No. 2016/02644 A4 & 2016/02726 A4
Neutral Citation Number:
[2016] EWCA Crim 1614
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Wednesday  19
th
October  2016
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(
Lord Thomas of Cwmgiedd
)
MR  JUSTICE  HOLROYDE
and
MRS  JUSTICE  McGOWAN  DBE
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R E G I N A
v
ALEXANDRIS  KUDRIASOV
ANDRIS  APSITIS
- - - - - - - - - - - - - - - - - - -
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Mr M Watson
appeared on behalf of the Appellant Alexandris Kudriasov
Miss E Leonard
appeared on behalf of the Appellant Andris Apsitis
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J U D G M E N T
Wednesday 19
th
October 2016
THE LORD CHIEF JUSTICE:
I shall ask Mr Justice Holroyde to give the judgment of the court.
MR JUSTICE HOLROYDE:
1. These appellants, Alexandris Kudriasov and Andris Apsitis, were convicted after a lengthy trial in the Crown Court at Lincoln of two offences of wounding with intent to do grievous bodily harm, contrary to
section 18 of the Offences against the Person Act 1861
, and an offence of conspiracy to pervert the course of public justice. On 17
th
May 2016 the trial judge, His Honour Judge Hirst, sentenced each of them to a total of 18 years' imprisonment, comprising concurrent terms of 18 years' imprisonment for each of the
section 18
offences and two years' imprisonment for the conspiracy offence.
2. The appellants now appeal against the length of their sentences by leave of the single judge.
3. The offences were committed in Boston, Lincolnshire, on a Saturday evening in September 2015. The appellants and others drove to a block of flats which was the home of the victims of the offences of violence, Mr Kaleckas and Mr Likso. The group were armed and clearly intent on violence. Apsitis was carrying a knife. One of the group was carrying an extendable baton, and others had clubs. Kudriasov may have been carrying a golf club, though it is submitted on his behalf that the evidence pointed to his having acquired that weapon at the scene.
4. Mr Kaleckas and Mr Likso were smoking on a landing outside their flat when they saw the appellants and others coming up the stairs. They were immediately struck to the head and body. Both stumbled to the ground as they tried to escape to their flat. Mr Likso managed to get into the flat and picked up a golf club to defend himself. He was pursued into a bedroom, but used pieces of a dismantled bed to drive his attackers back as they continued to strike at him with clubs and the baton. Outside the flat he tried to help his friend Mr Kaleckas, who was on the ground being punched and stabbed by the appellant Apsitis and another man. The evidence showed that Apsitis stabbed Mr Kaleckas about eleven times to his front and back torso. Mr Likso was then driven back into his bedroom, where the appellant Kudriasov struck him on the head with a golf club. The blow was so violent that the head of the golf club broke off the shaft. Kudriasov then stabbed the shaft into Mr Likso's chest. Mr Likso was aware of another attacker holding a knife to his face, but then lost consciousness.
5. The appellants left the scene by car. They endeavoured to clean their clothing and footwear and the car. They were assisted in this by a third defendant who was also convicted of the conspiracy to pervert the course of public justice.
6. As a result of the attack, Mr Likso sustained a fractured skull, a large cut to the back of his head, and stab wounds to his chest and abdomen. He underwent surgery to repair a damaged part of his bowel. He spent a number of days in intensive care, and he underwent a further operation shortly before the trial. By the time of the trial he was still unable to lift heavy weights. His digestive system was impaired. He was suffering from post-traumatic stress disorder and was unable to work.
7. Mr Kaleckas suffered wounds to the side of his head, multiple stab wounds to the chest and abdomen, and stab wounds to his right hand and left elbow. As a result of his injuries, he has lost control over some of the fingers of one hand. He bears the scars of his wounds. He, too, suffers from post traumatic stress disorder. He has nightmares, and he too is unable to work. Thus, both victims suffer significant continuing disability.
8. The appellant Apsitis is now 37 years old. He has previously been convicted of offences which were not particularly serious and did not involve violence. The learned judge rightly treated him as being of effective good character.
9. The appellant Kudriasov is now 43 years old. He was of previous good character.
10. In his sentencing remarks the learned judge observed, with justification, that the injuries, serious as they were, could have been far worse. He concluded that the case fell within category 1 of the Sentencing Council's Definitive Guideline in relation to assault cases. The factors which the judge found indicated greater harm were that the assaults on both victims were sustained, and, at least in the case of Mr Likso, that the injury which was caused was serious in the context of the offence. The factors which he identified as indicating higher culpability were the significant degree of premeditation and the use of weapons.
11. Mr Watson and Miss Leonard, for whose succinct and focused submissions we are grateful, realistically accept that the
section 18
offences fell within category 1. That gives a starting point for each of those offences of twelve years' imprisonment, with a sentence range from nine to 16 years.
12. In addition, the judge rightly identified a number of aggravating features: first, the fact that the attacks took place in the victims’ home; secondly, the significant ongoing effect on both victims, and the fact that they had felt obliged not only to leave their homes, but also to leave this country; thirdly, the fear caused to persons who were present and witnessed the assault – one witness suffered a significant psychological effect and has lost her career; another felt obliged to leave the Boston area and so became separated from her family; fourthly, the fact that the aftermath of the incident was also witnessed by young children; and finally, the fact that the offences were committed under the influence of alcohol.
13. The judge treated the attempts made to clean the clothing and the car as an aggravating feature of the
section 18
offences, and so dealt with the conspiracy count by a concurrent sentence.
14. Neither counsel suggests that the judge was wrong to treat both appellants in the same way, or to structure the sentences in the way he did. It is, however, submitted on behalf of both appellants that the judge failed to give sufficient weight to a number of important matters of mitigation. So far as the offences are concerned, it is submitted that the judge should have given greater weight to the role played by the appellants. Counsel tell us, and we of course accept from them, that in the course of the sentencing hearing the judge had indicated that neither of the appellants was the leading member of the group of attackers and that they had been brought into the incident by another or others who had not been convicted. We understand that the judge took the view that it was someone other than the two appellants who, to adopt counsel's helpful phrase, "led the charge". No specific observation or finding to that effect was made in the sentencing remarks.
15. It is further argued that the judge was wrong to reject a submission that there had been an element of provocation, which provided some mitigation for the offences of violence. In this regard, counsel pointed to evidence that there had been an incident earlier that day in which Kudriasov had been injured. They argued, in the alternative, in their respective written grounds, that the judge should have found some mitigation in evidence suggesting that there may have been some kind of drugs background to the attack on Messrs Kaleckas and Likso.
16. Turning to personal mitigation, both appellants submit that the judge, although he specifically referred in his sentencing remarks to the appellants' previous good character, or effective good character, failed to give sufficient weight to that aspect of the case. Counsel pray in aid that both appellants are hard-working men with family responsibilities, and that both have behaved well and made good use of their time in custody whilst on remand awaiting trial.
17. Next, specific submissions are made on behalf of the appellant Apsitis to the effect that his inability to speak or read English will mean that time in custody will be harder for him than for most other prisoners. It is also submitted on his behalf that the judge should have given some weight to the fact that Apsitis had always admitted presence, and that at a plea and case management hearing he had admitted guilt of an offence of unlawful wounding.
18. On behalf of the appellant Kudriasov, it is submitted that the judge was wrong to find that he may well have brought a golf club to the scene. It is, however, realistically acknowledged that, whether he did or not, he was part of a group who were collectively armed.
19. For those various reasons counsel submit that the total sentences of 18 years' imprisonment were manifestly excessive in length.
20. We accept that each of those points is well-founded, but we have to consider the weight which can be given to them. It seems to us that, whether or not the appellants were the leading members of the group, there can be no doubt that they played leading roles in the joint violence which caused such serious injury to the two victims.
21. As to the suggested provocation or background to the violence, the judge specifically addressed this in his sentencing remarks. He said that he did not know what had been the cause of the attack. He noted that one appellant had not given evidence, and the other had given a lying account about a drugs purchase which went wrong. He said that each of the appellants had had the opportunity to say what the true cause of the incident was, but had chosen not to do so. In those circumstances we can well understand the learned judge's conclusion. We would observe that it is, in any event, difficult to see how either a suggested drugs-related background or a wish to seek revenge for an earlier incident could provide mitigation.
22. As to the matters of personal mitigation, we are confident that the learned judge must have taken these into account when he passed sentence.
23. We must then step back and consider the overall submission, which can be summarised in this way. The sentencing guideline for a single offence of this nature indicates a starting point of twelve years and a range which goes up to 16 years. Counsel argue, cogently, that even taking into the fact that there were two offences of serious violence, an increase from the starting point of twelve years to a sentence of 18 years was manifestly excessive. Counsel invite the court to consider what sentence would have been passed if the offender whom the judge did regard as having led the charge had been convicted.
24. We see merit in those submissions. We are persuaded that the learned judge did on this occasion move too far upwards from the guideline starting point. In our judgment, for the offences of wounding with intent, concurrent sentences of 16 years' imprisonment would have sufficed to reflect the undoubted gravity of the offending.
25. In those circumstances, we allow each of the appeals to this extent. We quash the concurrent sentences of 18 years' imprisonment, and we substitute for them concurrent sentences of 16 years' imprisonment.
26. We make no alteration to the concurrent term for the offence of conspiring to pervert the course of public justice.
27. Thus, the effect of our decision is that for each of these appellants the total term of imprisonment is reduced from 18 years to 16 years.