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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Banaszek v R. [2010] EWCA Crim 1076 (18 May 2010) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2010/1076.html Cite as: [2010] EWCA Crim 1076

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IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
His Honour Judge Worsley QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/05/2010

Lord Justice Stanley Burnton:

Introduction

1. On 11^th March 2009, at the Central Criminal Court before H.H.Judge Worsley QC the appellant was convicted of manslaughter. He had been indicted for murder, but the jury found him guilty of the lesser offence, on the ground of provocation. On 4^th June 2009 he was sentenced to imprisonment for public protection pursuant to section 225 of the Criminal Justice Act 2003 with a minimum term of 6 years less 321 days spent on remand. He appealed against his sentence with leave of the Full Court, following refusal by the single judge.
2. After hearing the submissions on behalf of the appellant and the respondent, we announced our decision on the appeal. The appeal was allowed to the extent that the minimum term of 6 years was reduced to 4½ years, less time spent on remand. We said that we should give the reasons for our decision in writing, and we now do so.

The facts

3. The deceased, 42 year old Genadjis Jeronis, came to the UK in 2005 from Latvia. He had spent most of his adult life serving in the Soviet and Latvian armies and was commonly known as "The Captain". A few months before his death Jeronis moved into one of a number of squats in Tottenham High Road that were occupied by eastern Europeans.
4. On 9 July 2008 Jeronis returned to the squat. He was drunk. During the evening he drank with others at the squats. The appellant turned up at about 11.00pm. After an exchange of words the appellant attacked Jeronis. Adam Kudla and other people from the squats left and hid amongst some bushes. Kudla said he saw the two men grab each other and fall to the floor. He saw that the appellant had a kitchen knife, but did not see it being used.
5. The appellant was seen to leave the squats about fifteen minutes later. Police officers at some nearby shops saw that the appellant had a prominent wound across the palm of his right hand. He claimed that he had been robbed. He gave a false name and date of birth. He was treated at hospital and left there at about 1.50 am. He refused a lift home that was offered by the police.
6. Jeronis was found near the edge of the roof. A knife was close by. Kudla and another went to report the incident to their local police station. At about 3.00am they came across the appellant, who had returned to the area. They accused the appellant of killing Jeronis. He did not reply, but went back to the squat.
7. The appellant came across a Polish man and told him that someone had tried to stab him, but he had grabbed the knife and suffered the cut to his hand. At one point he started to cry.
8. At 3.50 am Kudla reported what had happened at Tottenham police station. Officers attended the squat. At 4.20 am the ambulance service arrived and at 5.14 am Jeronis was declared dead.
9. The roof terrace and surrounding area were searched and a number of knives were recovered, none of which could be scientifically linked to the appellant or Jeronis. A bloodstained knife was later found in the grounds of a primary school. Swabs of material taken from the blade were consistent with the material having come from Jeronis, the appellant and at least one other person.
10. A post mortem examination revealed a large number (some 30) of wounds that had been inflicted by a knife during a sustained attack. The wounds were predominantly to the face, scalp and both legs. They were caused by a combination of slashing, stabbing and jabbing. No defensive type injuries were found on Jeronis' forearms or hands. Dr Poole gave evidence that whilst the knife recovered from the school could have caused most of the wounds, it could not have caused all of them. At least two knives were involved.
11. The view of Dr Poole and another pathologist was that the wound to the appellant's hand was likely to have been sustained during the stabbing process, by the hand slipping from the handle to the blade, rather than by him grabbing hold of a blade in an attempt to wrest it from Jeronis.
12. On 15 July 2009 the appellant was arrested. When interviewed he declined to answer questions. At trial he said that a few weeks before the incident Jeronis had given him some red wine. The next thing he recalled was waking up in Jeronis' bed. He later discovered semen and blood in his underwear and suspected that he had been anally raped. He was not sure who was responsible, but suspected it may have been Jeronis. He felt too embarrassed and ashamed to tell anyone. It affected his relationship with his girlfriend and he began to drink heavily.
13. On the day of the incident he had been drinking heavily and had used crack cocaine. He said he went to Kudla's squat to sleep. He said he did not have a knife. He was surprised to see Jeronis at the squat. He said Jeronis immediately grabbed his bottom and said words to the effect of, "Nothing happened rent boy" and laughed. The appellant said he took this to be a reference to the anal rape three weeks earlier and in that moment he realised Jeronis had been responsible. The appellant said he lunged at Jeronis and they exchanged blows. He said Jeronis had a knife, which he managed to grab, cutting his hand in the process. He said that at that point he went into a rage and could not recall what happened thereafter. Although he could not recall killing Jeronis he accepted that he must have been responsible.
14. Sentencing the appellant, the judge said that he had gone, in drink, to the squat looking for Jeronis. He believed that Jeronis had sexually assaulted him after spiking his drink. That was the basis of the defence of provocation advanced before the jury. It was accepted that, on the jury's verdict, there had been conduct by Jeronis which had caused him to lose control when he faced him. His evidence before the jury was that immediately before he launched his attack, Jeronis grabbed his bottom and called him a "rent boy". The original provoking conduct, the very grave sexual assault upon him, had taken place a month earlier. The reference to it that night was a low degree of provocation, albeit a very real one to him. On the evidence before the jury he went to the squat armed with two large knives, anticipating that he might encounter Jeronis. It was accepted that he had no intent to carry out a fatal attack at the time he went to the squat. After the victim called him a "rent boy" and touched his bottom, he launched a ferocious attack, as a result of which the victim bled to death. He sustained a deep laceration to his right hand, which indicated the degree of force in the blows that he delivered.
15. The appellant had lied to the police about his bleeding hand, claiming that he had been the victim of a robbery. Had the police been directed by him to the scene of the attack, it was just possible that the deceased's loss of blood could have been stemmed and his injuries treated. He had shown no remorse for his actions. After his release from hospital he returned to the scene, saw that Jeronis was dead and removed the knives he had used. One of the knives was later recovered in a nearby school playground. He had hoped to lead the police away from him and his responsibility for the death. After the provoked attack, he did not summon an ambulance and did not alert a police officer as to what had happened. He had previous convictions for assault and intimidation in Poland. When in drink he became a danger to others.
16. It was an aggravating feature of the murder that the level of provocation sustained was low. Had the sexual assault some weeks earlier been so disturbing to him, he would have responded in the hours or days that followed. Account was taken of the sentencing guidelines and what was said about the nature of the provocation and its effect on him. In mitigation, account was taken of his age at the time of the offence, the lack of convictions of any serious nature in this country or in Poland and the jury's clear verdict that there had been provoking conduct which caused him to react as he did. It was submitted that he had shown genuine remorse. Account was taken of the pre-sentence report, in particular the risk assessment. The court was satisfied that he posed a significant risk of serious harm to the public, particularly when he had taken drink. There had to be a sentence of imprisonment for public protection. The determinate sentence would have been 12 years. The minimum period to be served was 6 years, less 321 days already spent in custody.

The submissions on behalf of the appellant and the conclusions of the Court

17. On behalf of the appellant, Mr Lovell-Pank QC submitted that the judge had erred in a number of respects. First, he had found that the appellant had armed himself with 2 knives when he went to the squat, which the evidence did not support. He accepted, however, that the judge had been entitled to find, on the evidence, that the appellant was armed with one knife when he went there.
18. The Court of Appeal would be reluctant to interfere with a finding of the trial judge on a detail such as this. In any event, however, the difference between the appellant carrying one knife and his carrying two knives is insufficient materially to affect the sentence.
19. Secondly, it was submitted that in sentencing the appellant on the basis that he had gone to the squat to confront the victim, the judge departed from the jury's verdict. If the appellant had gone to the squat for that purpose, a reasonable jury would have convicted him of murder, not manslaughter. The only reasonable inference from the verdict was that the appellant had not gone to the squat in order to confront Jeronis.
20. We do not accept this submission. The appellant may have intended to confront, and may have confronted, Jeronis, without then intending to kill him or to cause him serious injury. He may have had a knife or knives with him for reasons unconnected with his intended confrontation, or for self defence. His case, which the jury accepted, was that he lost his self control as a result of what Jeronis said and did when he saw him.
21. Thirdly, it was submitted that the judge was wrong to find, as he impliedly (but not expressly) did, that the appellant, was not remorseful. The appellant certainly showed no remorse in the hours after his attack on Jeronis, when he lied to the police and at hospital and returned to the scene to remove his knife, without alerting anyone to the fact that Jeronis had been injured or killed. His acceptance that he was the person who had killed Jeronis may have been no more than recognition of the strength of the case against him. The judge was in the best position, having seen and heard the appellant, to determine whether he was genuinely remorseful at the time of his trial. It is true that the probation officer, in the PSR, stated that the appellant expressed genuine contrition about the death of Mr Jeronis, but by then he had been convicted. There is nothing in this point.
22. There is, however, greater substance in the submission that the judge was wrong to classify the provocation found by the jury as at a low level. The factual basis for sentencing was that the appellant genuinely believed that he had been anally raped by Mr Jeronis, who on the night of the killing confirmed that he had done so and belittled the appellant and the effect of the rape. Despite the time that elapsed between the alleged rape and the provocation, we regard provocation in such circumstances as substantial rather than low. We appreciate that we are departing from the trial judge's assessment, but the facts on which that assessment was based are equally available to us. By reason of this error in the judge's finding as to the level of provocation, he arrived at a notional determinate sentence that was excessive.
23. The appellant's offence was aggravated by his being armed with one or two knives, by his use of two knives, by the ferocity of his attack, and by his conduct after the attack, to which we have referred above. He was not of good character. The Sentencing Guidelines Council Guideline on Manslaughter by reason of Provocation gives a sentencing range of 4 to 9 years for a case involving a substantial rather than a low degree of provocation. The appropriate determinate sentence in this case would have been at the top of this range, that is one of 9 years' imprisonment.
24. Lastly, Mr Lovell-Pank submitted that the judge had been wrong to impose a sentence of imprisonment for public protection. The jury had implicitly found that the appellant had acted as a reasonable person might in the circumstances. A reasonable person should not be found to be dangerous for the purposes of section 225 of the Criminal Justice Act 2003.
25. We do not accept that a person who kills under provocation cannot be a dangerous offender. As in any other case, whether or not he is dangerous falls to be determined by reference to the considerations set out in section 229 of the 2003 Act as amended, which now include offences of which the offender has been convicted anywhere in the world. There was compelling material before the judge justifying his conclusion, not the least of which were the facts of the killing, the appellant's subsequent conduct, his previous convictions and the contents of the pre-sentence report. He has convictions in Poland for violence, possession of drugs and offences of dishonesty. The probation officer opined, "Mr Banaszek's previous conviction shows a pattern of offending behaviour, involving a predisposition to resort to violence in confrontational situations where he feels he may have been unfairly treated", and that "without appropriate intervention to address [the appellant's] temper, inability to appropriately manage difficult situations, drugs and alcohol use, he may well continue to pose a risk of harm to the public …".
26. For these reasons the appeal in so far as it challenged the sentence of imprisonment for public protection failed. However, the minimum term was reduced for the reasons set out above.