Yemoh & Ors v Regina

The full facts of this case are set out in our judgment [2009] EWCA Crim 930 dismissing all the conviction appeals and all the applications for leave to appeal except one. That one concerns TD and is an application for leave to appeal based on fresh evidence. We adjourned this application and listed it for a separate hearing. At the conclusion of oral argument, we announced that the application for leave to appeal was dismissed and we now give our reasons. Having done so we turn to the appeals against sentence, leave having been given either by the single judge or by the full court.

The applicant seeks to rely on what is said to be a record of mobile phone calls made in July and September 2008 in which BR confessed to the stabbing. We told Mr Spens QC for TD that we would assume for the purposes of the application that BR had confessed to being the stabber and that the stabbing had taken place outside 174 Hammersmith Grove. It was TD’s case supported by his evidence that he went some way up Hammersmith Road beyond Chez Kristof and then turned back and away (see paras. 73 and 74 of the main judgment). Mr Spens tells us that he reached about as far as 150 Hammersmith Grove. Mr Spens submits that the fresh evidence would:

“require the court to consider whether or not the jury could have been sure that [TD] had not withdrawn from any joint enterprise and was thus a party to the killing by [BR]”.

In our view, although the judge did direct the jury about withdrawal (see pages 14-15 of volume 1 of the summing-up), we have no doubt that, on the facts of this case, the jury would have been sure that TD had not withdrawn simply by turning away when he reached 150 Hammersmith Grove. As we said in the main judgment, in order to have convicted TD of murder the jury must, in our view, have reached the conclusion that a knife other than a Stanley knife caused the deceased’s death and that TD knew that the knifeman had a knife and he shared the knifeman's intention to kill or do really serious bodily harm, or realised that the knifeman might use the weapon with that intention and nevertheless took part. Merely turning back just before the fatal end of a long chase cannot in law constitute withdrawal on the facts of this case.

As we said in our main judgment, the appellants BR and TD were each unanimously convicted of the murder on 14 March 2007 of 16 year old Kodjo Yenga (count 4). The appellants Kurtis Yemoh, JB and MW were each acquitted of his murder but were unanimously convicted of the lesser charge of his manslaughter.

Yemoh, JB and MW were convicted of violent disorder relating to the same incident, a count to which BR and TD had earlier pleaded guilty. Additionally Yemoh (on his own admission), TD and JB were convicted of violent disorder on 17 February 2007 and Yemoh was convicted of inflicting grievous bodily harm on the same occasion. The incident of 17 February is described by the learned judge in passing sentence (see below). The victim was caused serious injury.

Yemoh, aged 16 at the time of committing the manslaughter, received an extended sentence of 15 years under section 228 of the Criminal Justice Act 2003 comprising a custodial term of 10 years (less 418 days spent on remand) and an extended period of licence of 5 years. He had one police warning for burglary and three previous court appearances for aggravated vehicle taking, attempted robbery and robbery, for the latter of which he had received a 6 months detention and training order.

BR, aged 13 at the time of committing the murder, was sentenced to be detained during Her Majesty’s Pleasure and to serve a minimum term of 15 years (less 418 days spent on remand). He had a previous court appearance for robbery and possession of a bladed article. He had also committed an attempted robbery, although not dealt with until after the murder conviction.

JB, aged 14 at the time of committing the manslaughter, received an extended sentence of 15 years under section 228 comprising a custodial term of 10 years (less 359 days spent on remand) and an extended period of licence of 5 years. He had nine previous court appearances for offences including assault on police (two occasions), attempted robbery and affray for which he had been sentenced to a 6 months detention and training order. Later the warrant was amended to show the remand time as 325 days.

MW, aged 13 at the time of committing the manslaughter, received an extended sentence of 15 years under section 228 comprising a custodial term of 10 years (less 418 days spent on remand) and an extended period of licence of 5 years. MW had no previous reprimands or court appearances.

TD, aged just under 16 at the time of committing the murder, was sentenced to be detained during Her Majesty’s Pleasure and to serve a minimum term of 15 years (less 418 days spent on remand). He had no previous reprimands or court appearances.

No separate penalty was imposed on the other counts and on the February 17 indictment.

In passing sentence the judge said, amongst other things:

Kodjo Yenga was lured to a quiet residential street in Hammersmith on the pretext that he was to be challenged to a one-to-one fight. You, TD, and you, BR, were the prime instigators in that challenge. You, MW, you, Kurtis Yemoh, and you, JB, were part of the gang of youths who confronted Kodjo once he was there.

What then happened was anything but one-on-one. Following an initial exchange of blows, you all pursued Kodjo as a pack. I am quite satisfied that you, JB, deliberately set loose your Staffordshire bull terrier dog with the intention that it would join in the attack, although in the event it caused Kodjo inconvenience rather than injury.

Kodjo was chased into Hammersmith Grove by all of you. You, TD, on the evidence were armed with a Stanley knife. You had threatened Kodjo with it. Whether that was the knife that eventually killed him is doubtful. It is far more likely that a more substantial weapon was used to stab him through his clothing and into his heart. It cannot be said with any degree of certainty on the evidence which of you was armed with the murder weapon, and nor in my judgment does it matter. You, BR, and you, TD, may have been the assailant; I cannot say. But you are both convicted of murder on the basis that you knew perfectly well that one of your number was armed with a knife or other sharp implement which might be used to attack Kodjo with murderous intent. You, MW, you, Kurtis Yemoh, and you, JB, also knew perfectly well that such a weapon was present which might be used to attack Kodjo and cause him at least some harm.

It was in those circumstances and with that knowledge that you all took part in the pursuit which ended in the needless loss of yet another young life as a result of the use of knives on the streets of our cities by youngsters such as you. Whether all or some of you were members of a formal gang -- it is said that you were all members or followers of the MDP gang -- again is unimportant. What is undoubtedly the case is that you are all part of the gang culture which casts its dreadful influence over so much of the youth of our inner cities and which leads almost inevitably to the sort of tragedy that has been seen so vividly here.

These events took place in broad daylight in a residential street, to the horror of people going about their business. The fact that you, almost without exception, come from decent and caring backgrounds makes the situation all the more worrying.

A month previously on a Saturday in February 2007 you, TD, you, Kurtis Yemoh, and you, JB, had been part of a gang of youths who attacked Seun Adeboyejo and terrified ordinary members of the public in Shepherds Bush market.

In passing sentence on BR and TD the judge said:

I have to set the minimum term which you must each serve before you may be considered for release on licence. The starting point in each of your cases is agreed to be 12 years. The only mitigation in your cases is your youth and the fact that I cannot be sure that you intended to kill. Otherwise, your crime is greatly aggravated by the factors which I have already identified, not least the use of knives. You, TD, are of previous good character; you, BR, are not, and you are mature beyond your years. Despite the disparity in your ages I intend to treat you equally. The minimum term in each of your cases is 15 years (Underlining added).

In passing sentence on the others, the judge said:

MW, Kurtis Yemoh and JB, will you stand, please. I am satisfied in all of your cases, taking into account your antecedents, all that I have read about you and the serious nature and circumstances of your conviction for manslaughter, that there is a significant risk to members of the public of serious harm occasioned by the commission by you of further specified offences. I am, however, satisfied in each of your cases that an extended sentence under section 228 of the Criminal Justice Act 2003 will be sufficient protection for the public and indeed accord you the extended licence which I think you all need upon release. Accordingly, on Count 4 of this indictment I pass upon each of you an extended sentence, the total term of which is 15 years, of which 10 years is the custodial term and 5 years the extension period for which you are to be subject to licence once you have completed the normal licence period following release.

On behalf of all the appellants it is submitted that the judge made a finding of premeditation when he said: “Kodjo Yenga was lured to a quiet residential street in Hammersmith on the pretext that he was to be challenged to a one-to-one fight” and that counsel was not forewarned of an intention to make this finding and that this finding was not justified. Thereafter it is said that, although he did not use the word premeditation, he made it clear that he was sentencing on the basis that the offences were premeditated. We were referred to the sentencing remarks in the case of BR and TD and the words which we have underlined.

We looked carefully at the evidence and, in particular, at the period of time between the arrival of the victim and the start of the attack and the location of the start of the attack compared with the location of the victim when he first arrived and what happened during this period. Sir Allan Green QC did point to the fact that some of the appellants were armed. That does not, in our view, necessarily show the kind of premeditation to which Schedule 21 refers. We conclude, with all deference to the trial judge, that it would not be right to sentence on the basis of being certain that an attack had been planned beforehand. We also noted that the earlier encounter with Kodjo Yenga when he was with his girlfriend Shar-de Cummings in Hammersmith, West London was not pre-planned. It was at that stage that TD said “I hear you want to fight me” and Kodjo Yenga agreed to a one-on-one fight with him. The fight was to take place at the corner of Agar Road and Adie Road. BR’s later receipt of the rucksack in Adie Road tends to suggest that at that stage it was going to be a one on one fight. There was evidence from a witness FF that the start of the attack came a little later in Adie Road when deceased picked up a scaffold pole. In the words of one counsel, what started as a one on one fight spiralled out of control and in the words of another counsel “the confrontation escalated rapidly”.

The aggravating features are therefore: the prolonged chase and attack on a schoolboy, the possession of two knives one of which caused the death of 16 year old Kodjo Yenga, the possession of other weapons and the fact that “these events took place in broad daylight in a residential street, to the horror of people going about their business”. In the cases of Yemoh, TD and JB there was the aggravating feature of the earlier attack.

We turn to the sentences passed on BR and TD. Both were sentenced on the basis of participation in a joint enterprise. Both had the mitigating features, as found by the judge, of an intention to cause serious bodily harm rather than to kill. Both had the mitigating feature of age (BR 13, TD just under 16) and TD additionally had no previous convictions. On the other hand there was the additional aggravating feature in TD’s case that he had been involved in the nasty incident of February 17.

In our view the judge was right to set the same minimum term for the two of them. BR was younger and had a previous court appearance for robbery, and had, at the start of the incident, taken TD’s rucsack for safe keeping. TD was older and although he had no previous convictions he had been involved in the February 17^th incident. The agreed starting point is 12 years and in the light of our finding about the absence of a significant degree of planning or premeditation and giving due weight to their ages, we think that the right minimum sentence is one of 13 years. To that extent their appeals against sentence are allowed.

Yemoh was aged 16 and had serious previous convictions. It is submitted that the judge was wrong to make the finding of dangerousness. In the light of his antecedents and his involvement in the February 17^th offences, coupled with his age and the facts of the manslaughter, the judge was in our view entitled to make a finding of dangerousness and that finding is not challenged. Given our finding about premeditation, we reduce the sentence by substituting for the sentence passed an extended sentence of 13 years under section 228 of the Criminal Justice Act 2003 comprising a custodial term of 9 years (less 418 days spent on remand) and an extended period of licence of 4 years.

JB was 14 and time of the offence and had previous court appearances for assault and affray. There is no challenge to the finding of dangerousness, nor could there be in the light of the previous offending, the index offence and the contents of the PSR. In the absence of premeditation but bearing in mind JB’s bad record and his involvement in the offence of 17^th February, we reduce the sentence by substituting for the sentence passed an extended sentence of 13 years under section 228 comprising a custodial term of 9 years (less 325 days spent on remand) and an extended period of licence of 4 years.

MW was only 13 and had no previous remands or court appearances. He has expressed genuine remorse and is progressing well in detention. The finding of dangerousness is not challenged. In his case the absence of premeditation should result in the sentence being reduced by substituting for the sentence passed an extended sentence of 11 years under section 228 comprising a custodial term of 8 years (less 418 days spent on remand) and an extended period of licence of 3 years.