Khan, R. v

On 7^th November 2005 in the Central Criminal Court before H.H.J. Hone, this 33 year old appellant was convicted of murder. He had earlier pleaded guilty to wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861 (count 2).

On 8^th November 2005 he was sentenced as follows;

The 901 days already spent on remand in custody was to count towards sentence.

An order was made under section 52(1) of the Firearms Act 1968 for the forfeiture/disposal of the handgun.

He appeals against sentence by leave of the single judge on the count of murder, the application in relation to the wounding offence being referred to the Full Court.

Background – The appellant was married to Shaukat Bibi Khan, the deceased. They were married in 1995. They had three children and they lived in Bradford (3 – 5). In March 2003 the deceased left Bradford with her daughter and stayed with her sister in London. In April she also took her two sons to London as well. She was unhappy with the way her in-laws had been treating her. While she was in London the appellant visited her on three or four occasions but when he was not there one of the deceased’s brothers would normally stay with her and the children.

Events of 19^th – 21^st July 2003 - On 19^th July the appellant worked a shift as a taxi driver in Bradford and his last fare of his shift was recorded at 1.30 a.m. on 20^th. At about 9.20 p.m. on 20^th the appellant telephoned the deceased and told her that he was about five or ten minutes away from her house in London. She was expecting him to visit that evening and as a result her brother Mohammed, who had been staying there, collected his belongings from the deceased’s house and left her to await the arrival of the appellant.

At 10.30pm a neighbour heard the raised voice of a woman coming from the direction of the deceased’s house. It sounded like an argument. At 2.30 – 3.15 am on 21st, two men who lived nearby heard the sound of a woman screaming as if terror or being attacked. It then went quiet.

By 6am the same morning, the appellant was in Bradford with his three children. He left them with his family. At 8.35 am the deceased’s brother in law went to the deceased’s house in order to collect the children. He knocked at the door and got no reply. Later that morning, the deceased’s sister sent her a couple of text messages but received no reply.

At about 11.20 a.m. on 21^st July Mohammed, the deceased’s brother, was in his shop in London when the appellant came in. He was clean shaven rather than sporting a beard he previously had. The appellant asked Mohammed of Sinaullah Khan’s whereabouts (Sinaullah was another of the deceased’s brothers). He was told he was probably at home and at that the appellant left the shop. Mohammed then telephoned Sinaullah and told him that the appellant was looking for him.

Around 1.00 p.m. the appellant borrowed a Peugeot car from a man called Naseer Qassim and as he was talking to Naseer he swore about the deceased saying “that bitch has stopped my tax credits.”

At about 6.00 p.m. Sinaullah Khan was doing some repairs to the bonnet of his car outside his house in Gower Road. He heard a loud bang and then suddenly felt a pain in his back. He had been shot by the appellant. He turned around and saw the appellant holding a handgun. The appellant then said in Pashtu “fuck your wife.” Sinaullah believed that the appellant was about to fire again and so managed to run to his house where he summoned an ambulance. However a neighbour took him to hospital. He was operated on and a metal pellet was removed from his abdominal wall. A gun was later recovered from the Peugeot car. It was a handgun designed to fire blanks, but it had been modified.

In an attempt to trace the appellant the police went to the deceased’s home at 7.00 p.m. They found the naked body of the deceased on the floor of the living room, under clothing and bedding from the sofa bed. She had ten stab wounds to the head and neck area, seven to the trunk, two to the right arm, and one to the left arm. There were also two blunt wounds. When the body was recovered, a kitchen knife was found under her head. The wounds were consistent with a frenzied attack. There was evidence of semen inside the victim, matching the appellant’s profile.

On 29^th August police at Heathrow airport arrested the appellant as he got off a flight from Qatar. He had left the country the same night that he shot Mr Khan. He made no comment in interview.

The appellant was of previous good character.

When sentencing, the learned judge noted that as this murder was committed on 21^st July 2003 the case had to be treated under that part of the practice statement dealing with offences committed after 31^st May 2002 and before 18^th December 2003. The appellant fell to be sentenced not only for the murder of his wife but also for the shooting of his brother in law. It was noted that during cross examination in the trial the appellant agreed that the two offences were closely linked because of provocation as the appellant suspected that the deceased and her brother were having an incestuous relationship. That suspicion was without any foundation in fact. The sentencing dilemma was caused by the fact that the appellant deserved additional punishment for the premeditated shooting of his brother in law but as murder carried a mandatory life sentence it was not appropriate to pass a consecutive sentence. However because of the appellant’s high culpability in both crimes, the only way to reflect the overall seriousness of the criminality was to adjust the minimum term. This was permissible as the starting point could be varied to take account of aggravating features. The main aggravating feature was the fact that the killing and the shooting were pre-planned. Under the present sentencing regime the starting point would have been increased to 20 years to reflect the premeditation and the criminality in the wounding. However the transitional provisions applied in this case and a term of 20 years was greater than would probably have been notified under the practice. The appellant had little mitigation even though he was a man of good character. It was noted that remorse was not a word within his vocabulary. He had deprived three children of their mother but some very modest credit was given for the plea to the wounding. The minimum term was fixed at 18 years with 14 years for wounding with intent – reduced from 15 to reflect the guilty plea on that count. The 901 days already spent in custody were to count towards sentence.

The grounds of appeal are that the sentence imposed was manifestly excessive and wrong in principle. It is submitted that the judge erred in finding that the murder was pre-planned, and further that it was wrong in principle for the judge to adjust the minimum period upwards to give some additional penalty for the wounding. The sentence of 14 years for wounding with intent was manifestly excessive as the judge failed to give sufficient credit for the plea of guilty.

We turn to the first ground – namely the length of the minimum term and whether this was imposed on an erroneous basis.

This was a case which fell to be dealt with under the transitional provisions. Murders committed after 31^st May 2002 but before 18^th December 2003, as this one was, are governed by the Practice Statement of 31^st May 2002. This laid down two starting points. A “normal” starting point of 12 years was appropriate for murders which would normally involve the killing of an adult arising from a quarrel or loss of temper between two people known to each other. The higher starting point of 15-16 years applied in cases of exceptionally high culpability and would include cases where the victim was in a particularly vulnerable position serious or multiple injuries were caused before the death and cases of multiple murders.

In the present case, the judge took the starting point of 12 years, although he indicated that he could have taken the higher figure, on the basis of multiple injuries caused before death. We are told by counsel for the appellant that the medical evidence did not address the issue of whether multiple injuries were caused before death. In any event, the judge did not proceed on that basis. The judge then increased the starting point by six years to reflect the aggravating features of the premeditation and the associated shooting of the brother.

Dealing with the question of premeditation, we have considered the submission that there was no evidence of premeditation in relation to the murder and that this was an offence committed following a marital dispute. The appellant relies on the following evidence: a) that it was common knowledge that the appellant was coming down from Bradford to see his wife that day; b) the presence of his children at the house; c) the evidence of neighbours of what appeared to be an argument; d) the frenzied nature of the attack e) the use of the kitchen knife f) the fact that although the appellant possessed a gun he did not bring it down to London with him to shoot his wife.

In our judgment, there is some merit in this point. Whilst we are loath to go behind the judge’s finding on this issue, as was the single judge, we find it is hard to say, on an objective assessment of the evidence, that premeditation has been proved to the criminal standard. We therefore give leave to appeal on this point. Having done so, there will be no uplift with regard to the question of premeditation.

We turn to the question of whether it was inappropriate for the judge to treat the wounding offence as an aggravating feature.

It may be the case that when sentencing, although operating under the Practice Statement and treating the wounding as an aggravating factor, the judge had in mind the present provisions under Schedule 21 of the Criminal Justice Act. This provides that when considering the seriousness of the offence for the purposes of the appropriate starting point, one or more associated offences may be taken into account.

It may be that the judge was merely applying the not unfamiliar practice where there are a number of associated offences, of sentencing on one count to reflect the overall criminality of the conduct. Whatever he had in mind, he had a very difficult sentencing exercise to conduct, as he acknowledged, and he was trying to properly reflect what he considered to be the overall criminality of the conduct, within the parameters of the options available to him.

Counsel for the appellant contends that the judge was not entitled to consider an associated offence as such an option is not spelled out in the Practice Statement. He accepts that as a general principle a court can pass a sentence which reflects the overall criminality of the conduct, but submits that the offences would have to arise out of the same incident.

However, Counsel has made a number of concessions, namely that under the present regime, the wounding count could be considered as an associated offence and that had Mr Khan been killed, it could be treated as a multiple killing for the purposes of a taking a higher starting point.

However, this concession is made only on the basis that both offences are found to have been premeditated. If the court finds that the murder of the wife was not premeditated, then he submits that the wounding cannot be treated as an associated offence, albeit he concedes that they are connected.

It should be pointed out, that neither the present regime nor the Practice Statement purport to be an exhaustive list of factors which can be taken into account when considering the starting point, aggravating or mitigating factors. In our view these two offences were very closely connected and had the appellant lived in London would have occurred much closer in time. The defence to murder was provocation. The appellant agreed in cross examination that the murder of his wife and the shooting of his brother in law were closely linked. The two offences had the same motive – namely the appellant’s belief that his wife was having an incestuous relationship with her brother. It may well be that this was what the argument heard by neighbours was all about.

If Mr Khan had been killed, then there could be no doubt that the higher starting point would have applied, the rationale being to reflect the overall seriousness/criminality of the conduct: in the language of the Practice Statement, the case would have been one of multiple murders. Fortunately Mr Khan was not killed. This, in our judgment, does not preclude the court from taking the view that the wounding, being so closely connected to the murder of his wife, by analogy should merit the higher starting point, in order to reflect the very high level of culpability. Such culpability could also be expressed by treating it as an aggravating feature, which would have the same effect, but we consider it more appropriate to apply a higher starting point.

We propose to quash the minimum term of 18 years and substitute a term of 15 years. The period of 901 days spent on remand will count towards the sentence.

We turn to the application for leave to appeal the sentence for the offence of wounding which was referred to the Full Court by the single judge. Although largely academic in the circumstances, we do give leave to appeal. Whilst we do not accept that the appellant was entitled to full credit for a plea to this offence, we take the view that a) the starting point was too high and b) a discount more generous than a year was appropriate. Bearing in mind that this was a sentencing exercise in relation to an offence of wounding with intent and not attempted murder, in our judgment a starting point of 12 years would have been appropriate, with a discount of two years for the plea of guilty. We therefore quash the sentence of 14 years and substitute a sentence of 10 years imprisonment to run concurrently to the life sentence. To that extent this appeal against sentence is allowed.