Ntim [2019] EWCA Crim 311

In R v Ntim [2019] EWCA Crim 311 the Court of Appeal (Lord Justice Green, Mr Justice Holgate and His Honour Judge Paul Thomas QC) dismissed an appeal against an extended sentence of 15 years imposed for wounding with intent.

The appellant had pleaded guilty on the first day of trial in the Crown Court at Blackfriars before His Honour Judge Clarke QC on 3 September 2018 and was sentenced on 28 September 2018 to 15 years’ detention comprising a custodial term of 10 years and an extended licence period of five years. A count of attempted murder was ordered to lie on the file.

On 23 March 2018 at around 11.30 am near a major junction and supermarket in Kennington the appellant, aged 16 and approximately six feet tall, engaged in an altercation with the complainant Mr Buchanan, a stranger aged 31 and about five feet four inches tall. Workmen witnessed the appellant acting as the aggressor, shouting abuse including “Fucking come round the corner. Come on let’s go. You get me and make your move bro. Do something”, feigning punches and a headbutt and spitting at Mr Buchanan. The latter simply asked to be left alone and said he was going to the nearby Tesco. The appellant then suddenly stabbed Mr Buchanan in the shoulder area with a six-inch knife held in his right hand and ran off down Kennington Lane carrying the weapon. The knife penetrated the right ventricle of the victim’s heart. Mr Buchanan fell to the pavement with blood pouring from his chest. Emergency services attended within minutes and found him in cardiac arrest. He underwent open heart surgery at King’s College Hospital. He suffered catastrophic life-changing injuries including an extreme hypoxic brain injury causing severe and global cognitive impairment, loss of capacity to make decisions about his own care, difficulty understanding instructions and speaking intelligibly, severe mobility problems requiring him to spend most of his time in bed or a wheelchair, and double incontinence. He required one-to-one daily care in a specialist rehabilitative unit and had no real insight into his condition, which was unlikely to improve in the short to medium term. He might never live independently again. Saliva matching the appellant’s DNA profile was found on the victim’s jacket. When police attended the appellant’s home to arrest him a large folding knife was thrown from a window and another folding knife was found in his bedroom, though no forensic evidence linked these to Mr Buchanan. The appellant answered no comment in interview.

The appellant was born on 29 March 2001 and was therefore just short of his 17th birthday at the time of the offence. He had a conviction for threatening behaviour for which he had received a four-month referral order on 16 January 2018, only two months before the stabbing. That earlier offence on 22 October 2017 involved the appellant and another pursuing a male victim on a bicycle, the victim falling and escaping, and the appellant later producing a 30-centimetre serrated knife before the victim’s father intervened. In the pre-sentence report the appellant claimed Mr Buchanan had tried to intimidate and provoke him and that once he produced the knife the victim would not back down. The report’s author noted that no eyewitness evidence supported this account. Although the appellant expressed regret and said his anger had become “out of control”, he could not fully address the impacts on the victim. Reports from the Young Offender Institution stated that the appellant sought verbal and physical conflict and had initiated most aggressive incidents against inmates from rival areas. The appellant was assessed as a high risk of reoffending, with risk factors including cannabis use, heightened anxiety about becoming a victim himself, peer groups and violence-related behaviour whilst on remand. He was also assessed as high risk in relation to his own safety partly through involvement with negative peer groups. The author of the pre-sentence report stated the court might conclude the appellant met the threshold for dangerousness.

The sentencing judge noted the guilty plea entered on the first day of trial, that the offence had been committed whilst the appellant was still subject to the referral order, and took account of character references and a letter from the appellant. The judge noted that in his defence statement the appellant had relied on self-defence and accident. The judge considered four factors in concluding that even if the appellant had not planned specifically to attack Mr Buchanan, it was the appellant’s ambition to commit this type of offence. Those factors were the previous conviction, the contents of the appellant’s mobile phone showing preoccupation with and association with a gang called the Harlem Spartans, drill music lyrics on his phone containing a chilling description of the events of this offence, and the fact that the appellant had clearly been spoiling for a fight by goading Mr Buchanan in the hope that a fight would begin in which he would then use his knife. The judge referred to the prevalence of knife violence and the concern it caused to the courts, police and public. He agreed with the pre-sentence report’s finding of dangerousness and, having carefully considered the matter, particularly the appellant’s youth, he was satisfied that the appellant posed a significant risk of causing serious harm by committing further similar offences in the future. It was agreed that this was a category 1 offence. The judge stated that if the appellant had been an adult the sentence would have been 16 years’ imprisonment. He said the guilty plea attracted a credit of 15 per cent and the sentence would be tempered to reflect the appellant’s youth, stating that the appropriate sentence involved a reduction of over one third. He imposed an extended sentence under section 226B of the Criminal Justice Act 2003.

The appellant was granted leave to appeal on one ground, namely whether the judge failed to make a sufficient reduction for the appellant’s youth and his guilty plea. Mr Carey-Hughes QC on behalf of the appellant renewed the application for leave on a further ground rejected by the single judge as unarguable, namely that 16 years’ imprisonment after trial for an adult would have been manifestly excessive. He submitted that the judge had significantly uplifted the sentence for prevalence contrary to principles laid down in R v Bondzie [2016] 1 WLR 3004 and that a sentence of 16 years after trial at the top of the range for category 1 should be reserved for cases involving the most serious examples of both greater harm and higher culpability. He argued there was no evidence to show that the level of harm caused by this type of offending in the locality was significantly higher than elsewhere or the harm inherent in the definitive guideline, that the circumstances were not exceptional and that it was not just and proportionate to increase the sentence on this ground.

The court considered first whether an adult sentence of 16 years was manifestly excessive, assuming no uplift for local prevalence could be justified. The court held that the harm caused could not in reality have been more serious for this type of offence. As regards culpability the appellant used a dangerous weapon and his ambition was to commit this type of offence, taking the sentence into the upper part of the sentencing range for category 1. Aggravating features included the wholly unprovoked attack on a member of the public in a busy public location, the carrying of a knife in such a place, attempts to goad the victim, fleeing the scene to avoid detection, the attempt to throw away a knife, the use of a knife in the recent public order offence, commission of this offence while under supervision, and the appellant’s association with a gang. The court held that even putting aside any argument about local prevalence, an adult sentence for this offence of 16 years could not be described as excessive let alone manifestly excessive, the situation being similar to R v Byrne [2018] EWCA Crim 2729. Furthermore, after carefully reviewing the judge’s sentencing remarks, the court was not persuaded that it was arguable that the judge made any significant and improper uplift for prevalence in the sense used in Bondzie. The judge had done no more than reflect the general concern about knife crime throughout the country, his remarks being similar in nature to those of the trial judge in R v Ezeh [2017] EWCA Crim 1766. The court dismissed the renewed application for leave on this ground. The court observed that it was probably better for sentencing judges to avoid the term “prevalence” save in cases where a Bondzie uplift for exceptional local conditions was justified and the judge explained clearly why on the evidence before the court.

Turning to the ground for which leave had been granted, the court did not accept that the question was whether a reduction of 37.5 per cent from 16 years to 10 years’ custody was adequate to deal with both a reduction for youth and the guilty plea, holding that these were separate matters in the sentencing exercise. Youth might qualify as one aspect of mitigating circumstances, here the only real point advanced. A reduction for a guilty plea followed as the final and separate adjustment. The court considered that the judge’s willingness to allow 15 per cent credit was generous and saw no reason why any credit greater than the 10 per cent normally allowed for a guilty plea on the first day of trial was justified. Although the judge had suggested at the PTPH that the indictment be amended to add an alternative count of wounding under section 18 of the Offences against the Person Act 1861, there was no merit in the suggestion that the first opportunity to indicate a plea under section 18 did not occur until the prosecution made a formal application to amend the indictment on the first day of trial. The alternative offence under section 18 was obvious, but the appellant maintained his reliance upon self-defence and/or accident until late in the day. Especially once the court had raised the matter, the appellant’s solicitors could have written to the prosecution to indicate he would admit the lesser charge, following R v Caley [2013] 2 Cr App R 305 at paragraph 20 and paragraph F3 of the definitive guideline on guilty pleas. On this basis the court inferred that the reduction for age amounted to about 30 per cent.

The court held that whatever view was taken about the size of the credit for guilty plea, the appellant’s argument rested on paragraph 6.46 of the definitive guideline for sentencing children and young people, which stated that when considering the relevant adult guideline the court may feel it appropriate to apply a sentence broadly within the region of half to two-thirds of the adult sentence for those aged 15 to 17 and allow a greater reduction for those under 15, but that this was only a rough guide which must not be applied mechanistically and that in most cases the emotional and developmental age and maturity of the child or young person was of at least equal importance as their chronological age. It was not suggested that the emotional and developmental age or maturity of the appellant was less than his chronological age. In any event paragraph 6.46 provided only a rough guide which must not be applied mechanistically. Notably, the extent to which the age of a young person reduced his culpability should be seen in the context of the offence of which he stood convicted. In this case the appellant carried a knife in public despite his recent conviction, but not for the purpose of defending himself against others carrying knives. Instead, on the judge’s finding, he deliberately sought to provoke an innocent member of the public in broad daylight in a busy thoroughfare to act in such a way that he would feel able to strike a vicious blow in the victim’s chest. The court held that even if the appropriate credit for the guilty plea was 15 per cent, no criticism could be made of the judge’s reduction for the appellant’s age for this particular offending.

In short, the court found no basis upon which it would be entitled to interfere with the judge’s assessment of the allowance to be made for age or to conclude that the sentence imposed was manifestly excessive, and accordingly dismissed the appeal.

R v Bondzie [2016] 1 WLR 3004
Byrne [2018] EWCA Crim 2729
Ezeh [2017] EWCA Crim 1766
R v Caley [2013] 2 Cr App R 305