R v Noor Ali Kayani

On 17 December 2020, following a trial in the Crown Court at Kingston Upon Thames, the applicant was convicted of wounding with intent (count 1), having a bladed article (count 3) and possession of amphetamine, a Class B controlled drug (count 5)). He had earlier pleaded guilty to possession of cannabis (count 4).

On 26 February 2021, the applicant was sentenced on count 1 to an 18 year extended sentence, comprising a custodial term of 15 years and an extended licence period of three years. Concurrent sentences were imposed for the other offences.

The applicant now applies for an extension of time of 34 days in which to renew an application for an extension of time of 1,286 days in which to apply for leave to appeal against sentence following refusal by the single judge.

We can state the background facts shortly. In June 2020 the applicant texted the complainant, Mr Rameez, accusing him of “taking” his girlfriend from him. Mr Rameez eventually agreed to meet with the applicant so that he could show the applicant his phone to prove that there had been no contact with the girlfriend. The applicant examined Mr Rameez’s phone before walking off with it. He called a woman from the phone and then handed the phone back to Mr Rameez.

As Mr Rameez was holding the phone, the applicant punched him so hard that he staggered back and briefly blacked out. When he came to, the applicant was standing over him with a nine inch machete with which he struck Mr Rameez, causing a deep laceration to his left forearm. Mr Rameez managed to escape and, by good fortune, encountered a policeman shortly after the attack. The applicant took steps to dispose of the machete and its sheath.

The applicant has 14 conviction for 24 offences over the period 2001 to 2019. They include convictions for assault with intent to resist arrest, violent disorder, affray and criminal damage. Two of those convictions are of particular significance. The offence of violent disorder in 2008 involved an attack by a group of assailants, which included the applicant, on a van. Knives, bats, a hammer and planks of wood were used in the attack. The affray in 2016 involved an attack on a female victim who was a stranger to the applicant, but who had ignored him when he blew a kiss at her from his car. He became aggressive, hit the windscreen of the complainant’s car and tried to force open the door. He followed that car to a car park where he shattered the rear window with a rock.

The judge held that the section 18 offence was a category 1 offence for sentencing guideline purposes (by reference to the guideline then in force). The attack was premeditated, given that a weapon was used and the decision to lure Mr Rameez to the applicant’s house for the purpose of attacking him. The judge found that the applicant had intended to cause more harm than was actually inflicted.

On the issue of harm, the judge found that this was a case of greater harm, given the injury sustained and the repeated nature of the assault.

On the basis of those factors, the guideline suggested a starting point of 12 years’ imprisonment, and a range of nine to 16 years.

The judge held that there were numerous aggravating factors: the applicant’s previous convictions; the attempt to conceal and to dispose of the machete; and the lasting impact on Mr Rameez. He had sustained a wound which was eight to ten centimetres in length which went through the muscles of the forearm. The attack has had a life-changing effect on him, both physically and psychologically. He had lost his ability to grip, which had seriously inhibited his work as a butcher (his chosen trade), as well as leaving him in a state of lasting anxiety. In those circumstances the judge concluded that the starting point of 12 years should be raised to 15 years, with a three year extended licence period.

In his proposed grounds of appeal the applicant submits:

In further material filed with the court, the applicant expresses remorse for the attack and points to the personal circumstances of his family, and in particular to the tragic illness of his mother, which he suggests justifies his release at this time. The applicant’s statement of his remorse and the present family difficulties are supported by a letter from another member of the family.

However, the issue for this court is whether the sentence that was imposed was manifestly excessive or wrong in principle.

We are satisfied that the applicant has not raised any arguable ground of appeal in relation to either of those matters. We take the points in turn.

If, as he now says, the applicant was intoxicated at the time of the attack, this would not be a mitigating factor, but an aggravating one, namely the commission of an offence while under the influence of drugs or alcohol. In any event, we note that in the interview for the preparation of his pre-sentence report, the applicant denied being under the influence of alcohol or drugs at the time of the attack. He stated that he had told police officers the opposite so that he could be sent to hospital and not to prison.

There is no evidence to support the alleged provocation. It was not raised in the applicant’s Defence Case Statement, nor in the interview for the preparation of the pre-sentence report, in both of which he had maintained that Mr Rameez came to the house to recover money that the applicant had borrowed from him to buy a car. The extremely late allegation is wholly incredible.

This was obviously a case of high culpability, given the significant premeditation. The applicant lured Mr Rameez to his address; he concealed the machete which he used, which was a particularly dangerous weapon. The judge, who had presided over the trial, was fully entitled to find that the applicant intended to cause more harm than was inflicted. Indeed, that was an obvious finding, given that the applicant concealed a machete and then attacked Mr Rameez with it. But for Mr Rameez’s fortunate escape, the applicant clearly intended to cause the victim further injury.

The judge was also entitled to conclude that this was a case of greater harm on the then applicable sentencing guidelines. He relied upon the severity of the injuries and the fact that this was a sustained or repeated assault on the same victim. The judge was entitled to reach the conclusion that the second factor was present. The applicant had briefly knocked Mr Rameez unconscious, then stood over him and slashed him with a machete. But in any event the extent of Mr Rameez’s injuries were sufficient to make this a case of greater harm. The applicant’s attempt to deny the severity of the injury flies in the face of both the medical evidence and the lasting effects on Mr Rameez.

Finally, the judge was also fully entitled to place weight on the applicant’s two earlier convictions for violence, both of which had similarities with this offence. The first involved a premeditated attack with weapons; the second, a violent and wholly unprovoked attack on someone not known to the applicant.

For those reasons we would have refused the renewed application for leave to appeal. But, in any event, no satisfactory explanation has been offered for the very lengthy delay in seeking to renew the application for leave. In the absence of such an explanation, we also refuse the application for an extension of time.