ON APPEAL FROM CENTRAL CRIMINAL COURT
HIS HONOUR JUDGE MORRIS QC
T20157264
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
LADY JUSTICE SHARP
MR JUSTICE SWEENEY
and
HIS HONOUR JUDGE DEAN QC
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
Between :
DWAYNE KING | Appellant |
- and - | |
R E G I N A | Respondent |
David Hislop QC (instructed by Arora Lodhi Heath Solicitors) for the Appellant
Sean Larkin QC (instructed by The Crown Prosecution Service) for the Respondent
Hearing date : 16/12/2016
Judgment Approved
Mr Justice Sweeney :
Introduction
On 17 December 2015, at the conclusion of his trial in the Central Criminal Court, the Appellant (who is now aged 31 and was of previous good character) was acquitted of murder but convicted of manslaughter and was sentenced by the trial judge, HHJ Morris QC, to twelve years’ imprisonment less 140 days (variously served on remand or whilst subject to a qualifying curfew). He now appeals against sentence by leave of the Full Court, differently constituted.
There are two grounds of appeal, namely that:
In making a number of findings of fact against the Appellant the judge:
Failed to direct himself as he ought to have done;
Made findings against the weight of the evidence;
Made findings that no reasonable jury, properly directed, would have done.
The sentence was, for a number of reasons, manifestly excessive.
The argument advanced on behalf of the Appellant in relation to the first ground gives rise to the consideration of what is the correct approach by the judge, after a trial, to the determination of the factual basis upon which to pass sentence. In particular, as to whether, when positive cases have been advanced at trial (see Fleury [2014] 2 Cr.App.R. (S.) 14), and there is evidence to support two or more possible versions of events consistent with the jury’s verdict(s), sentence must be passed on the basis that is most favourable to the defendant (see Stosiek 4 Cr.App.R. (S.) 205 and Tovey 14 Cr.App.R. (S.) 766).
The judge’s sentencing remarks
The judge found the following facts: -
The Appellant worked as a mechanic at garage premises in Harlesden and from April 2015 was looking after those premises while the owner was away. The victim Granville Thomas was a 55-year-old married panel beater with four children, who rented space at the premises. In early May 2015 he had completed repairs on a Vauxhall Astra motor car, but left it parked at the premises.
Over the period between April/May and June 2015, a dispute had arisen between the Appellant and Mr Thomas. It was unclear whether this was because Mr Thomas had had to carry out re-spray work in the open air (which produced an unsatisfactory result) or for some other reason. At all events, the ongoing presence of the car, which obstructed access to the premises, had been a source of continuing frustration to the Appellant.
On 29 June 2015, Mr Thomas had ridden to the garage on his bicycle. He had a quantity of cannabis with him and had no apparent intention of removing the Astra that day. An argument had then developed between him and the Appellant – but it was unclear whether that was over Mr Thomas’s failure to remove the car, or his failure to make payment for his use of the garage premises, and / or over the supply of cannabis by him to the Appellant.
At some stage, Mr Thomas had produced a multi-tool which had a penknife attachment with a 4-centimetre blade, which was exposed in some way. It was, however, unlikely that Mr Thomas had made any sort of significant attack with the knife because the Appellant was well able to deal with any threat that he posed, and the Appellant had suffered no injury during the fatal events.
The Appellant had armed himself with a substantial kitchen knife (with a 19-centimetre blade) that was kept in the workshop. He was thus armed with a much more dangerous weapon than the one held by Mr Thomas (who was substantially older) and had never really been in fear of injury at Mr Thomas’s hands from the multi-tool. However, the production of the multi-tool had caused the Appellant to lose his temper and for that reason, not self-defence, he had stabbed Mr Thomas once with severe force – with the knife penetrating, through Mr Thomas’s breastbone and heart, to a total depth of 10 centimetres. It must have come as a complete surprise to Mr Thomas, who had no defensive injuries. It had, nevertheless, not been premeditated and, in accordance with the jury’s verdict, there had been no intention to kill or to cause grievous bodily harm.
The Victim Personal Statement by Mr Thomas’s brother made clear the consequences of Mr Thomas’s death on his family.
The judge thus accepted that the knife had not been brought to the scene from elsewhere, but said that nevertheless it was an aggravating feature that the Appellant had taken hold of it and used it.
The judge said that the mitigating features were the lack of premeditation; the extent to which the Appellant was provoked by the behaviour of the deceased; the fact that he had remained at the scene, called the emergency services, and cooperated with the police (albeit that he did not plead guilty); his previous good character; and his expression of remorse in a letter to the court.
Having referred to the fact that the courts have said time and time again that knife crime would not be tolerated, and having taken into account the aggravating and mitigating features, the judge imposed the sentence to which we have already made reference.
The first ground of appeal
The findings of fact that are attacked are that the judge:
Did not believe that the Appellant was scared.
Did not believe that the deceased had attacked the Appellant with the multi-tool.
Did not, therefore, accept that this was a case of excessive force by the Appellant whilst defending himself from attack.
Concluded that the Appellant became angry when the deceased produced a knife and that it was that anger which had provoked his attack on Mr Thomas.
As to the judge not believing that the appellant was scared, Mr David Hislop QC, on the Appellant’s behalf, relied on the following matters:
On arrest, the Appellant, who had called the police, had said that he had been protecting himself.
Self-defence, and particularly the use of excessive force in self-defence, was a live issue throughout the trial.
The evidence of the prosecution witness Christopher Major – which, it was said, supported the Appellant’s account that he had been frightened at the time he was attacked by the deceased.
Mr Major’s evidence was to the effect that about a week before the fatal event the Appellant had told him that he had had some trouble with Mr Thomas about payment for using the garage, and had said that Mr Thomas had threatened to come back to the garage with violence, and to get the car without paying for it.
Mr Major said that he himself had gone to the garage on 29 June 2015 (albeit with his leg in plaster and having to use a crutch) and that he had been there when Mr Thomas had arrived. Initially, he said, everything had been fine. The Appellant had said that the car was taking up space and had asked Mr Thomas to take it away (whether with, or without, making payment), and Mr Thomas had picked up the car keys. Mr Major had then gone to the toilet at the premises for a few minutes, and when he had emerged the Appellant and Mr Thomas were arguing. The Appellant was telling Mr Thomas to take the car and go. Mr Thomas had then become more and more aggressive, bullying and hustling the Appellant and had then picked up a large roll of cling film, taken hold of the Appellant’s collar, pushed him up against a wall and raised his arm. The Appellant had said “No, please don’t do that” and Mr Thomas had gone as if to hit the Appellant with the roll, but had then stood back.
However, Mr Thomas had then become more aggressive and had pulled an item (which Mr Major struggled to describe, but which was consistent with having been the multi-tool to which we earlier made reference) and had tried to get something out of it (although Mr Major never saw a blade). Mr Thomas had said that he was “on a bad man thing” (i.e. he had threatened violence) whilst the Appellant had said things like “What’s up? Why did you just do that?”
Mr Thomas said Mr Major had been way too aggressive – so much so that he had thought he had mental problems. He could see that the Appellant looked frightened. Mr Major said he thought that Mr Thomas was going to kill the Appellant and that he might then well turn on him (Mr Major) so he had walked out of the premises, leaving his crutch behind. As he did so, he had heard fighting behind him. He had remained in the vicinity and had later seen Mr Thomas, who was carrying a 4x4 piece of metal in his hand, walk very slowly out of the premises and then collapse and fall onto his side. The Appellant had then come out. He had looked shocked and did not say anything. Mr Major had then collected his crutch and had left before the police arrived
As to the judge not believing that the deceased attacked the Appellant with the multi-tool, Mr Hislop relied on the following matters:
The Appellant had an injury - as recorded in paragraph 15 of the Agreed Facts, the nurse who examined him at the police station had found that he had a half-centimetre long fresh graze in the wrinkle area of his right elbow.
Mr Major’s evidence that Mr Thomas had taken hold of the Appellant and had gone to hit him with the roll of cling film.
Mr Major’s evidence that when he had left the garage the Appellant had been under imminent attack by Mr Thomas, who had taken hold of the multi-tool.
Expert evidence that the blade of the multi-tool had airborne spots of Mr Thomas’s blood on it – the only sensible conclusion from which was that the knife, with its blade open, had been in his hands when he had suffered the fatal wound.
Paragraphs 36-39 of the Agreed Facts which recorded accounts from two individuals who had reported seeing a previous confrontation between Mr Thomas and another male in Ranelagh Road NW10 (i.e. near the garage premises) when Mr Thomas had drawn a knife.
Hence, Mr Hislop submitted, the logical conclusion to be drawn from the absence of injuries to the Appellant was not that he had not been attacked at all – but rather that he had not been successfully attacked.
Mr Hislop further submitted that the Judge’s conclusion that this was not a case of excessive force in self-defence was a finding to which no reasonable jury, properly directed, could have come. This was not, he submitted, so much a case where there were two possible versions of events and the judge should have chosen the one most favourable to the accused, rather it was one in which the preponderance of the evidence was very much against the judge’s findings, and the reality was that there was no viable version other than that the Appellant had acted in excessive self-defence.
Finally on this Ground, and as to the judge’s conclusion that the Appellant had become angry because Mr Thomas had drawn a knife, and that it was that which had provoked the Appellant’s attack, Mr Hislop submitted that the evidence from which a proper inference could be drawn that the Appellant had become angry was, at best, contradictory – contrasting passages in Mr Major’s evidence (which did not suggest that the Appellant had been angry at any stage) with passages in the evidence of another prosecution witness called Ronnie Augustine.
Mr Augustine lived near the garage premises and was at home at the material time. He had heard raised, angry, male voices coming from the direction of the premises. Whilst, at one point, he had said that he could not be sure whether it was one or two men arguing, ultimately he was “pretty sure” that it was two voices sounding very aggressive and involved in an argument. He had then seen a male (clearly Mr Thomas) come out of the premises and then, having avoided a piece of scaffolding that was thrown at him by someone, stagger and collapse onto the ground out of Mr Augustine’s view (which was blocked by a fence). He had then seen a second male (clearly the Appellant) emerge from the premises with a knife (which he later identified, and which was undoubtedly the one used by the Appellant) in his hand. The second man had approached the first man, had leaned over him for a few seconds, and had then discarded the knife and moved away. A third man had then come from somewhere and had talked with the second man and on his own mobile phone. Mr Augustine had later seen the first man being worked on by paramedics at the scene.
Against that overall background, Mr Hislop drew our attention to three strands of authorities in relation to the following principles:
Where, as a result of two or more positive cases being advanced at trial (see Fleury above), there is evidence to support two possible versions of events consistent with the verdict(s) of the jury, sentence must be passed on the basis that is most favourable to the defendant (see Stosiek and Tovey above).
If more than one view of the facts is consistent with the jury’s verdict(s) the sentencer, applying the criminal standard, may, in the light of the evidence, form his own view and pass sentence on that basis – see e.g. Boyer 3 Cr.App.R. (S.) 35,
If the judge has properly directed himself, this court will not interfere with a finding of fact made by him unless the court concludes that no properly directed jury could have reached that conclusion – see e.g. Wood 13 Cr.App.R. (S.) 207 and Gore [1998] 1 Cr.App.R. (S.) 413.
In granting leave the Full Court invited counsel to address any apparent tension between the first two principles. Mr Hislop submitted that there was none - rather the Stosiek line of authority simply qualified the Boyer approach.
Mr Hislop further submitted that there were clear similarities between Stosiek and the Appellant’s case – in that in both there was more than one way, on the evidence, in which the jury could have reached their verdict. Here, it was submitted, the Appellant’s evidence was supported by the uncontradicted evidence of Mr Major and by the scientific evidence, and the judge had failed, as was required of him by Stosiek, “to be extremely astute to give the benefit of any doubt to a defendant about the basis on which a jury has convicted.”
Hence, Mr Hislop submitted that, in making the findings that he did, the judge had failed to direct himself as he should have done; and had come to findings of fact that no reasonable jury, properly directed, could have come to.
Mr Sean Larkin QC, for the Respondent, placed particular reliance on Griffin [2008] 2 Cr.App.R.(S.) in which, at [9] & [10], the Court said this:
“We are satisfied that the judge was perfectly entitled to do what he did and reach the conclusion that he did. We accept that if there is only one possible interpretation of a jury’s verdict then the learned judge must faithfully sentence on that basis, whether he agrees with it or not. But we do not accept that in this case there was only one possible interpretation of the verdict that the jury brought in, i.e. their failure to agree on murder but their agreement on the manslaughter verdict.
In those circumstances, where there is more than one possible interpretation the judge is perfectly entitled, indeed must make up his own mind, on which basis he should sentence and decide that on his view of the evidence”.
Mr Larkin accepted that, obviously, if there was more than one possible interpretation of the jury’s verdict(s), and the judge could not be sure of any one of them, then (in accordance with basic fairness) he would be obliged to pass sentence on the basis of the interpretation most favourable to the defendant. However, he submitted, it was wholly wrong to regard the Stosiek line of cases as providing any sort of freestanding, or otherwise qualifying, principle.
As to the factual findings, Mr Larkin submitted that the Appellant’s arguments failed to take account of the wider evidence that was before the judge during the trial, which included:
The Appellant’s police interviews, during the course of which (notwithstanding a direct question as to the presence of a third male) he had failed to mention the presence of Mr Major; had falsely claimed that the rear door to the garage premises (which would otherwise have permitted him to escape) was closed (when there was evidence from Mr Major and the police that it was open); and had failed to mention throwing the metal pole like object at Mr Thomas outside, or still holding the knife outside, until confronted with Mr Augustine’s account (when he had said that he could not remember it).
The Appellant’s case at trial – which was that on the evening of the incident he and Mr Thomas had been together for about an hour prior to the stabbing; that in addition to discussion about the debt there had been discussion about cannabis during the course of which he had handed the kitchen knife to Mr Thomas to cut the cannabis; that the weight was short and that he had refused to buy any cannabis from Mr Thomas, which had triggered an argument; that Mr Thomas had attempted to stab him four times; that he had disarmed Mr Thomas, had pushed him out of the premises, and had put the knife in a cupboard; that Mr Thomas had returned with a knife, had thrown a piece of metal at him, and (because the rear exit was closed) had cornered him; that he had removed the knife from the cupboard and that Mr Thomas had then run onto it; that Mr Thomas had then left and collapsed outside; that he, the Appellant, had put down the knife, and walked over to Mr Thomas; and that he had then called the police.
The overwhelming inference that the first attack alleged by the Appellant was an invention by him to seek to justify the stabbing – given, for example, that:
Mr Major had neither seen nor heard any such attack.
It made no sense to give a knife to the man who, he had told Mr Major, had previously threatened violence to him – which threat was confirmed in the Defence Statement (albeit denied at trial).
As Mr Thomas had a multi-tool knife, he had no need of the kitchen knife to cut cannabis.
Other than the fatal injury to Mr Thomas, there were no knife injuries to either man.
As to the judge not believing that the Appellant was scared, Mr Larkin drew particular attention to the following matters:
It was not disputed that the Appellant was bigger than, and over 20 years younger than, Mr Thomas.
Whilst Mr Major’s evidence had been that Mr Thomas was the initial aggressor, the judge was entitled to consider that in the round. Furthermore, Mr Major’s evidence differed to that of the Appellant in a number of significant respects, namely:
He said that Mr Thomas had picked up a roll of cling film and had pushed the Appellant against a wall (which was contrary to the Appellant’s case).
He said that the Appellant had said “What’s this all about?” and “What’s up?” and had been laughing as he spoke.
He made no reference to Mr Thomas attacking the Appellant (as alleged by the Appellant) with the kitchen knife.
He said that Mr Thomas had reached for his multi-tool and that he had seen the case of the tool (but not the knife / blade).
He said that he had then left and had told a neighbour “They’re fighting down there, see if you can go and talk to them.”
None of that suggested that the Appellant was in fear.
The evidence of Mr Augustine, including the throwing of the piece of scaffolding at Mr Thomas – which was an act of aggression and not consistent with self-defence, and which the Appellant claimed not to remember.
The evidence of the pathologist did not support the Appellant’s account that Mr Thomas had run onto the knife. Rather, the pathologist had concluded that the degree of force was such that the knife would have had to have been braced, and Mr Thomas moving at some speed, for the injury to be caused by a running on, and neither was consistent with the evidence.
On his own account, the Appellant was in a position whereby an older, weaker man was on the floor before him. He had grabbed one arm and exercised control. He had had an opportunity to leave but instead had armed himself with the knife and stabbed Mr Thomas in the heart with severe force to a depth of 10 centimetres – with the knife passing through the bone of the sternum.
As to the judge not believing that Mr Thomas had attacked the Appellant with the multi-tool knife, Mr Larkin drew attention to the following matters:
If, as the Appellant had claimed, he had been attacked at close quarters by Mr Thomas wielding, firstly, the kitchen knife and, secondly, the multi-tool, some form of injury, damage to clothing or other sign of contact with one or both knives would be expected. Equally, it would be expected that the Appellant would have alerted Mr Major to what was going on, or had just gone on – but none of the above had happened.
Mr Major’s account was, instead, that Mr Thomas had attacked the Appellant with the large roll of cling film.
The injury to the Appellant’s elbow was consistent with a general scuffle.
The Appellant had not been under imminent attack – given Mr Major’s evidence that he had seen Mr Thomas reach for his multi-tool but had never seen the blade out; that Mr Thomas and the Appellant were a step or two away from each other; that he had then left and had heard that they were fighting; and the Appellant’s own account that he had grabbed Mr Thomas’s arm and that Mr Thomas had been on one or both knees.
The airborne spots of blood on the blade of the multi-tool meant only that it had been open at some stage after the infliction of the fatal injury, and there were no bloodstains inside the premises where (on any view) the stabbing had taken place. It was thus more likely that the blood had got onto the blade in the yard outside (where there was other bloodstaining) albeit that, when found, the blade had been closed.
As to the judge’s conclusion that the Appellant had become angry when Mr Thomas had produced the multi-tool, and that that was what had provoked the fatal attack, Mr Larkin submitted that the judge was entitled (as any properly directed jury would have been) to conclude, on the evidence, that:
The Appellant had been annoyed by Mr Thomas’s failure to pay a debt (as recorded in his diary and by reference to telephone calls).
An argument had broken out between them.
The Appellant had invented his account that Mr Thomas had attacked him with the kitchen knife.
Mr Thomas had attacked the Appellant with the roll of cling film which had further annoyed the Appellant.
Mr Thomas had reached for the multi-tool knife.
Whilst he did so, the Appellant had armed himself with the kitchen knife and had stabbed Mr Thomas, with severe force, in the heart.
Although Mr Thomas had fled, the Appellant had thrown what had appeared to be a piece of scaffolding (which may, in fact, have been the roll of cling film) at him.
The Appellant had also concealed the kitchen knife.
The second ground of appeal
As to the second ground, Mr Hislop variously submitted that:
If the Appellant had been convicted of murder, the starting point in determining the minimum tem would have been 15 years – followed by an uplift to reflect the aggravating feature of the use of the knife.
However, there was significant mitigation which would have brought the minimum term actually imposed to one in the order of 15 years – the broad equivalent of a determinate term of 30 years.
Whilst, as reflected in cases such as Attorney General’s Reference No.60 of 2009 (Appleby and others) [2010] 2 Cr.App.R. (S.) 46, and Nicholles [2015] EWCA Crim 1174, there has been a significant upward trend in the length of sentences imposed in cases of manslaughter in recent years, each such case turns on its own facts, and the instant case was towards the bottom of the relevant range.
In any event, the judge had given insufficient weight to the following factors:
There was no intention to kill or to cause serious bodily harm.
This was not violence in public, and involved men who knew each other.
There was a single stab wound.
There was a lack of premeditation.
The fact that the Appellant had been provoked by an attack on him by Mr Thomas.
The fact that the Appellant had acted, to a considerable extent, in self-defence.
The Appellant’s age and previous good character.
The fact that he had remained at the scene, telephoned the emergency services and had co-operated with the police.
As to the authorities, Mr Larkin drew our attention, in addition, to Wood [2010] 1 Cr.App.R. (S.) 2, Young [2012] EWCA Crim 2618, and finally to Huggins [2016] EWCA Crim 1715 in which the Court reviewed a number of the most recent cases on sentencing for manslaughter resulting from the use of a knife. Mr Larkin submitted that, against that background, and given that the judge’s findings of fact (including that severe force had been used) were made after he had presided over the trial, and although this case involved the picking up and using of a knife (rather than taking it to the scene for the purpose, or otherwise having it with him in public as in the other cases) the sentence imposed on the Appellant was clearly within the relevant range.
Discussion
In our view the correct approach by the judge, after a trial, to the determination of the factual basis upon which to pass sentence, is clear. If there is only one possible interpretation of a jury’s verdict(s) then the judge must sentence on that basis. When there is more than one possible interpretation, then the judge must make up his own mind, to the criminal standard, as to the factual basis upon which to pass sentence. If there is more than one possible interpretation, and he is not sure of any of them, then (in accordance with basic fairness) he is obliged to pass sentence on the basis of the interpretation (whether in whole or in relevant part) most favourable to the defendant.
There is abundant authority, in addition to Boyer and Griffin (both above), for this approach. The cases include Ekwuyasi [1981] Crim. L.R. 574, Solomon & Triumph 6 Cr.App.R. (S.) 120, McGlade (1990) 12 Cr.App.R. (S) 105, Cawthorne [1996] 2 Cr.App.R. (S.) 445, Cloud [2001] 2 Cr.App.R. (S.) 34, Martin [2002] 2 Cr.App.R. (S.) 34, Spedding [2002] 1 Cr.App.R. (S.) 119, Bertram [2004] 1 Cr.App.R. (S.) 27, and Mills [2004] 1 Cr.App.R. (S.) 57.
It is equally clear that, to any extent that the Stosiek line of authority, even as limited by Fleury (above), has in the past been treated as being a freestanding principle, that is no longer the case.
Instead, the Stosiek line has clearly been subsumed within the correct approach that we have identified above – as explained by Fulford J (as he then was) in giving the judgment of the Court in Bertram (above) when, at [20] and [21], he said:
“Where, for instance, one or more plausible alternatives are left to the jury, as the foundation of their verdict ‘in those circumstances, the court has to be extremely astute to give the benefit of any doubt to a defendant about the basis on which a jury convicted’ per Watkins LJ in Stosiek….
Put otherwise, where a jury’s verdict is consistent with more than one version of the facts, it is for the judge, carefully applying the criminal standard of proof, to determine which version is correct. Accordingly, when the basis of the jury’s verdict is not clear, where there is uncertainty as to what the jury concluded, the judge is under a positive duty to decide the factual basis for the sentence (see Cloud….). When discharging that duty, where there is genuine confusion or obscurity, such as to make it impossible for a judge to make a positive finding to the criminal standard, then the sentence should be on the basis most favourable to the defendant (see Tovey….)….”
Nor, we would add, does Efionayi 16 Cr.App.R (S.) 380 provide any support for a contrary view - although sometimes suggested to do so. It was confined to its own very particular facts in Wang Lin Hai (CA unreported 8 November 2000), Martin (above), and Hopton [2005] EWCA Crim 794 - in which, at [11], the two judge Court underlined that it involved no point of principle, and that the approach in Boyer, Solomon & Triumph and McGlade (all above) should be followed instead.
It was a matter for the judge’s discretion as to whether the instant case was one of the rare ones in which, as part of the summing up, it was necessary to pose a question(s) to the jury which might make clear the factual basis of any verdict – see e.g. Hopkinson [2014] 1 Cr.App.R. (S.) 119.
Having chosen not to do so, it is obvious that he was fully aware that it fell to him to decide the factual basis upon which to pass sentence. It is equally evident from his sentencing remarks that he approached the task with considerable care. He explained both the factual aspects about which he was not clear, and the factual aspects about which he was either “clear” or “satisfied” (which include the findings of fact complained of). We have no doubt that, in relation to all those various findings, this very experienced judge was applying the criminal standard. Equally, for the reasons advanced on behalf of the Respondent, there was evidence upon which a properly directed jury could have reached each of the disputed findings. Thus, in our view, it is not appropriate for this Court to interfere with them.
Proceeding upon the basis of the facts found by the judge, balancing the aggravating and mitigating features, and taking into account the various authorities to which we have been referred, we have also concluded that the sentence imposed was within the appropriate range for an offence of this type.
Conclusion
For the reasons set out above, this appeal is dismissed.