R v Saeed Ibrahim

On 6 September 2024, following his earlier conviction in the Crown Court at Inner London of the offence of murder (Count 1), the appellant, then aged 19, was sentenced to custody for life with a minimum term of 15 years. The appellant had been acquitted of the associated offence of having an article with a blade or point, namely a black handled knife, contrary to s.139 Criminal Justice Act 1988, on the same occasion (Count 2). With the leave of the single judge, he contends that the minimum term was manifestly excessive.

The offence was committed on 4 September 2023. The appellant was then aged 18 years and 9 months; his victim, Anis Zen, was aged 19. On that date, at about 5 pm, Anis Zen had been visiting his friend Zakaria Ougil in Masefield Avenue, Uxbridge. The appellant and Anis Zen had not previously encountered each other, but the appellant knew that he was Zakaria Ougil's friend.

Anis Zen arrived at Masefield Avenue in a taxi and asked the driver to wait. In the 10 minutes before, the appellant had telephoned Zakaria Ougil 15 times. The last call started with the appellant speaking to Ougil, but he then spoke to Anis Zen. The appellant was then seen on CCTV to be running at speed towards Anis Zen in Masefield Avenue. Within moments the appellant reached him. Anis Zen was stabbed twice and fell to the ground, bleeding heavily. The appellant made off with the knife in his hand. A member of the public saw him discard the knife as he ran home. It was later recovered by the police.

The appellant had stabbed Anis Zen twice in the chest, in quick succession. One wound penetrated the chest wall and struck the heart and aorta. It breached the side of the second, third and fourth ribs. The wound track was approximately 6 centimetres. The pathologist's opinion was that, given the damage to the ribs, severe force had been used. It was an independently fatal wound. The second wound penetrated the chest wall, diaphragm and into the stomach. This cut into the seventh rib. The pathologist concluded that this stab involved moderately severe force. Paramedics attended but Anis Zen was pronounced dead at the scene.

The appellant surrendered at the police station three days later. He gave no comment in his first interview. During a second interview he gave a prepared statement with an account which he then gave at the trial. He said that one month earlier he had been involved in a physical altercation with Zakaria Ougil, in which he had got the better of Ougil. He was fearful of reprisal from him, having been warned that they had been looking for him. He (the appellant) did not carry knives. On 4 September 2023 he had contacted Ougil, intending to clear the air. Ougil responded to the first call but did not answer the others. The final call was answered by Anis Zen, who the appellant claimed was aggressive. The appellant said that he had not been in possession of a knife but saw that Anis Zen had a knife in his waistband. During a struggle between them, the appellant grabbed the knife from Anis Zen and stabbed him, before running away. The appellant said that he had discarded the knife as he was worried that it would have his fingerprints on it. His defence to the charge of murder was lawful self-defence.

The appellant had a caution in 2023 for damaging property but had no previous convictions.

The author of the pre-sentence report recorded that the appellant had been very guarded during the interview undertaken for the preparation of the report; and had been reluctant to say anything other than to maintain that he had acted in self-defence. For one reason or another, the report proceeded on the erroneous basis that the appellant had been carrying a knife and thus had brought it to the scene. The author assessed his actions as callous and without pity, neither expressing victim empathy nor acknowledging the harm he had caused to the victim's family. The appellant was assessed as "a young man, who presents as rather immature which is perhaps understandable, given his chronological age".

In her sentencing remarks the Judge acknowledged that, in the light of the jury's verdict on Count 2, the appellant had not brought a knife to the scene. It was Anis Zen's knife. Accordingly the undisputed starting point for the minimum term pursuant to Schedule 21 of the Sentencing Code was 15 years.

The Judge stated that the pathological evidence of the two stab wounds delivered in quick succession, together with the appellant's evidence at trial in which he demonstrated how he had held the handle of the knife in his closed fist with a blade pointed towards Anis Zen's chest, established overwhelmingly that at the time he grabbed the knife from the waistband he intended to use it aggressively upon him. Thus, having taken the knife from the waistband, he had neither thrown it away nor gone away himself. Rather, he remained at the scene and used it offensively upon Anis Zen, who was struggling to prevent him from using the knife. The Judge continued that the appellant's aggressive demeanour as he approached Anis Zen was witnessed by others.

Turning to the pre-sentence report, the Judge noted the assessment that the appellant's actions were cold and callous; that he had not expressed any empathy with the victim or his family; and that, aged 19, he presented as immature. The Judge added that she had observed him as calm and controlled throughout the trial.

The Judge accepted that none of the statutory aggravating factors applied. However she concluded that the following non-statutory aggravating factors were present: (1) the appellant's attendance at Masefield Avenue intent on a violent confrontation with Zacharia Ougil and/or Anis Zen; (2) the use of a knife; (3) the commission of the offence in daylight and in public, on a residential street where there were a number of eyewitnesses to the events; and (4) the efforts to conceal evidence. The throwing away of the knife was not just discarding in the moment, but a deliberate attempt to get rid of it. Further, he did not surrender himself to the police until three days after the murder; and did not provide his mobile phone, or the clothes he was wearing at the time of the murder, to the police at any stage during the investigation.

Turning to mitigating factors, the Judge accepted that three statutory mitigating factors applied: (1) no intention to kill; (2) lack of premeditation; and (3) his age (18) at the time. The Judge duly took account of the guidance from authority on the court's approach to age and maturity. She also took account of the absence of previous convictions; the character references which described the appellant as intelligent, kind, caring, loyal and a role model for his younger siblings; and his letter to the court which asked for forgiveness from Anis Zen's family and said that he was sorry.

Conversely, the Judge did not accept that this was a case within the statutory mitigating factor where the offender had "acted to any extent in self-defence". Anis Zen had had a knife in his waistband but had not brandished it or attempted to attack him with it. On the contrary, the appellant had approached him aggressively and, upon seeing the knife, had determinedly grabbed it from his waistband and then used it aggressively against him.

The Judge concluded that the aggravating factors should increase the minimum term from the starting point of 15 years to 17 years; and that the mitigating factors, including his age, should reduce that figure by one year. This resulted in a minimum term of 16 years, less the time spent on remand (365 days), namely a minimum term of 15 years.

In exchanges immediately after sentence was passed, Leading Counsel for the appellant reminded the Judge that the author of the pre-sentence report had proceeded on the erroneous basis that the appellant had brought a knife to the scene and asked if that made any difference. The Judge made clear that she had specifically ignored the observations in the pre-sentence report to that effect and thus the error in the report had had no effect on the sentence imposed.

The written grounds of appeal begin with the contention that the Judge took a starting point of 17 years, from which she subtracted one year for the appellant's young age and then 365 days for the time spent on remand. That contention is unfounded. The Judge took the correct statutory starting point of 15 years and then adjusted that figure in the light of the aggravating and mitigating factors which she found. She then duly deducted the time spent on remand.

The appellant then submits that the Judge wrongly identified and/or weighed the aggravating and mitigating factors and thus produced a minimum term which was manifestly excessive.

As to the aggravating factors, Mr Wells submits that the Judge wrongly held that these included attending Masefield Avenue intent on a violent confrontation. If the appellant had come to the street without a knife in his possession and with the intent of a fist-fight with Zakaria Ougil and/or Anis Zen, that was a public order offence which would in itself not usually have led to a custodial sentence. Accordingly, it was wrongly treated as an aggravating factor for the offence of murder.

Mr Wells then submits that it was wrong to characterise the throwing away of the knife as a serious and deliberate attempt to conceal evidence. The appellant threw it away close to the scene and in the presence of onlookers. The knife ended up on the front drive of a nearby house; and was quickly and easily found by the police. It was a spontaneous act, done in horror, not a deliberate attempt to conceal. As to the appellant's mobile phone and clothes, he was asked no questions about the clothes in the trial. In his second police interview he had accepted that he had stabbed Zen with the knife. As to the phone, the details of the calls made were all contained in a schedule which was before the jury. One way and another, it was wrong and unfair to treat those matters as aggravating the offence. Alternatively, and in circumstances where none of the statutory aggravating factors applied, the weight given to these and all the aggravating factors identified by the judge was manifestly excessive. There was no proper basis to add two years for these factors.

Turning to the mitigating factors, the Judge was wrong not to have concluded that the appellant had to an extent acted in self-defence, albeit unlawful self-defence. Whilst the jury had rejected his defence, they had by their acquittal on Count 2 rejected the Prosecution case that he had brought the knife to the scene. The knife had been brought to the scene by Anis Zen. Further, the Agreed Facts recorded Anis Zen's previous convictions for robbery and for possession of an offensive weapon, namely a machete. Thus the jury verdicts and the evidence were consistent with an element of self-defence; and the Judge should have given weight to this statutory mitigating factor.

Further, it should have been noted that the appellant's expression of remorse had been made from the outset, in his defence case statement. Mr Wells added that the significance of the observations in the pre-sentence report was undermined by the author's central and erroneous assumption that the appellant had brought the knife to the scene.

All in all, and giving due weight to the appellant's young age and immaturity, the mitigating factors substantially outweighed the aggravating factors; with the consequence that the minimum term imposed by the Judge was manifestly excessive.

On behalf of the Crown, Mr Hearn submits that the Judge was in the best position to identify and weigh up the relevant aggravating and mitigating features and that there is no basis to challenge any part of that exercise. The aggravating factors were serious and merited a substantial uplift from the starting point of 15 years. In oral submissions he argued in particular that attending the scene intent on violence was an important and aggravating feature. The mobile phone was also a material aggravating feature. Whilst there was a schedule of calls made, there was not - because the handset had not been produced - the consequential analysis which could have been made of messages on the phone, on social media and otherwise. Given the appellant's acceptance that he had been present at the scene and had used the knife on Zen, Mr Hearn accepted that the absence of clothing did not have any significant effect on this case.

As to the mitigating factors, the Judge had expressly taken account of the appellant's young age and immaturity; and of the fact that the offence was not premeditated and that he did not have the intent to kill. The Judge was entitled to reject the contention that the appellant had acted to an extent in self-defence. On his own case, he had approached Anis Zen intent on a violent confrontation. Whilst he was sentenced on the basis that he had disarmed Zen of a knife carried in his waistband, the appellant did not suggest that Zen had produced or brandished the knife. The Judge was entitled to find on the evidence that, once the appellant had obtained the knife, he had immediately used it aggressively to attack Zen.

The Judge had concluded that the aggravating factors outweighed the mitigating factors to the extent that there should be a modest uplift of one year from the statutory starting point. That was a reasonable assessment in all the circumstances.

In considering this appeal, we keep in mind the great advantage which the trial judge has in identifying, and giving weight to, the relevant aggravating and mitigating factors; and in making such findings of fact as are necessary for that purpose. Having sat through the trial and heard all the evidence, the judge is generally in the best position to make these assessments.

As to the identified aggravating factors, we consider that the Judge was entitled to find that these included the use of a knife and the commission of the offence in daylight and in public in a residential street. We also consider that the Judge was entitled to conclude that the disposal of the knife was an aggravating factor; and for that purpose to make the finding of fact that it was not just a momentary discarding but a deliberate attempt to get rid of it.

We also accept that the appellant's attendance at Masefield Avenue intent on a violent confrontation was an aggravating factor. However, in our judgment, it was a factor of distinctly limited weight in circumstances where the appellant did not bring a knife to the scene and it is accepted that there was no premeditation of murder. We do not consider that the failure to surrender to police until three days after the murder is an aggravating feature of the offence. We accept that the failure to deliver up the mobile phone was an aggravating feature, since this prevented analysis of the handset in respect of messages. Conversely, and as Mr Hearn fairly accepted, in this case the absence of the clothes made no difference because the appellant accepted that he was present.

As to statutory mitigating factors, we are not persuaded that the Judge should have found an element of self-defence. As the trial judge, she was in the best position to make that assessment and we see no basis to challenge her decision or her supporting conclusions of fact.

As to the statutory mitigating factors of lack of premeditation or of intent to kill, we consider that these deserved substantial weight in the circumstances of this case. As to the appellant's young age and level of maturity, the Judge duly took this into account and reminded herself of the cautionary guidance against treating the age of 18 as a cliff-edge. That said, save for the very fact of the offending, there was little to show that its level was different to those of a similar age. We accept that the pre-sentence report was of distinctly limited weight, given its erroneous factual premise. However the Judge made clear that she had that error in mind when making reference to the observations about the appellant in the report.

With all these considerations in mind, we return to the balancing exercise in respect of the aggravating and mitigating factors. All in all, we are not satisfied that there was sufficient basis for the conclusion that the aggravating factors outweighed the mitigating factors. In our judgment the mitigating factors at least matched the aggravating factors. We conclude that the minimum term, before deduction of time spent on remand, should not have exceeded 15 years. With deduction of 365 days for the time on remand, this results in a minimum term of 14 years. We reduce the minimum term and allow the appeal to that extent.