act 1953. On 12 October 2018 His Honour Judge Grainger sentenced him to an extended sentence of fifteen years, comprising a custodial term of ten and a half years and an extended licence period of four and a half years on count one, and a concurrent term of fifteen months’ imprisonment on count two. Two co‑accused, Haroon Shouqat and Amjid Hussain, had been convicted following trial of causing grievous bodily harm with intent and each received nine years’ imprisonment.

The facts concerned a violent attack on 6 January 2018 upon Mr Lewis Davis, a homeless drug user. The appellant and his co‑defendants lured Mr Davis to a block of nearly empty flats at Ashbourne House in Slough. Shouqat drove Mr Davis to the location with Hussain in the front passenger seat and the victim in the rear. Somebody was alerted to their arrival, probably by a mobile call made by Hussain. When the car arrived the appellant approached with a hammer and launched a sustained attack upon Mr Davis in the rear of the car. An independent witness estimated a minimum of ten swipes with the hammer. Mr Davis himself thought there were up to twenty blows. Many blows fell on the victim’s head, shoulders, arms and body. Shouqat knelt in the driver’s seat facing backwards and held Mr Davis down so that he could not escape. Hussain came round from the passenger’s seat and did the same from outside the car, standing behind the appellant and leaning in to hold the victim down. When Mr Davis managed to wriggle out, Hussain and the appellant punched and kicked him to the ground. The victim got up and ran off, pursued by the appellant and Hussain, before managing to summon help. Mr Davis suffered fractures to his jaw, the side of his face and his left cheek arch, as well as a black eye. He spent eight days in hospital and underwent surgery for the insertion of metal plates in his jaw.

The appellant was aged twenty‑four at sentence and had two previous convictions: a twelve‑month conditional discharge for possession of Class B drugs in August 2015 and in the same month a six‑month suspended sentence for affray. A pre‑sentence report assessed him as posing a high likelihood of reconviction and a high risk of serious harm to known adults and the public.

The sentencing judge, who had also been the trial judge for the two co‑defendants, stated that the background to the offence was drug taking and dealing. He ignored the appellant’s basis of plea, noting that insofar as it sought to exonerate Shouqat the jury had clearly disagreed with it, and that insofar as it alleged an attack on a friend of the appellant the previous evening it would make the appellant’s position worse by indicating that this was some sort of revenge attack. The judge found that this was a joint attack and that it fell within the category of greater harm because it was a sustained attack on a vulnerable man who was effectively trapped in the back of the car. The injuries, while not the worst that could be imagined, were still very serious. The judge found greater culpability because it was a coordinated and pre‑planned attack involving repeated use of a weapon. Whilst the leading role in the violence was that of the appellant, the other two defendants had taken Mr Davis to the location in the full knowledge that an attack was to take place and played a full part in keeping him trapped and pinned down. Whether or not they knew that a hammer was to be used while driving to the location, they certainly knew that one was being used as they themselves became physically involved in the attack. The judge categorised the offence as category one, for which the starting point for a person of good character after trial was twelve years’ custody with a range of nine to sixteen years. The judge gave the appellant credit of twenty‑five per cent for his guilty plea at the plea and trial preparation hearing. In light of the pre‑sentence report and the particularly nasty nature of the attack, the judge concluded that the appellant posed a serious risk of harm to the public and assessed him as dangerous. The judge’s starting point for the custodial part of the sentence was fourteen years, reduced by twenty‑five per cent to ten and a half years. The judge noted that Shouqat was more heavily convicted than the appellant but mostly for dishonesty rather than violence, and that he had played a vital role in getting Mr Davis to the location and then in assisting the appellant by keeping him pinned down. The appropriate sentence for each of the two co‑defendants was nine years’ imprisonment.

Mr McGrath, appearing for the appellant, submitted first that the fifteen‑year extended sentence was manifestly excessive. He contended that the starting point of fourteen years was too high and that there was a serious disparity between the sentence passed upon the appellant and those passed on the two co‑defendants. The disparity was one of five years because the starting point for the appellant was fourteen years before discount, whereas the sentences imposed on the co‑defendants after trial were nine years each. Secondly, Mr McGrath submitted that the judge had been wrong to make a finding of dangerousness.

The Court of Appeal rejected both grounds. The court held that if the sentence had stood alone, a starting point of fourteen years’ custody for the section 18 offence would not on any view be manifestly excessive, given that this was an extremely nasty and violent attack. It was sheer luck that the blows with the hammer did not cause serious life‑threatening or life‑ending injuries. This was a sustained attack with a weapon on a vulnerable victim who was being held down. It involved planning and a group operation. The court accepted the sentencing judge’s clear finding that the appellant played a leading role in this joint enterprise, as it was he who took the hammer to the scene and rained down blows upon Mr Davis. The court considered carefully whether the sentence, relative to those passed upon the two co‑defendants, could be said to have been unfairly high. The sentencing judge had the benefit of being the trial judge for the two co‑defendants and had heard the evidence not just of those defendants but of the eye‑witnesses. On that basis the judge was able to conclude that the appellant had the leading role and that it was unclear whether or not the co‑defendants were aware until the appellant produced the hammer and started to attack Mr Davis that he would be armed in this manner. The court was not persuaded that the disparity was so great as to make it unfair, not least because it was reluctant to disagree with the judge who had the benefit of seeing the witnesses and hearing the evidence at trial.

On the issue of dangerousness, the court noted the clear observations by the author of the pre‑sentence report, Mr David Gibson of the Probation Service. Mr Gibson stated that the appellant currently posed a high risk of serious harm to known adults and the public. There were identifiable indicators of such risk. The appellant had acknowledged that he was dealing drugs and knew the victim from previous drug dealings, and stated that the day before the offence the victim had robbed his associate of drugs and money, and that he had told the victim he would “find him” and “get him”, indicating that he was seeking revenge. There was a degree of planning regarding the offence and it was of concern that the appellant showed little insight, regret, remorse or empathy towards the victim. Given the lifestyle the appellant was living, involving organised pre‑criminal associates, another offence of this nature could happen again if the appellant was confronted, challenged or involved further in the drug trade, and this could happen at any time. Mr Gibson expressed concern about the level of violence used, which was extreme, and that this was associated with a lack of remorse or victim empathy. In the light of those observations and the nature of this extremely violent attack, the sentencing judge was fully entitled to conclude that the appellant was indeed dangerous and fulfilled the requirements of the dangerousness provisions. An extended sentence of fifteen years, comprising a custodial term of ten and a half years and an extended licence period of four and a half years, was open to the judge and could not be said to be manifestly excessive.

In short, the Court of Appeal found that the starting point was not manifestly excessive, the disparity between the appellant’s sentence and those of his co‑defendants was not so great as to be unfair given his leading role in the violence, and the finding of dangerousness was fully justified on the evidence before the sentencing judge.