R v Tejean Kennedy

On 30 November 2023 in the Central Criminal Court before HHJ Whitehouse, the Applicant (then aged 33) was convicted of two counts of kidnapping, two counts of false imprisonment and an offence of manslaughter as an alternative to murder. On 12 December 2023, before the same Judge, he was sentenced to 8 years' imprisonment on each count of kidnapping and 10 years' imprisonment on each count of false imprisonment. The sentences were ordered to run concurrently to each other and to the sentence imposed in relation to the offence of manslaughter for which he received an extended sentence of 20 years comprising a custodial term of 18 years with an extension of 2 years. Six co-defendants were sentenced at the same time.

The Applicant renews his application for leave to appeal against sentence after refusal by the Single Judge. Leave was initially sought on two grounds. First, that the Sentencing Judge should not have sentenced the Applicant as a dangerous offender underthe provisions of the Criminal Justice Act 2003, and secondly, that there was a disparity between the sentence imposed on him and one of his co-defendants, Ali Kavak.

Mr Scobie KC, before us this morning, has realistically withdrawn the second of those grounds, which related to the asserted disparity in sentence. His submissions therefore concentrated on the question of the Judge's approach to dangerousness. The Applicant invites the Court to grant leave, quash the extended sentence and substitute a determinate sentence commensurate with the Applicant's culpability and the role he played.

We turn then to the facts of the offences. On the evening of 13 October 2022, the victim, Mehmet Koray Alpergin, a well-known Turkish language radio station owner and DJ and his then girlfriend, Gozde Dalbudak, returned to Mr Alpergin's home in Enfield after dinner in Mayfair. Mr Alpergin stepped out of his Audi at around 10.25 pm. He was confronted by a man quickly followed by several others. Although he attempted to flee, he was caught, overpowered and forced into a waiting white Fiat Doblo van. A bloodstained fragment of his shirt recovered later at the scene showed that he had resisted but had been outnumbered. Ms Dalbudak, who remained in the Audi, heard the struggle. A masked man armed with a knife approached her and told her to remain quiet and escorted her to the same van. Both victims were forced into the back where Ms Dalbudak later described the men sitting on top of them as the van drove off.

The prosecution case was that nine men travelled to the scene in three vehicles arriving around 10.00 pm and lying in wait. The group had been together earlier at a cafe in South Tottenham. Their presence was not coincidental. One member of the group had placed a tracking device on Mr Alpergin's car enabling them to follow him from Mayfair back to Enfield.

After the kidnapping the convoy returned to Tottenham. By 10.40 pm the white van had been driven into an alleyway off Whitehart Lane leading to the Stadium Lounge, an empty wine bar and restaurant on Tottenham High Road. It was inside these premises that Mr Alpergin was killed having been extensively and brutally tortured. Ms Dalbudak was detained inside a lavatory at the Stadium Lounge for nearly two days before being released on the afternoon of 15 October.

Following his death, Mr Alpergin's body was moved in a Volkswagen Polo to storage units rented by the sixth defendant on the Triumph Trading Estate. During the 14 October the body was transferred to a Renault Megane. In the early hours of 15 October the Megane was driven to Loughton in Essex, where Mr Alpergin's naked body was dumped in woodland. It was discovered later that morning by a dog walker.

The postmortem revealed 94 separate injuries. Mr Alpergin had been stripped naked and then subject to prolonged assaults. His injuries included extensive bruising and cuts, a severe head injury causing brain damage, neck injuries consistent with ligature strangulation, 14 rib fractures, injuries consistent with the use of a baseball bat, scalding with boiling water, stabbing to the soles of his feet, genital injuries and a rectal tear consistent with penetration by an object. The evidence indicated that multiple attackers inflicted these injuries over a period of hours before Mr Alpergin finally succumbed.

The prosecution alleged that the purpose of the kidnapping and torture was either to punish him or to extract information most likely concerning drugs or money given the organised nature of the operation, the number of participants, the use of false number plates and the subsequent burning of both the Fiat and the Renault after they had been used. There was no ransom demand, and the plan carried considerable risk suggesting a targeted operation rather than an opportunistic attack. The prosecution therefore contended that the offences were connected to serious organised crime.

We turn then to the ground of appeal which was pursued before us in the renewed application for permission. It was submitted that it was arguable that the Judge wrongly concluded that the Applicant posed a significant risk of serious harm for the purposes of section 308 of the Sentencing Code and therefore erred in imposing an extended sentence. The Applicant, it was pointed out, has only one conviction for violence committed as a juvenile in 2007. The Judge expressly stated that she did not regard the Applicant's previous convictions as significantly aggravating but yet, it was said, relied upon them to support a finding of dangerousness. The Applicant was acquitted of murder. By necessary implication the jury were not satisfied that he intended to cause really serious harm nor that he participated in the infliction of the fatal injuries. The Judge, it was said, relied on "what I heard about him during the trial", much of which, it was said, derived from the evidence of the co-accused, Kavak; an account the jury plainly rejected as reflected in their verdicts. The Applicant's conduct and associations were, it was argued, no different in nature from those co-accused who was not found to be dangerous. All had concealed their identities and were associated with the organising group. All had engaged in behaviour connected with drug offending.

Mr Scobie said that the attempts to conceal identities were in a sense standard behaviour and no more than what might be expected in offending of his type. The requirement for a finding of dangerousness, he pointed out, is of a significant risk of serious harm and this threshold, he submitted had not been crossed. His written submissions referred to the case of R v Lang [2006] 2 Cr App R Cr App R(S) 3 and R v Pedley [2009] EWCA Crim 840. He argued that dangerousness should take into account the risk at the time of release following a determinate sentence. He pointed out that the Applicant would be released in his 50s, significantly reducing any realistic prospect of further serious offending.

It was suggested in the written submissions that the Judge may have been influenced by the horrific injuries suffered by the deceased in circumstances where the jury's verdict, accepting that the Applicant neither inflicted nor intended such injuries precludes reliance on that harm to establish dangerousness. Accordingly, it was submitted that it was arguable that the criteria for an extended sentence were not satisfied.

In the course of her careful sentencing remarks the Judge considered and set out her conclusions as to the significance of the Applicant's antecedents, the application of the dangerousness criteria and the participation which she relied upon in the offending to reach the conclusion that he was to be considered as dangerous. She said:

The Judge's conclusion that the Applicant met the statutory criteria for dangerousness under section 308 of the Sentencing Code was in our view plainly open to her on the evidence. The sentence imposed did not involve any misdirection or misapplication of principle or reliance on irrelevant matters. The sentence of 18 years was not argued to be, in itself, manifestly excessive. The submissions were directed entirely to the extended sentence. The offences form part of an organised carefully planned criminal operation, involving multiple offenders, disguised identities, the use of trackers, prearranged premises, multiple vehicles and the co-ordinated movement of both victims. The Applicant's role included changing clothes and concealing his identity, leaving his phone at home and employing a temporary handset, direct involvement in the violent abduction, participating in the unlawful imprisonment of both victims over a prolonged period and doing so within the context of acknowledged drugs supply. These circumstances were, in our view, properly regarded as demonstrating serious organisation capability, criminal sophistication and willingness to engage in high risk offending all relevant to the dangerousness assessment.

Dangerousness is a personal assessment. The fact that other defendants did not meet the threshold does not impact the assessment made in respect of this Applicant, whose conduct and background differed materially. The Judge was entitled to regard the Applicant as having a more embedded connection with criminality, including drugs supply and to treat the steps taken to disguise himself and avoid identification as indicative of risk. The Judge explicitly considered the relevant factors identified in Lang,including the nature and circumstances of the instant offences, the Applicant's antecedents, his association with high risk criminal activity, the organised nature of the offending and evidence of planning and preparation. Her reasoning, in our view, demonstrates no misapplication of the test. She did not equate the Applicant's involvement with infliction of the fatal injuries, rather she treated his role and conduct as suggesting a propensity to engage in serious organised violence which is a legitimate factor in assessing future risk. The Judge was entitled to conclude that risk would remain at the point of release. The Applicant's age does not preclude future dangerousness particularly where the offending reflects entrenched criminal behaviour and association with organised groups.

As this Court observed in R v Howlett [2019] EWCA Crim 1224:

The sentence imposed was, we conclude, within the proper range founded on a correct application of the relevant guidelines and the statutory framework. The ground relied on discloses no arguable error of principle and no sentence that can be described as manifestly excessive. The Judge's approach to dangerousness was not one which can sensibly or arguably be criticised. We therefore refuse the renewed application for leave to appeal. We are however most grateful for Mr Scobies focused and succinct submissions this morning.