R v Awais Ahmed

This applicant applies for leave to appeal the extended sentence of 24 years' imprisonment imposed upon him on 7 March 2024 following his trial in the Crown Court at Birmingham.

The sentence was imposed for an offence of possession of a firearm with intent to endanger life contrary to section 16 of the Firearms Act 1968 (count 3 on the indictment) and comprised a custodial term of 20 years with an extended licence period of 4 years. The applicant also seeks leave to appeal the concurrent sentence of 12 years' custody imposed for an offence of wounding with intent contrary to section 18 of the Offences Against the Person Act 1861 (count 2). He was acquitted of attempted murder by the jury. He was further sentenced to 3 months' imprisonment concurrent for possession of an offensive weapon in a private place to which he had pleaded guilty before the trial. All sentences were expressed as terms of imprisonment. As the applicant was aged 20 years at the time of conviction they should have been terms of detention in a young offenders’ institution. Although this will have no practical effect as the applicant is now aged 22 years, we direct that the record is amended accordingly.

At just before midnight on 26 June 2023 the applicant (then aged 20 years) was sitting in a Seat car with two friends outside a row of shops in Birmingham. A third friend named Baig had gone into a food shop close by. Another car drove up, whereupon a man named Coley, known to the those in the Seat, approached their car and spoke to them. Before Coley had got back to his vehicle the Seat sped away, leaving Mr Baig in the shop.

The Seat returned to collect him. They then went to Baig's car where the applicant collected a firearm, before they parked in a car park on Burney Lane. There, whilst still in the vehicle, the occupants were set upon by Coley, who had a large machete, and another. Coley and his accomplice gained access to the rear passenger seat where the applicant was sitting. Coley stabbed him to the right buttock with the machete causing a small 2 cm wound. The applicant produced the firearm and discharged it once at Coley's chest at close range. His attackers then fled.

Remarkably the bullet that entered Coley's chest had not damaged any major organs or blood vessels and he did not require surgery. It impacted on his clavicle and caused a fracture to his rib. However, the bullet lodged near to his spinal cord which means that it cannot be removed.

The applicant also attended hospital but not before returning to the car. On the prosecution case, this was to return the firearm. In any event it was disposed of by the applicant and never found. When his home address was searched a Zombie knife was found.

The applicant gave evidence at trial. He accepted that he was in possession of the firearm which he said he believed to be an imitation. He had pleaded guilty to the possession of a prohibited firearm (an alternative to the aggravated offence) before trial. This was not accepted by the prosecution. The jury rejected his contention that he was acting in lawful self-defence.

The applicant had two convictions for seven offences from 2019 and 2020 which mainly related to driving. His most serious convictions were for dangerous driving and driving whilst disqualified for which he received a youth rehabilitation order. This was his first custodial sentence.

The author of a pre-sentence report described the applicant as very immature and having significant defects in his thinking and behaviour. The applicant told the author that he had purchased the firearm for his own protection and maintained that he believed it was fake. At the time of the offending, he was living at home with his mother. He had been expelled from school, had no qualifications and was not in employment or education. The applicant had completed some offence focused work in relation to knives when supervised by the Youth Offending Team. The author of the report found it concerning that he nevertheless went on to purchase the gun. She assessed him as posing a high risk of serious harm to his peers by owning and discharging a firearm. This risk could be reduced by completion of offence focused work and securing employment and training skills. In her view he currently met the criteria for dangerousness.

Dr Galappathie, a consultant forensic psychiatrist, provided a report in which he stated that at the time of the offences the applicant would have been suffering from mild depression and traits of autistic spectrum disorder. In his opinion his mild depression was likely to have clouded his judgment and impaired his problem-solving skills to a limited extent. His ASD traits would have led to him experiencing strong emotions. The psychiatrist opined that a long prison sentence would likely have an adverse impact on his mental health but that could be managed within the prison setting.

The judge also had references from the applicant's family and others that showed a different, more positive side to his character. His mother spoke of him growing up in a deprived area of Birmingham, and in his difficulty in coping with the sudden departure of his father when he was aged 10 years. This significantly impacted on his academic progress.

In his sentencing remarks the judge observed that there was a lack of evidence as to why the confrontation took place and specifically made no finding of fact about it. He found that the applicant had collected the gun from Baig's car. It was impossible, he said, to know for how long it had been there. He rejected the applicant's account that he believed it to be an imitation. He found it clear from the recorded conversation that the applicant had with a friend in prison that he knew the gun fired live ammunition. The judge observed that by chance the bullet had not damaged any major blood vessels or organs. The victim had recovered physically, but with a bullet lodged beside his spinal cord which could subsequently move around, and the long-term prognosis is not known.

The judged placed the firearms offence in category 1A of the relevant sentencing guideline. It fell within culpability A because the firearm was discharged, and the judge found it fell within harm category 1 because severe physical harm was caused. This afforded a starting point of 18 years with a range of 16 to 22 years. He found three aggravating factors in the disposal of firearm after use, the fact that the appellant had taken cannabis and his previous convictions.

The judge also placed the wounding offence within category 1A of the relevant guideline. It fell within category A culpability, as a highly dangerous weapon was used, and in harm category 1 as it caused a grave or life-threatening injury. This afforded a starting point of 12 years and a range of 10 to 16 years' custody.

The judge highlighted what he described as two important areas of mitigation. First was the applicant's age. He was only 20 years old at the time of the offending and was someone who lacked maturity. The judge further took into account Dr Galappathie's report and the references. He recognised that the applicant had experienced a difficult childhood after his father had left and the positive qualities spoken of within the references.

The judge considered that the applicant was dangerous within the meaning of the Sentencing Act 2020. He came to that conclusion by reason of the nature of the offences, which concerned not just the possession but also the use of a firearm. He did not consider that a life sentence was appropriate. However, he did not consider that a determinate sentence of 20 years' detention would fully address the risk the applicant then represented. An extended sentence was therefore required. The judge adopted the firearm offence as the lead offence and sentenced on that count to reflect the entirety of the applicant's offending in the way we have set out.

The applicant seeks leave to appeal sentence on the following grounds:

As to the first, Mr Wood, who represents the applicant on this application, although not in the court below, relies on a decision of this court in R v O'Bryan [2021] EWCA Crim 1472 concerning the categorisation of harm for offences of wounding with intent. A case falls within category 1 harm within the guideline if either particularly grave or life-threatening injury was caused, the injury results in physical or psychological harm resulting in lifelong dependency on third party care and medical treatment, or the offence results in a permanent irreversible injury or psychological condition which has a substantial and long-term effect on the victim's ability to carry out their normal day-to-day activities or on their ability to work. The court in O'Bryan gave guidance to the effect that category 1 harm is reserved for examples of exceptional seriousness even within the class of section 18 cases. Category 1 was not designed to cater for every injury which, left untreated, might lead to death. Mr Wood submits that in the instant case the victim's actual injury was never life threatening and did not even amount to grave harm. He further submits that although not concerned with firearms cases, the reasoning in O'Bryan must also apply to the sentencing guideline for the offence of possession of a firearm with intent to endanger life. To fall within category 1 harm there must have been severe physical or psychological harm caused. Category 2 caters inter alia for serious physical harm or a high risk of death or severe physical or psychological harm. Mr Wood submits the instant case clearly falls within category 2 but cannot be said to be severe. He submits that had the offences been correctly categorised, this would have resulted in a lower starting point for each offence.

As to the second ground, Mr Wood accepts that the judge was entitled to find the disposal of the gun to be an aggravating factor. He submits, however, that the applicant's previous convictions were of a totally different kind and largely irrelevant. The fact that he was under the influence of cannabis had nothing to do with the commission of the offence as required for it to fall within the definition of an 'aggravating factor' within the guidelines. He submits it could only aggravate the offence, if at all, to a minimal extent, particularly in light of the fact that the applicant discharged the gun in response to the victim getting into the car with a machete.

Mr Wood further submits that whilst mentioning the applicant's youth, immaturity, ASD traits and troubled background, the judge did not in fact reflect that in any downward adjustment. Rather, his assessment of the aggravating and mitigating factors led to an inappropriate increase to the 18-year starting point for the firearms offence when if anything there should have been a downward adjustment.

On the third ground Mr Wood contends that the conclusion of the author of the report on dangerousness was flawed in circumstances where the application of the Offender Group Reconviction Scale static risk factors identified the applicant as representing a medium not a high risk of reoffending. In any event he submits that the judge erred in relying only on the facts of the offending to find the applicant dangerous, without proper consideration whether, in light of the applicant's age, a lengthy determinate sentence would cater for any risk he might pose on eventual release. He submits it was incumbent on the judge to properly explain why an extended sentence was required, and that he had failed to do.

This applicant fell to be sentenced for extremely serious offences, for which, as is conceded, a lengthy custodial sentence was inevitable. The experienced judge had the benefit of presiding over the applicant's trial and was well placed to determine the factual basis for sentencing. No criticism is rightly made of his factual findings. For each of the offences in counts 2 and 3, the judge was plainly correct to place the applicant's culpability in the highest category. He discharged a loaded firearm at close range into the victim's chest. Culpability could hardly have been higher.

We consider there is force, however, in the submission that in categorising harm for each offence, the judge fell into error. By sheer chance the bullet did not cause particularly grave or life-threatening injury. It had not caused severe injury. As O'Bryan makes clear, when a judge is considering the issue of harm for offences of wounding with intent, he must consider the actual harm caused. In this case it was not particularly grave and/or life threatening. In our view the same reasoning must apply to the firearms offence. This means that for each offence the harm properly fell within category 2 of the guideline.

We are unpersuaded however on count 2 (the wounding with intent) that the injury was less than grave. The victim has a bullet lodged in his body next to his spine and we are of the view that this properly falls within category 2 harm.

On count 3, a categorisation in 2A afforded a starting point of 14 years' custody with a range of 11 to 17 years. On count 2 the starting point would be one of 7 years' custody with a range of 6 to 10 years.

However, the fact remains that the lack of particularly grave or severe injury was remarkable, and as we have said, by sheer chance. Shooting someone in the chest at close range carries a substantially high risk of death or at the very least extremely serious injury. This had to be reflected in the sentence imposed. Section 63 of the Sentencing Act 2020 requires a sentencing judge to have regard to harm which was caused, intended or might foreseeably have been caused. As the General guideline: overarching principles makes clear, dealing with a risk of harm involves consideration of both the likelihood of harm occurring and the extent of it if it does.

Whilst on the jury's verdict the applicant did not intend death, he must, knowing that the gun was loaded and discharging it in an enclosed space at the chest of the victim, have foreseen that death or very serious injury could have resulted. Indeed, on the jury's verdict he intended the latter. In those circumstances, and taking into account the disposal of the firearm, we consider that for each of the offences in counts 2 and 3, a sentence at the top of the category 2A range or even beyond it was justified.

The judge had then to come to a total appropriate sentence for the two offences together with the offence of the possession of the Zombie knife, taking into account totality. We consider that even had each of the offences been categorised within 2A of the relevant guideline, a custodial sentence of 20 years' imprisonment was entirely justified.

We accept that the applicant's previous convictions and use of cannabis were not significantly aggravating factors. The judge did not say that they were. However, the disposal of the firearm was.

We are unpersuaded that in reaching the term imposed the judge failed to take sufficient account of the applicant's youth. He expressly said that he did so and was ideally placed to assess his maturity having seen him give evidence at trial. Were it not for his youth, the applicant might have expected the sentence to be longer than it was. In our view the judge properly identified and balanced the aggravating and mitigating factors in coming to the appropriate custodial term.

We are equally unpersuaded that the judge erred in finding the applicant dangerous. Whilst he might have said a little more about why he did so, there was ample evidence in our view to justify such a finding. A willingness to obtain, carry and use a loaded firearm in the context of a dispute with the applicant's peers showed the applicant to be dangerous in the ways set out by the author of the pre-sentence report. The fact that he was attacked first does not detract from his possession and use of a loaded firearm which he obtained and took to the scene knowing that there was to be a confrontation later.

The judge had seen the applicant give evidence. He was able to assess the risk he posed. Notwithstanding his youth and the length of any determinate sentence, the judge was entitled on the facts of this case, in our judgment, to conclude that the applicant posed a significant risk of causing serious harm to members of the public, in particular his peers, and to impose an extended sentence accordingly.

For the reasons we have set out, and particularly in relation to the categorisation of the offences in counts 2 and 3, we consider the application for leave to appeal sentence to be arguable and we grant leave. We are not however persuaded that the lengthy sentence imposed on this appellant was manifestly excessive. It was just and proportionate for these serious offences and this appeal is accordingly dismissed.