Case No:
201504646 C3
201504672 C3
Neutral Citation Number:
[2016] EWCA Crim 1517
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
Central Criminal Court
HHJ Hone QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
20/10/2016
Before :
LORD JUSTICE SIMON
MR JUSTICE GREEN
and
HIS HONOUR JUDGE AUBREY QC (SITTING AS A JUDGE OF THE CACD)
- - - - - - - - - - - - - - - - - - - - -
Between :
R
Respondent
- and -
Nelson (1)
Shaibu (2)
Appellants
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
J Polnay
for the
Crown
P Mostyn
for the
First Appellant
N Wrack
for the
Second Appellant
Hearing dates: 6
th
October 2016
- - - - - - - - - - - - - - - - - - - - -
Judgment
Mr Justice Green :
A. Introduction: the appeals
1.
Scott Nelson and Mubarak Shaibu appeal against sentence by leave of the Single Judge. Nelson also renews his application for leave to appeal conviction limited to a single ground which raises a point of some wider significance in relation to the propriety of permitting overlapping charges to be left to the jury.
B. Shaibu
(i) The facts in the case of Shaibu
2.
The facts arise out of gang rivalry between two groups of young men in Hackney, London. These were the “A Road” and the “Pembury Boys”. A community impact statement before the trial judge, for purpose of sentence, lists in detail the violent history of relations between the gangs. This involved the infliction of serious injuries, shootings, knifings and fatalities. The trigger for the incident on the 5
th
April 2014, which gave rise to the trial, was a stabbing on the previous day. On that occasion Carlon Smith, who was a member of the A Road gang, was in a fast food shop in Amhurst Road. Three young men from the Pembury Boys gang launched an attack upon him. A knife lodged in his head entering through his eye and going through the palate of his mouth. He is now entirely blind in the affected eye. The attackers were later tried for attempted murder and convicted by the jury of causing grievous bodily harm with intent. They received lengthy custodial sentences of 12-15 years depending upon their role.
3.
The A Road gang however decided in the immediate aftermath of the attack on Carlon Smith to take revenge for the attack. The evening of the day following the attack the Appellant Shaibu together with another male therefore set off on push bikes into the Pembury Estate. They deliberately camouflaged the bikes in black tape to disguise their provenance and make identification more difficult. Their heads were covered and they wore scarves to conceal their identities. The police, however, were acutely aware of the risk of a revenge attack and were on a state of high alert. Two officers saw the Appellant with his accomplice cycle into the Pembury Estate. The Appellant saw three young men from the Penbury Boys. The Appellant approached and reached into his waistband and tried to pull out an object which was in fact a scorpion machine gun. However, the gun became stuck and the Appellant lost his balance falling off the bike. He then ran off. The police officers reported what they had seen on the radio and they gave chase. However they lost sight of the Appellant in the direction of a nearby park, Hackney Downs.
4.
That same evening PCSO Tozzi was on duty in the Amhurst area estate, the other side of Hackney Downs. Over his radio he received information that the Appellant was making off in the direction of the Downs. He went towards the park. He was on a police bicycle that was lit. He was wearing a high visibility reflective jacket and he was in full uniform. He saw the Appellant running towards him very rapidly, wearing a hat and scarf around his neck. The officer stopped his bicycle and put his right hand up shouting at the Appellant to stop. The Appellant did not stop but continued to run towards him. As he approached the Appellant reached into his trousers and pulled out the scorpion machine gun and fired. The account of PCSO Tozzi was not challenged. His evidence was that at the point in time that he first saw the Appellant he was 20 metres away. However, at the point in time when the Appellant fired at him he was approximately 2 metres away. There was a loud bang, smoke and mist which came from the machine gun being held by the Appellant. It took a couple of seconds before PCSO Tozzi realised that he had been shot at. In due course a single shell casing was found at precisely that point. PSCO Tozzi was not, fortunately, injured. He reported over his radio that shots had been fired and he then, with conspicuous bravery, pursued the Appellant.
5.
PCSO Tozzi was told to cease the pursuit over the radio but nonetheless he did not wish to lose contact with the Appellant so continued. He followed the Appellant into Eastdown House and reported the precise location of the Appellant to his colleagues. Police surrounded the premises. The police called for the occupants to come out and they all did. However the Appellant delayed his departure from the premises and the prosecution argued, without demur from the Appellant, that attempts had been made to dispose of inculpatory evidence. The Appellant came out wearing flip-flops. He was not wearing a hat. He had disposed of his mobile telephone. At the police station he was interviewed and answered no comment to all questions. Gun shot residue samples were taken from the Appellant. Residue was detected on the Appellant’s left hand, right hand and face. There were 11 confirmed type 5 particles upon his face and 6 type 5 particles upon his right hand.
6.
In due course the Appellant pleaded guilty to a charge of possessing a fire arm with intent to endanger life contrary to
section 16 of the Firearms Act 1968
. This carries a maximum sentence of life imprisonment. The Appellant pleaded not guilty to a further count of attempted murder which was ordered to remain on the file in the usual terms.
7.
It is of some significance that the version of events already described was not challenged by the Appellant. In the course of mitigation it was accepted that the plea of guilty at a plea and case management hearing was not the first occasion at which a plea cold have been tendered and that it attracted a maximum discount of only 25%. It was also accepted that the machine gun was discharged at a distance of 2 metres. It was, however, contended that the intention of the Appellant was to terrify, but not injure. It was argued that the gun was capable of automatic and semi-automatic gunfire but only a single bullet had been discharged. In this context it was submitted that it was hard to see how the Appellant could have missed had he intended to hit the officer. The Judge responded that such machine guns were not easy to handle and that many cases involved near misses.
8.
The Appellant has five convictions for 13 offences. In February 2012 he was sentenced to 2 years imprisonment for the supply of Class A drugs. In December 2012 he was also sentenced to 12 weeks custody for possession of an offensive weapon. On the 4
th
February 2015 he was sentenced to 67 months imprisonment for possession of controlled drugs with intent to supply. The present offence took place whilst on bail for this latter matter.
9.
Those are the salient facts which have given rise to the present appeal.
(ii) The Judge’s sentencing remarks
10.
In passing sentence the Judge identified the following as relevant considerations. First, the Appellant was a trusted member of the A Road gang and by reason of his age was one of the elders in the gang. Second, the gang entrusted him with the scorpion sub machine gun. Third, the Appellant was one of a pair of gang members who entered the Pembury Estate and who approached three youths whom they believed were Pembury Boys and the Appellant was seen to reach into his waistband to attempt to draw out the machine gun. The three Pembury Boys ran off but the Appellant pursued them. Fourth, the Appellant then sought to evade police when he encountered PSCO Tozzi who saw the Appellant point the sub machine gun at him. Fifth, the officer was wearing police uniform and a high visibility jacket so the Appellant
“must have known he was a police officer”.
Sixth, the Appellant fired a single shot at him at a range of 2 metres and then ran past the officer who pursued the Appellant. Seventh, the Appellant then handed the sub machine gun to a fellow gang member who hid it in the fifth floor loft space which was situated some distance around the balcony of the flats by the lift and communal stairs and was accessed by a ladder. Eighth, the Appellant was one of the last to leave the flat when police called for all of the occupants to come out and he spent the time concealing incriminating items. Ninth, the Appellant gave a no comment interview to the police and it was only shortly prior to the PCMH that he pleaded guilty to the offence of possessing a firearm with intent to endanger life.
11.
In these circumstances the Judge considered whether the Appellant was to be considered a “
dangerous
” offender. The Judge concluded that anyone who behaved as the Appellant had done was to be categorised as posing a significant risk of serious harm to members of the public from the commission of other violent offences. The Judge concluded that his previous convictions supported that finding.
12.
The Judge held that a discretionary life sentence was not necessary but he did conclude that an extended sentence should be imposed. The particular aspects of the facts which were treated as aggravating included the Applicant’s previous bad character, that the sub machine gun was particularly dangerous capable of automatic fire and there were, at the relevant time, 34 rounds of ammunition in the magazine. Such a weapon is treated as “
the most prized possession of a drug running gang and far superior to a hand gun
”. Next the Judge treated as a serious aggravating factor the discharging of the weapon at an unarmed PCSO in high visibility uniform in a public park where members of the public would be likely to be walking.
13.
These were the factors that led the Judge to conclude that a starting point of 30 years imprisonment was appropriate. The Judge gave credit of 20% for the late plea which reduced the sentence to 24 years imprisonment. Because the Judge concluded that the Appellant was a dangerous offender he was required to serve two thirds of that term, namely 16 years in custody.
14.
The Judge accepted a submission from counsel for the Appellant by way of mitigation that the sentence should run concurrently with the 67 month sentence that the Appellant had just started serving. However the Appellant would not be released until the Parole Board determine that he was no longer a danger to the public. The Judge then fixed an extended licence term of 3 years.
(iii) Grounds of appeal against sentence
15.
The Appellant now argues that the sentence was manifestly excessive because the starting point of 30 years was too high as evidenced by various illustrative authorities which were cited to the Court and that insufficient credit was given for his guilty plea. A number of particular evidential points are made. First, it is submitted that although the Judge did not specifically state that the Appellant went to the Pembury Estate with an intent to kill this was clearly the import of his comments. He also found that the Appellant must have known that Tozzi was a PCSO because of his police uniform and high visibility jacket. These propositions are challenged as unfounded on the evidence.
(iv) Conclusion
16.
We turn now to our conclusions. They boil down, in our view, to an assessment of totality. We start with the particulars factual objections. As to the first of these the Judge did not in fact state that the Appellant went to the Pembury Estate with an intent to kill a member of the rival gang; he simply describes the facts without imputing intent. The same goes for his conclusions about the discharge of the weapon at PCSO Tozzi. In relation to this latter incident the undisputed fact was that the Appellant was approximately 2 metres from the officer when he fired the machine gun. It is also undisputed that the officer was wearing a uniform and a high visibility jacket. Nonetheless the Judge does not say that the weapon was discharged with an intent to kill. He simply describes the facts as they were presented to him. These included that the Appellant pointed the sub machine gun at the officer and that he fired a single shot at him at a range of 2 metres which missed. The Judge leaves open the question as to whether there was an intent to kill or to terrify. It must be recalled that the charge was possession of a weapon
with intent to endanger life
and in this context the Judge’s observations in relation to both incidents were entirely apposite. The argument now advanced in our view reads far too much into the judge’s actual sentencing remarks and ignores the context of the charge for which the applicant was indicted. We can identify no error on the part of the Judge in his approach to the evidence in this respect.
17.
Second, it is said that insufficient credit was accorded to the Appellant for his guilty plea. In the course of submissions, as already observed, it was accepted that the Appellant had not pleaded guilty at the earliest stage and that he was not entitled to full credit. It appears from the argument prior to sentence that there was no dispute but that a discount of 25% was warranted and that, indeed, was consistent with the Guidelines. It is now submitted that given the grave nature of the counts on the indictment and the delay that occurred in charging together with the Defendant’s age and the importance of him receiving proper advice upon the nature of the charges and the law the Defendant was entitled to full credit for his plea or at least to 30%. In our view the Judge was within the realms of his sentencing discretion not to give more than the standard 25% set out in the Guidelines. If he wished however to give
less
than this ideally he would have explained why this was justified. In the event we cannot see from the Judge’s sentencing remarks why he declined to give 25% discount. We observe that by using 20% in the context of an extended sentence he was ultimately able to arrive at a sentence of 16 years whereas a discount of 25% would have created mathematical difficulties. We accept that had he given 25% and then, when considering totality, modified his final sentence to arrive at a rounded figure (the 16 years) which implied something less than 20% but which was nonetheless justified and proper in terms of totality that would have been acceptable; but it would have been preferable to have explicitly recorded this approach in his remarks. For reasons we set out below we consider that this case needs to be examined carefully from the perspective of totality and hence this objection is wrapped up in that analysis.
18.
Third, it is submitted that the starting point of 30 years adopted by the Judge was manifestly excessive in the light of various authorities which it is said are analogous and where lower sentences were passed. We have reviewed these authorities carefully. The facts each case is very different to those of the present case. We have not obtained significant assistance from them. This case has to be judged upon its particular facts.
19.
We turn to totality. The following factors need to be borne in mind.
20.
First, the appellant pleaded guilty to possession with an intent to endanger life. This offence involves proof that the defendant intended to behave in such a way that to the defendant’s knowledge life was
in fact
endangered. The offence also implies a willingness to use the weapon should the need arise. However it is not in law necessary to establish a specific intent to kill: See the analysis and citation of case law in: Archbold (2016) page 2387 paragraph 24-54; and, Blackstone (2016) page [763] paragraph [B12.91]. The plea of guilty thus encompasses within it an acceptance that, at the least, the appellant was aware that his conduct could lead to death and a preparedness to accept that end result. There are two incidents in which this is relevant. First, the plan to extract revenge for the violent attack on his fellow gang member. As to this the Appellant was seen seeking to withdraw the machine gun as he approached three young men believed to be part of the rival gang. The only sensible inference to be drawn is that armed with a machine gun loaded with 34 rounds of ammunition he intended not just to terrify the men but to injure them using the weapon. He must at least have known that death was a possibility had he succeeded in using the weapon. The second incident concerns the police officer towards whom from very close range he discharged the weapon. The risk of death was palpable.
21.
Second, the fact the appellant was prepared to discharge the weapon at close quarters against a serving uniformed officer is also relevant. The officer was on duty and acting in the public interest. We are quite sure that the Appellant was fully aware of the identity of the officer. Yet he was not deterred from endangering the life of a PCSO carrying out his duties.
22.
Third, the weapon was of a very sophisticated nature. It had massive lethal potential. It could fire on an automatic and semi-automatic basis. There were 34 rounds of ammunition in the gun when it was recovered and it is a proper (and unchallenged) inference that this was the ammunition which had been loaded into the weapon
before
the Appellant embarked upon the revenge attempt.
23.
Fourth, the weapon was used as part of an attempt to evade justice in a public place (the park) where members of the public could have been injured.
24.
These factors make the offence very serious, justifying a recondite sentence; and the Courts must necessarily view such offending as very grave indeed.
25.
It is worth bearing in mind that had the officer been killed the mandatory statutory sentence would have been life imprisonment with a starting point of 30 years as the minimum term and with the fact that it was a police officer that had been murdered being a material aggravating factor. A life sentence with an actual minimum term of significantly in excess of 30 years could have been expected. Had there been multiple deaths arising then substantially longer minimum term would have followed.
26.
There are however some significant mitigating circumstances. First, and importantly, no one was actually harmed. Second, in relation to the officer only a single casement was found suggesting that the appellant used the machine gun in a manner which did not engage the automatic repeat firing capability of the weapon. Counsel for the Appellant during the sentencing hearing also argued that an appropriate way in which to reflect mitigation (which included the Appellant’s personal circumstances though it was recognised this did not in fact provide much by way of mitigation) was to make the sentence concurrent with the sentence of 67 months that the Appellant had just embarked upon. The Judge did just that. Whilst the Judge considered the Appellant to be “
dangerous
” he did not impose a discretionary life sentence.
27.
We therefore have to stand back and ask whether the sentence of 16 years before an application for parole can be applied for (with an extended licence period) was manifestly excessive? When we examine this case from the perspective of totality we consider that it was a proper sentence and was within the discretion of the judge to impose. We so conclude notwithstanding the point we have made about credit for the guilty plea at paragraph [17] above. For these reasons we dismiss the appeal in the case of Shaibu.
C. Nelson
(i) The appeal in the case of Nelson: Facts
28.
We turn now to the position of the second Appellant, Scott Nelson. The case against Nelson is based upon the same facts as those relating to Shaibu. Nelson was charged with assisting an offender and possession of a prohibited firearm. He was sentenced to 4 years imprisonment for assisting Shaibu and 8 years imprisonment for possession of a prohibited firearm, leading to a total sentence of 12 years imprisonment.
29.
Nelson pleaded not guilty but was convicted by a jury. The prosecution case against Nelson was that he was now 27 years of age and one of the elders of the A Road gang. He controlled a number of other gang members as drug runners. Following the shooting incident Nelson hid the gun in the loft where it was found six months later. In so doing he had taken possession of the firearm and assisted Shaibu. To prove its case the Crown relied upon a pair of latex gloves found outside the flat concealed behind some washing. The Crown case was that the gloves had been used to handle the gun because a high concentration of Type 5 GSR was found on the outside and inside of the glove and a full DNA profile matched that of Nelson. Further, fibres from the insulating material in the loft in which the gun was concealed were found on the soles of Nelson’s shoes. A small concentration of Type 5 GSR was also found upon the right hand of Nelson. Nelson’s account as to Shaibu’s activity when he returned to the flat was said to be false and incredible. Nelson’s DNA was found on the tape used to disguise the bikes that were ridden by Shaibu and the second male when they entered the Pembury Estate. Finally the Crown relied upon the circumstances of the arrest including the fact that Nelson was the last to leave the flat and, it was inferred, participated in the exercise in concealing and disposing of evidence.
30.
In evidence in the course of the trial Nelson accepted association with various other implicated individuals but denied being part of a gang. He explained his presence at the premises as, in effect, coincidence. He said that the scientific forensic evidence was explained as the product of innocent transfer or innocent association. He denied hiding the gun in the loft. His account was rejected by the jury and he was convicted.
31.
In passing sentence the Judge concluded that Nelson was one of the elders of the gang and controlled a number of other drug runners. He had 15 previous convictions though they were not of the same degree of severity as those of Shaibu. The Judge did not find Nelson to be dangerous. However he said that his culpability in the case was at a “
very high level and you knew well that the sub machine gun had been put to active use
”. In passing sentence the Judge explained that he had reduced the sentence on count two to reflect the totality of the offending. He considered that the total of 12 years imprisonment was proportionate to the culpability and the harm caused. These were very serious offences and Nelson played a leading role.
(ii) Grounds of appeal
32.
It is now argued that the Judge erred in law in failing to direct the jury to consider the two counts as alternatives when they arose out of a single transaction. This error rendered the verdict unsafe. The Single Judge refused permission. This ground is now renewed. It is also argued that the Judge was wrong to impose a consecutive sentence as the two offences arose out of precisely the same transaction and the sentence is thereby manifestly excessive. The Single Judge granted permission on this ground. We start with the challenge to the conviction.
(iii) The conviction challenge: Overlapping charges
33.
The relationship between charges which overlap has been considered on a number of occasions. In the present case Mr Mostyn for the Appellant cited the judgment of Lord Edmund Davies in
R v John Harris
(1969) 53 Cr App.R 376. In that case the defendant was charged with buggery and indecent assault on a boy aged 14. The Defendant was sentenced to concurrent terms of seven and five years’ imprisonment. It is plain from the explanation of the facts that the two charges covered exactly the same factual ground. The Court observed that the defendant was “…
convicted not only on the full charge but also on the lesser (though still grave) charge of indecent assault upon the same boy … in relation to the same incident
”. The facts giving rise to the indecent assault were the same as those giving rise to the indecent assault. It was in this context that Lord Edmund Davies LJ made the statement that is now relied upon:
“It does not seem to this Court right or desirable that one and the same incident should be made the subject of distinct charges so that hereafter it may appear to those not familiar with the circumstances that two entirely separate offences were committed. Were this permitted generally, a single offence cold frequently give rise to a multiplicity of charges and great unfairness could ensure. We accordingly allow the application for leave to appeal against the conviction of indecent assault, which really merges into the conviction of the greater charge.”
34.
Mr Mostyn argued before us that this was a statement of general significance and application and was applicable to the present case since there was overlap between the possession and the assisting charges. We do not read
Harris
in this way. The observations of general significance relied upon in
Harris
were in the context of a case where the
full
extent of the criminal activity was capable of being covered by either offence charged. This is why the charge of indecent assault was said to “
merge
” with that of buggery and why it was also described as a “
lesser
” offence relative to the “
full charge
”. This case does not however indicate what approach should be adopted when the conduct said to be criminal spans two different charges and where the totality of the alleged criminal conduct is not covered by either charge.
35.
The logic of the appellant’s argument is that the prosecution should have been forced to elect between the two charges. But this would have been highly problematic and unsatisfactory. If the prosecution had been forced to charge only possession of the firearm then no evidence would have been tendered during the trial to show any of the unrelated ingredients relevant to assisting and when it came to sentence real difficulties could have been anticipated if the possibility of the motivation of the possession (viz., to assist an offender) was raised as an aggravating factor in relation to sentence. No doubt, in such circumstances, the defence would have said that the defendant had not been charged with assisting, that no evidence had been tendered upon the issue in the course of the trial, and that it was therefore wrong to impose a sentence which took that into account and these were not matters the judge could in any event be
sure
about.
36.
Equally, if the charge had only been assisting an offender then even if the evidence had included the possession of a weapon then the Court could not have sentenced the defendant upon the basis that he had also committed an offence of possession, being the graver offence. Where a firearm is held because it is part of an exercise in helping an offender to escape justice the possession element could properly be said to amount to a serious aggravating matter in setting a sentence for assisting. A sentence in
excess
of 7 years would be entirely appropriate. But if
only
assisting is charged then the maximum sentence is 7 years. In this situation Parliament’s purpose and intent would be thwarted by the analysis proposed to us in this case.
37.
In our judgment the proper analysis is that it is only if
each
of the charges covers the whole (or very substantially the whole such that any differences were
de minimis
) of the criminality alleged that it is undesirable then to leave both counts to the jury. That is the vice that the Court of Appeal was driving at in
Harris
(
ibid
). That is not the case here.
38.
Our conclusion is supported by a number of recent authorities. Most recently a three judge Divisional Court in
Henderson v CPS
[2016] EWHC 464 (Simon LJ, Cooke and Leggatt JJ) at paragraphs [11] and [16] cited with approval the judgment in
R (Dyer) v. Watford Magistrates Court
[2013] EWHC 547 (Admin)
. There, the Divisional Court (Laws LJ and Hickinbottom J) took the view that a person should not be subjected to a double conviction for a “
single wrong
”. In that case the claimant had been convicted of both an underlying offence contrary to
section 4 of the Public Order Act 1986
and the racially aggravated offence contrary to
section 31(1) of the Crime and Disorder Act 1998
where the charges arose out of the same facts. Laws LJ stated:
“11. … This claimant stands convicted twice for a single wrong. That is unfair and disproportionate. It is not a matter of being punished twice. The double conviction is of itself unfair. It must be basic to our system of criminal justice that a person's criminal record should reflect what he has done, no more and no less. That is fair and proportionate. To convict him twice for a single wrong offends this basic rule. These two offences were charged as alternatives but they have been treated as if they were cumulative. This is a practice which infringes the basic rule which I have described. The practice in the Crown Court is, or, if it is not, it should be, conformable with this approach.
12. The right course in circumstances like these is for the court to adjourn the lesser charge at the end of the trial but before conviction. In the event of a successful appeal relating to the aggravated offence, and that appeal succeeding on the footing that the aggravating element was not made out, a conviction on the lesser offence might thereafter properly be recorded against the defendant. Mr Leonard for the Crown Prosecution Service submitted that there may be practical difficulties in such a course; but no practical difficulty must be allowed to override a basic requirement of justice - namely that a person should be convicted once for one wrong.”
39.
Hickinbottom J expressed himself in the following terms:
“14. I agree. It seems to me to be repugnant to justice and not the law of this jurisdiction for a defendant to be found guilty of two offences arising from the same facts, where one offence contains all the elements of the other, together with an additional or aggravating element. That repugnance is the greater because, in the Magistrates' Court, any potential injustice following a successful appeal against a conviction of the larger offence relied upon by the Crown before us, can be eliminated in practice by the trial court giving no verdict on the lesser alternative and adjourning the lesser charge
sine die
under
section 10 of Magistrates' Courts Act 1980
, so that that charge can be brought back, if appropriate, after a successful appeal.”
40.
The gravamen of the objection was that the second count contained “
all the elements of the other
”. The Court of Appeal (Criminal Division) considered the issue in
R v. Akhtar
[2015] EWCA Crim 176
. The issue there arose from the procedural consequences of taking a verdict on count 2 (possession of an offensive weapon) and ordering a retrial on count 1 (the more serious offence of possession with intent to cause damage). The Court focused upon whether the two counts were “
true alternatives
” and whether they were “
mutually exclusive alternatives
”. They cited the observation of Hughes LJ in
R v
Bayode EWCA
Crim 356
at paragraph [33]:
“… whether there is one count or two, there cannot be convictions for both offences which are properly mutually exclusive alternatives. If there were two counts and no plea of guilty, the jury would try the defendant on both, but would not be permitted to return verdicts of guilty on more than one.”
41.
It is right to record that there are other authorities which suggest that where two alternative counts have been charged this is not wrong in principle
provided
that the Court either adjourns the lesser charge or sentences only on the basis of one charge:
R (CPS) v. Blaydon Youth Court
[2004] EWHC 2296 (Admin)
. The more recent position as laid down by the Court of Appeal and approved of in Divisional Court judgments however is that
in principle
only one of two genuine alternatives should be charged. We agree with this approach.
42.
In our judgment the two charges in the present case are not true alternatives and nor are they mutually exclusive. They do not overlap in terms of their ingredients. In relation to count one (assisting), before they could convict, the jury had to be sure that Nelson knew or believed Shaibu had put the sub machine gun to active use; that Nelson assisted in the concealment of the gun; and that he did so with intent to impede the apprehension or prosecution of Shaibu. Possession, whilst an evidential ingredient, is not a legal ingredient. Indeed the entire offence could have been committed without Nelson physically possessing the weapon at all. However, all that was required in relation to count two (possession of a firearm) was proof of possession of the gun. Each offence thus comprises different legal elements. The elements inherent in assisting an offender are not subsumed into the charge of possession, they are not “
merged
” one into the other; they are not “
mutually exclusive
”. Further, the maximum sentences for both counts are different reflecting their quite different natures. For assisting an offender the maximum is 7 years and for possession of a prohibited firearm the maximum is 10 years.
43.
This is nonetheless a case where, on the given facts, there is
some
degree of
evidential
overlap between the two different charges. What this means is that it is correct in principle to charge both but, crucially, when convicted on both, it is imperative that the Court is fully cognizant of both the actual degree of overlap arising on the evidence and the differences in sentencing regimes. This is an issue we return to in relation to the analysis of the appeal against sentence. However for these reasons we reject the submission that the Judge erred and the conviction was unsafe because the Judge left the two counts to the jury rather than treating them as alternatives. For this reason the renewed application for permission on this ground against conviction does not succeed.
(iv) Nelson: Appeal against sentence
44.
We turn now to the appeal against sentence. Whilst we accept that the two offences are not the same in law and are not alternatives, we do accept that on the facts they may overlap to a material degree and that in such circumstances it is important to avoid double counting and to ensure that the sentence imposed is proper in terms of totality. In this case the judge did look at totality. His view was that 12 years was appropriate when considering the facts overall. We therefore have to consider whether 12 years is manifestly excessive.
45.
The exact reasons which led the Judge to choose the 12 year sentence are not clear to us. It follows from the logic of our conclusion about overlapping charges that when two charges have some (more than
de minimis
) degree of
evidential
overlap it is important (a) to consider the actual degree of overlap
and
(b) to consider the total sentence imposed against the respective statutory maximums.
46.
We accept that
in principle
in an appropriate case it is not wrong to impose a sentence which exceeds the maximum for the highest of the offences charged (here 10 years). But where this happens we would expect to see some explanation of exactly which facts and/or other considerations justified this course. In this case the total sentence of 12 years exceeded the maximum for possession of a firearm by 2 years and the maximum for assisting an offender by 5 years. We see force in counsel’s submission that the possession and the assisting are interlinked on the facts of this case and even if (to test the argument) this case was treated as an aggravated and serious case of possession (to take account of the concealment of the weapon to assist an offender) the sentence should have fallen short of the maximum 10 years custody. There is no doubt but that the offending was indeed grave; but it is possible to imagine many much worse scenarios, for instance when the weapons caused actual injury or even death or was proven to have been used in repeated violent criminality over a long period.
47.
With respect to the judge, who we recognise was undoubtedly faced with a difficult sentencing exercise and who did not have the significant benefit of the far more detailed argument and analysis that we have had, in our judgment the sentence was manifestly excessive.
48.
We consider that a total sentence of 9 years was the proper sentence bearing in mind the seriousness of the offending but also the degree of overlap between the two counts and having regard to the statutory maximums. To this extent we allow the appeal against sentence and substitute for the sentence of 12 years one of 9 years. There are a number of ways in which the sentence could have been expressed. We consider that a straightforward way that reflects the differences in the two offences by the imposition of consecutive sentences (which thereby reflects the existence of two convictions) is to impose a sentence of 5 years for the possession of the firearm and 4 years for the assisting of an offender consecutive, thus leading to a total of 9 year’s imprisonment. Time on remand still counts. The appeal is thus allowed to this extent in the case of Nelson.