Osei [2018] EWCA Crim 2728
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**Osei [2018] EWCA Crim 2728** concerned an appeal against an 11-year determinate sentence for kidnapping imposed by the Crown Court at Wood Green following conviction, which the Court of Appeal allowed in part.
Mr Osei had been convicted on 6 April 2018 of kidnapping contrary to common law and sentenced on 18 June 2018 to 11 years’ imprisonment. Both he and his co-defendant, Mr Christopher Cook, had been acquitted on the judge’s direction of an offence of causing grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861.
The offence occurred on 4 October 2017 when the complainant attended Marquis Road near Wood Green to buy drugs from a dealer. At approximately 00.45 the applicant and Mr Cook approached the complainant’s car, took his keys, and when the complainant attempted to flee they dragged him back and bundled him into the rear of the vehicle. The applicant drove whilst Mr Cook occupied the passenger seat. The assault and removal lasted two to three minutes. Police were called by witnesses who described seeing a man punched and kicked by two males and having his shirt and trousers removed. The applicant returned to the police cordon on multiple occasions that night, initially saying he wished to pass through to see his partner, later claiming he had been to an all-night shop, and was arrested on suspicion of kidnapping at 5.00 am. The complainant regained consciousness some 34 hours later in a house near the North Circular, suffering cuts, bruises and a fractured cheekbone. He gave evidence that he had been conscious for most of the car journey but could recall nothing thereafter. In his victim impact statement he described the applicant and Mr Cook as his friends.
Mr Osei, aged 38, had 34 convictions for 84 offences, overwhelmingly acquisitive crimes funding his drug addiction. His record included an affray in 2011 attracting 18 weeks’ custody, battery and criminal damage in 2014, and assaulting a police officer in 2015, but he had not previously served any substantial custodial term. A pre-sentence report assessed him as at high risk of reoffending and of causing serious harm, noting he met some dangerousness criteria, but the sentencing judge declined to impose an extended sentence and opted for a lengthy determinate term instead. The sentencing judge accepted that the applicant and Mr Cook were responsible for the violence in Marquis Road and that the applicant drove the complainant away to hand him over elsewhere. She found he acted on instructions from another but was responsible for his own violence against the complainant, who was described as in a drugged state, unwell and unable to fight back. The judge accepted that the applicant could not have been responsible for the complainant’s most serious injury, given his prompt return to the cordon, that the complainant had attended voluntarily, and that there had been little planning, at least on the applicant’s part. She took a starting point of 12 years and reduced it to 11 years to reflect efforts the applicant had made in custody to address his addiction.
There is no Sentencing Council definitive guideline for kidnapping. The sentencing judge was referred to Attorney General’s Reference Nos 102 and 103 of 2014 (R v Perkins) [2014] EWCA Crim 2922, in which the victim had been bound, blindfolded, suffocated with a plastic bag, burned with an iron, repeatedly submerged in water and held over a balcony; that conduct was described as cruel, deliberate torture warranting a 10-year custodial term with a three-year extended licence. Mr Mostyn on behalf of the applicant also cited Attorney General’s Reference Nos 39, 40, 41 and 42 of 2014 [2014] EWCA Crim 1557, where the victim was struck with a hammer, tied with cable, laid on a body bag and subjected to further hammer blows breaking his teeth, resulting in sentences of 14 years comprising 10 years’ custody with a four-year extension and an eight-year determinate term for the main offenders. In Attorney General’s Reference No 92 of 2014 [2014] EWCA Crim 2713 the court had identified relevant factors for assessing gravity in kidnap cases including length and circumstances of detention, location and restraint, extent of violence, involvement of weapons, demands or threats made, effect on the victim, planning, number of offenders, use of torture or humiliation, whether arising from or in furtherance of previous criminality, and any particular vulnerability of the victim. Counsel also relied on R v Greene [2018] EWCA Crim 480.
The renewed application, which had been refused by the single judge, contended that the starting point of 12 years was too high. The Court of Appeal accepted that the sentencing judge had heard the trial but concluded on close analysis that a starting point of 12 years was excessive. The court found that an appropriate starting point was eight years. The offence was extremely distressing, the complainant suffered anxiety and flashbacks and felt compelled to leave the area. The kidnap took place in the furtherance of criminal activity relating to drug use. The applicant did not appear to have been involved in any planning. Violence was used during the kidnap but the most serious assaults did not involve the applicant. He acted with Mr Cook and the complainant was vulnerable because he had been using drugs. The court emphasised that every kidnap is fact sensitive and creates difficult sentencing decisions. The court did not consider that any further reduction should be made beyond the eight-year starting point, notwithstanding the applicant’s efforts in custody to turn his life around, which the sentencing judge had already taken into account in reducing her starting point to 11 years.
The Court of Appeal quashed the sentence of 11 years and imposed a sentence of eight years’ imprisonment. In short, the appeal was allowed to the extent that the sentence was reduced from 11 years to eight years on the basis that a starting point of 12 years had been manifestly excessive and that eight years was appropriate in the circumstances of this kidnapping.