R v BGW

No matter relating to the victim in this case shall during his lifetime be included in any publication if it is likely to lead members of the public to identify him as being a person concerned in the proceedings. Without prejudice to the generality, the following matters shall not be included in any publication during his lifetime if their inclusion is likely to have the result mentioned: (a) his name; (b) his address; (c) the identity of any school or other educational establishment attended by him; (d) the identity of any place of work of his; and (e) any still or moving picture of him.

On 21^st January 2022, following a trial in the Crown Court at Harrow before His Honour Judge Cole and a jury, the appellant (then aged 17) was convicted of two counts of conspiracy to kidnap (counts 1 and 4), two counts of conspiracy to commit false imprisonment (counts 7 and 9), and two counts of conspiracy to blackmail (counts 8 and 10).

On 29^th April 2022, he was sentenced by the trial judge on each of those counts to concurrent extended sentences of 15 years and 6 months, comprising a custodial element of 10 years 6 months and an extended licence period of 5 years.

The appellant appeals against those sentences with the leave of the single judge.

The offences arose in the context of two episodes of kidnap involving the same victim. The appellant and the complainant, a 17 year old male, had been friends. The complainant borrowed £500 from the appellant and, although he paid it back, the appellant wanted more money from him. Interrogation of the appellant's phone showed communication with the complainant prior to the first set of offences in September 2020 with references to the money owed and the need to repay the debt one way or another, including asking the complainant to move and collect drugs for the appellant as a way of repaying the debt. The complainant refused to do so.

On 25^th September 2020, the complainant went to Harlesden to buy an electric scooter about which somebody had messaged him. He communicated by phone with the apparent seller who was in fact one of the co-accused in the case. He was met by one of the defendants ("Defendant 1") and then led to where the appellant and others were waiting. They demanded money from him. He was punched and slapped and then taken to a block of flats near Harlesden Station and held until the complainant's family paid £300. On that occasion the family paid the ransom without police involvement. The complainant was released at around midnight on 26^th September, having been held against his will for a period of some five hours. The police only became involved after the complainant had been released. He did not want to take the matter further with the police at the time.

After this episode the complainant moved out of London and stayed with relatives as his family were concerned for his safety.

On Saturday 5^th December 2020, the complainant travelled to Watford to meet a girl. He also agreed to meet another defendant ("Defendant 2"), who had been his friend for six years and who was also a friend of the appellant. Defendant 2 had not been involved in the events of 25^th September, and, in any event, the complainant thought that the debt situation with the appellant had ended.

The complainant planned to meet Defendant 2 by an underpass near Watford railway station and then meet the girl at another location. Defendant 2 did not show up at the agreed location. He messaged the complainant that he could not find him. He was met by the appellant and others in the underpass. One of the group had a knife. They told the complainant that they wanted more money. The appellant had by this time increased the debt from £500 to £1500. The appellant said that the complainant had "cussed his mother" and he demanded £3,000. After the first kidnap, the complainant had spoken disparagingly about the appellant and his family to a person he believed to be a friend. However, he later discovered that the appellant had set up a false account in that person's name, and that the complainant had in fact been unknowingly communicating with the appellant all along.

The appellant told the complainant that he was to be taken to Stonebridge. The appellant was with another male who had a knife and held it to the complainant's back. The complainant's phone was taken, and he was made to get into a cab with the others and told to pull up his Covid mask to cover his eyes. He was in the back seat, sandwiched between the appellant and another male. He was taken to a block of flats in Stonebridge, and then moved to another address. Before being moved to the second address he was threatened that he would be stabbed if he spoke. He was beaten by a group which increased in number to around nine people by the time they reached the second address. One of those who joined the group was Defendant 2. All of the others were masked.

Once inside the flat the complainant was beaten, including with saucepans, a belt and a gun. At times he thought he would be killed. The appellant told the person who lived at the flat that the complainant would be staying a couple of days and that person said that he wanted £50 from the group, which he was told he would receive. The complainant was kept at the flat. Another person who happened to be at the address had a broken foot and was using crutches. Soon after he arrived the complainant was stripped and beaten by the appellant with those crutches.

The complainant was prevented from leaving, and some of the group were stationed outside the front door. The group used the complainant's thumb print to open his phone and then changed the password. They obtained the PIN for his online banking. His phone was never returned to him. Two males were later seen to use the bank card to withdraw money from a petrol station and from an ATM.

The complainant's family were called, and he spoke to them. The appellant controlled the calls. The complainant said that the appellant had hit him with a crutch and with a gun and had threatened him with a knife. During his ordeal the complainant was subjected to humiliating treatment and made to strip naked. Videos of some of his ordeals were sent to several members of his family. His mobile phone was taken by the appellant. Repeated demands for money were made to the complainant's family using his mobile phone. The complainant's family transferred some money. The family called the police after the ransom calls had been made, and the police arranged for the ransom cash to be placed in a car in Harlesden.

Officers observing the vehicle saw Defendant 1 and another person approach it and remove an envelope containing £500 in cash.

When the complainant's uncle attempted to contact his nephew, he was told by an unknown male that if he did not pay £3,000 then the complainant would be stabbed and killed.

The complainant suffered injury to his nose, facial bruising, including a black eye, and severe bruising to both his upper arms and multiple scratches to his arms, chest and back.

The complainant's ordeal only ended when he was released on the morning of 7^th December 2020. He had been held against his will for around 36 hours.

The appellant was tried with two co-defendants. The trial lasted some two months. His two co-defendants were also convicted on the same charges of conspiracy to kidnap, false imprisonment and blackmail.

A further four co-defendants were convicted on some or all of the similar charges against them, following a trial in July 2023. One had previously pleaded guilty to two of the charges against him. They are all due to be sentence on 6^th October 2023 in the Crown Court at Harrow. Two were acquitted of all charges, and a further two remain at large, having never been charged.

In clear and cogent sentencing remarks, the judge took account of a detailed pre-sentence report, a psychologist's report and a report on the appellant's educational progress in detention.

The psychologist's report noted in particular that the appellant had trouble settling in school due to his "impulsivity" and suffered from "complex PTSD", as a result of abuse at the hands of adults at a boarding school in Kenya, which he had attended some years earlier. This results in "irritable behaviour and angry outbursts, reckless or self-destructive behaviour, problems with concentration, feelings of detachments (sic) from others, sleep disturbance, cognitive distortions with self-blame". The report concluded that the appellant is a "highly vulnerable young person".

The judge also considered the impact of the offending on the complainant and his family. He noted the injuries suffered by the complainant which, as we have said, included bruising and grazes to his face, limbs, wrists, hands and back, and his fear during the second kidnapping that he would die.

Whilst there are no guidelines applicable to these offences, the judge took account of the guidelines on sentencing children and young persons ("the youth sentencing guidelines"), and he took account of relevant authorities.

As to the appellant's role in the offending, the judge concluded that although he was the youngest, the appellant was "clearly the architect and driving force of both kidnaps and the only defendant to be facing both sets of offending". The judge formed the view that the appellant is highly "manipulative, controlling and ruthless", and that he played a "leading role" in the crimes.

The judge then took account of numerous aggravating features, including the fact of planning and organisation, the attempts to blame an innocent and vulnerable third party, and the attempts to persuade the complainant to sell drugs for him in lieu of the debt.

As to mitigation, the judge said as follows:

After considering the position of the co-defendants, the judge proceeded to sentence the appellant as follows:

In relation to the co-defendants, the judge took a lower starting point of 11 years on account of their more limited role in the offending. They were not found to be dangerous, and the judge passed the sentences to which we referred earlier.

The appellant lodged Grounds of Appeal in May 2022. The first ground of appeal is that a greater reduction than the one-third applied by the judge was warranted, given the appellant's young age and his particular vulnerabilities and mitigation; in particular his history of sexual and childhood trauma and his diagnosis of PTSD and ADHD merited a further downwards adjustment. The second ground is that the disparity in the sentence imposed upon the appellant and that imposed upon his co-defendants was excessive, given that all three were involved in the later, more serious of the two kidnapping episodes.

Following the grant of leave by the single judge, the matter came before a different constitution of this court in February of this year. It was apparent at that stage that further information in the form of medical and other reports would be necessary in order to form a fair assessment of the appellant's position. The hearing was therefore adjourned to enable those reports to be lodged.

This court has had the benefit of the following reports, which were not available to the judge at the time of sentence:

In helpful submissions before us, Miss Harris submits that these further reports demonstrate both the connection between the appellant's PTSD and ADHD, and the poor behavioural and criminal choices he has made. She also drew to our attention the severe additional impact that custody is having and will continue to have on him because of those conditions, particularly the PTSD.

Mr Markham, on behalf of the Crown, submits that the grave, repeated nature of the offending, which resulted in considerable harm, means that, notwithstanding the further information, the judge's conclusions as to culpability remain sound.

Paragraph 6.46 of the youth sentencing guidelines provides:

In giving the judgment of the court in R v ZA [2023] EWCA Crim 596, William Davis LJ at [82] provided helpful guidance on the approach to be taken in sentencing children and young people. The following subparagraphs of that guidance are of particular relevance here:

The other relevant guideline in this context is “Sentencing offenders with mental disorders, developmental disorders or neurological impairments”, paragraph 22 of which provides:

Bearing in mind these principles, we turn to the various reports in this case. It is abundantly clear from those reports that the appellant's conditions and his complex PTSD render his experience of custody considerably more difficult and trauma-inducing than it might be for a young person without such conditions. It is less clear whether those conditions and his childhood experiences of abuse and trauma were a contributory factor in the offending conduct so as to diminish his culpability. We note Dr Farnham's conclusion that "this abuse has contributed to and aggravated [the appellant's] various mental health difficulties and has adversely shaped his personality structure", and Dr Parker's view that the appellant is prone to impulsivity and is "vulnerable to influence by peers". However, the suggestion that the appellant was vulnerable to peer influence is somewhat at odds with the judge's clear findings based on seeing the appellant over several weeks, that the appellant was the "architect" of the kidnapping scheme and that he was a "manipulative, controlling and ruthless" individual. These findings are not challenged.

It is also relevant to note in this regard that the jury's finding of guilt tends to undermine the appellant's contention, relied upon as part of his defence, that he conducted himself as he did under duress and acted under the influence of older members of a criminal gang who required him to enforce a drug debt.

That said, the conclusions expressed as to the appellant's overall vulnerability and immaturity cannot be disputed. Nor can it be ignored that the very fact that a child as young as 16 can be found to have engaged in such serious criminal conduct may itself be evidence of a reaction to some earlier trauma.

Taking all of these matters into account, we are of the view, informed as it is by far more material than was available to the sentencing judge, that the severe impact of custody on the appellant is a factor to be taken into account as an aspect of personal mitigation in his favour. The judge noted that the appellant was "doing well in custody", but that does not, in our view, take account of the substantial obstacles that the appellant has had to and continues to overcome in order to do well. These obstacles are also likely to have an effect on the efficacy of efforts to rehabilitate.

Whilst we note that there is in the material before us a suggestion that culpability is also diminished, such diminution is, in our view, limited. It is, in our view, very much the appellant's vulnerability that causes us to reach the conclusions that we do in this case.

In our view, the appellant's age would of itself justify a reduction of at least one third from the starting point applicable to an adult offender. Personal mitigation in the form of the appellant's conditions and traumatic background, all of which go to making the experience of custody extremely difficult for him, as well as his good character, warrant a further substantial reduction. We consider that there is ample justification on the material before us for an overall reduction of one half from the 16 year starting point identified, correctly in our view, by the judge.

This ground was not developed. We can deal with it very briefly. In our view, the second ground of appeal is without merit. There were sound reasons for the imposition of longer sentences on the appellant, who was the only one involved in both episodes of kidnapping and was clearly the driving force behind them both. Moreover, the aforementioned further reduction in the appellant's sentence and consequential diminution of the difference in sentence renders the disparity argument weaker still.

Accordingly, for the reasons set out above, we quash the determinate sentence of 10 and a half years' detention on counts 1 and 4 (conspiracy to kidnap) and counts 7 and 9 (conspiracy to commit false imprisonment). In their place we impose determinate sentences of 8 years' custody on each of those counts.

We do not disturb the finding of dangerousness. Accordingly, an extended licence period remains appropriate. We see no reason to reduce the 5-year extension period imposed by the judge. Accordingly, the sentences on counts 1, 4, 7 and 9 will be an extended sentence of 13 years’, comprising a custodial element of 8 years' detention in a young offender institution and an extended licence period of 5 years, to run concurrently on each count.

We have not imposed any extended sentences for the offence of conspiracy to blackmail. That is because, as the Registrar has helpfully identified, blackmail is not a "specified" offence within the meaning of section 255 of the Sentencing Act 2020, and an extended sentence is not available for that offence. The extended sentence imposed below was therefore unlawful.

Accordingly, we quash the extended sentence in respect of counts 8 and 10 (conspiracy to blackmail) and replace it with an ordinary determinate sentence of 8 years' detention in a young offender institution. This, too, will run concurrently with the other sentences.

To that extent this appeal is allowed.