This judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives.
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Mrs Justice Tipples:
Introduction
The appellant
- On 28 February 2024 in the Crown Court at Snaresbrook before His Honour Judge Falk the appellant was convicted of the conspiracy to commit grievous bodily harm contrary to section 1(1) of the Criminal Law Act 1977 and section 18 of the Offences against the Person Act 1861. This was count 1 of the indictment and related to a shooting which took place on the Broadwater Farm Estate, Tottenham on 29 August 2017. The appellant was acquitted of possession a firearm with intent to endanger life, which was count 2 on the indictment. The appellant was 26 at the date of this conviction.
- On 1 March 2024 the appellant was sentenced by the trial judge to an extended sentence of 24 years comprising a custodial term of 19 years and an extension period of 5 years.
- This sentence was made concurrent to a sentence that the appellant was already serving which he had received on 17 September 2021 for the revenge and subsequent shooting which had taken place in Rigg Approach, Leyton on 28 October 2017 ("the Rigg Approach shooting"). That sentence was an extended sentence of 18 ½ years, comprising a custodial term of 15 ½ years and an extended licence period of 3 years. The appellant sought leave to appeal that sentence on the ground it was manifestly excessive and, on a hearing before the full court, the application for leave to appeal was dismissed.
- The appellant was born on 16 October 1997 and was 19 at the date of the offence that he was sentenced for on 1 March 2024. He had three convictions for six offences between 2013 and 17 September 2021. These included possessing a bladed article for which he received a referral order in 2013 and two offences of possessing a controlled drug with intent to supply for which he received a suspended sentence order in 2016. On 17 September 2021, the appellant received an extended sentence as set out above.
The co-defendant - Kamal Parrish
- The appellant's co-accused, Kamal Parrish, was convicted of counts 1 and 2 on the indictment and on 1 March 2024 was sentenced to an extended sentence of 26 ½ years comprising a custodial term of 21 ½ years and an extension of five years. In respect of Rigg Approach shooting, Kamal Parrish had received an extended sentence of 19 years, comprising a custodial term of 16 years and an extended licence period of 3 years.
- Kamal Parrish was born on 15 August 1992 and was 26 at the date of the offences he was sentenced for on 1 March 2024. He had 17 convictions for 36 offences (which included the Rigg Approach shooting). He had a long history of offending included offences in relation to driving, drugs supply, assault, theft, possession of a knife, two assaults in 2013, threatening behaviour in 2014 and 2015, assaulting the police in 2015 and, on 22 October 2018, possession with intent to supply heroin and cocaine. Then, on 17 September 2021, he received an extended sentence as set out above.
The appeal
- The appellant appeals against sentence with the leave of the single judge. He does so on the basis that the sentence passed on 1 March 2024 is wrong in principle and/or manifestly excessive.
- In his written advice and grounds of appeal Mr Tomassi for the appellant advanced this ground of appeal on the basis that the sentence failed to reflect the appellant's acquittal on count two; was too closely aligned to that of the actual shooter; and that much of what the appellant fell to be sentenced for had already been dealt with in the sentence passed on 17 September 2021, which he calls "the Rigg Approach sentence". In his oral submissions before this, Mr Tomassi advanced this ground of appeal on the basis that there was an error in the judge's sentencing remarks which resulted in him failing to draw a proper distinction between Kamal Parrish on the one hand, and the appellant on the other.
- We now turn to the relevant facts.
Facts – indictment before the judge – shooting at Broadwater Farm
- Kamal Parrish fell out with a person called Jacob Ekwubiri (AKA Maitland) and decided to punish him. Kamal Parrish and the appellant entered into a conspiracy to obtain a firearm and have Mr Ekwubiri shot. Kamal Parrish accepted that he was involved in drug trafficking, and the appellant said he would supply to his associates drugs that he had obtained from Kamal Parrish. Kamal Parrish was able to obtain a 9 mm semi-automatic Browning high power pistol. A plan was then formed that Mr Ekwubiri would be shot. The appellant joined in the conspiracy and agreed that Parrish would shoot Mr Ekwubiri, fully intending that Mr Ekwubiri would be shot and seriously wounded. Planning was carried out using cheap disposable Nokia telephones that were planned to be thrown away afterwards. Kamal Parrish met up with the appellant at his grandmother's house on 29 August 2017, just before the offence took place (although the jury by their verdict were not sure that the appellant took part in the actual shooting). Kamal Parrish drove or was driven to Broadwater Farm Estate, Tottenham, knowing that Mr Ekwubiri lived there and that he would be there at the time. A second vehicle drove up in convoy with Kamal Parrish. The two cars drove into a residential block car park and turned around to face the exit with their engines idling. Mr Ekwubiri appeared shortly after 10pm. Kamal Parrish got out of one of the vehicles and chased Mr Ekwubiri through the car park and, with his back to a children's playground, fired five shots at him at body height. One of those bullets hit Mr Ekwubiri in the leg. He fell to the ground before quickly getting up and running out of the block. Kamal Parrish gave chase before returning to one of the vehicles and driving, or being driven, off within six minutes of arriving into the car park. The extent of Mr Ekwubiri's injuries were unknown due to his lack of co-operation with the authorities, however he attended hospital where the bottom of his joggers were cut off by medics and there was a gunshot wound to the left leg. Kamal Parrish and the appellant changed their telephone numbers to different burner telephones. Two days later Kamal Parrish travelled to Sheffield to dispose of the gun. Mr Ekwubiri, who was also a career criminal, did not wish to assist the Police.
Facts of previous sentence - 17/09/2021 – the Rigg Approach shooting
- At 5 am on 28 October 2017, at an after party in a residential street in Rigg Approach, Leyton, Mr Ekwubiri and his associates, who had been looking for Kamal Parrish and the appellant, engaged in a revenge attack upon them. Kamal Parrish and the appellant had prior knowledge that the attack was coming and had gained access to two further firearms; an Uzi submachine gun from which 10 shots were fired and a Sig Sauer self-loading pistol from which two shots were fired. A large scale shootout then took place in the street where two innocent members of the public were caught in the crossfire and suffered injury.
Sentencing - 1 March 2024
- Given the extended sentences the appellant and Kamal Parrish had already received on 17 September 2021 in respect of the Rigg Approach shooting, the judge indicated in the side-bar of the Digital Case System the approach he intended to take in relation to the earlier shooting which had been the subject matter of the trial before him. The judge said this in the side bar on 28 February 2024:
"My preliminary view is the way to sentence this matter is to aggregate the offending for Rigg Approach and Broadwater Farm and pass a concurrent sentence to their current sentences taking into account the 16 years passed for Rigg Approach – I am not considering life in either case but extended sentences are inevitable – the tariff to take into account all matters with a modest adjustment to factor in that this sentence will start on 1st March rather than when they were RIC for the Rigg Approach matter. Counsel to provide short sentencing notes to deal with the guidelines and whether they agree or disagree with the principles of sentence that I have outlined above and the factual basis of Lawrence's sentence in the light of the verdicts in his case".
- The sentence passed in respect of the appellant for the Rigg Approach shooting was, in fact, a custodial 186 months (15 ½ years) and an extension period of 36 months (3 years).
- Counsel for the prosecution, Kamal Parrish and the appellant provided the judge with detailed sentencing notes. Counsel did not have any issue with the approach the judge had indicated that he intended to take.
- The judge's approach is consistent with the general proposition that, when passed, a sentence starts straight away (see section 225 of the Sentencing Act 2020) and also the relevant provisions in the Sentencing Council's guideline in relation to Totality suggesting that extended sentences should be concurrent.
- We now turn to the sentencing in this case.
- In sentencing the appellant for the offence he had been convicted of in the trial before him, the judge said that the appellant was a young man at the time from a good family. The judge reminded himself of the relevant guideline, and that he was sentencing the appellant for an agreement to cause really serious harm, and not the injury that was in fact caused.
- The judge then continued as follows:
"An A1 offence is a starting point of 12 years with a range of 10 to 16. A2 is a starting point of seven years with a range of six to 10. Mr Lawrence, you are in the same category. You are not a leading role, but the plan was to use a highly dangerous weapon. The distinction in your case is that you didn't go through with the plan. But this is to be an exercise in totality. I have to place myself in the position of the sentencing judge, dealing with the criminality of both Rigg Approach and Broadwater Farm altogether, taking into account that the correct sentence for Rigg Approach was 16 years and 15 and a half years, respectively. I also consider that the fair and just reduction to make in each case to factor in the delay and the fact that you've been serving for an appreciable length of time, is two years.
… the principle of totality does not mean that repeat offenders are entitled to a bulk discount. The cardinal principle is that the sentence should be no more than what is just and proportionate for the criminality as a whole. And in this case, that is involvement in two shootings, two months apart, with three different highly dangerous firearms. One in a residential street, the other in a car park of a residential block, with a high risk of death and collateral damage to innocent members of the public. If I was dealing with the Broadwater Farm alone for the two offences, the total determinate sentence for you Mr Parrish would have been 15 years. And therefore aggregating the criminality for Rigg Approach into the sentence on count 2 will inevitably take it outside the guideline.
In relation to you, Mr Lawrence, the determinate sentence for your involvement in such a serious conspiracy, even factoring in your age, would have been 11 years. I clearly must find you both to be dangerous men … For completeness, this is not a case that carries automatic life under section 283 of the Sentencing Act, as these offences were committed before you were convicted for Rigg Approach. A determinate sentence would not meet your current risk so extended sentences under section 279 of the Sentencing Act must follow, aggregated to factor in the criminality of Rigg Approach.
For you, Mr Parrish, the main sentence will be passed on count 2. So, in your case, on count 1 there will be 12 years' imprisonment, concurrent to Rigg Approach. Count 2, for both shootings, the aggregate sentence would be 23 ½ years. I deduct two years to take into account both the delay and the fact that the sentence starts today rather than [when] you were first taken into custody. That is a sentence of 21 ½ years. There will also be a five year extended licence, so total sentence of 26 ½ year's licence plus custodial term …
Mr Lawrence, I do take into account that you were younger, you did not take part in the shooting, although you were fully involved in the agreement and planning, and intended for grave or particularly grave harm to be inflicted through a shooting with a 9mm semi-automatic pistol. As I've said, were I sentencing you for the conspiracy alone on this basis, the sentence would have been 11 years. But I must aggregate the criminality of Rigg Approach onto the conspiracy count. The sentence in your case is 21 years, reduced to 19 years for the delay and adjustment for the fact that the sentence starts today. Plus five years extended licence, which his 24 years – that's licence and tariff."
- The judge therefore identified that, if he was sentencing for the shooting on the Broadwater Farm Estate alone, then:
a. Kamal Parrish would have received a total determinate sentence of 15 years in respect of the two offences he had been convicted of, namely the conspiracy to commit grievous bodily harm (count 1) and possession of the fire arm (count 2) (page 8D of the sentencing remarks); and
b. the appellant would have received a determinate sentence of 11 years in respect of the one offence he had been convicted of, namely conspiracy to commit grievous bodily harm.
- The judge then aggregated in the criminality from the earlier shooting at Rigg Approach.
- Here he identified that for Kamal Parrish the main sentence would be passed on count 2. For this the judge identified the aggregate sentence would be 23 ½ years custody, before he adjusted it downwards by two years for delay and the fact the sentence started on 1 March 2024, and then applied the extended licence period of 5 years, which gave an extended sentence of 26 ½ years. The judge identified that, on count 1, the sentence for the conspiracy would be 12 years' imprisonment, concurrent to the extended sentence already passed in respect of the Rigg Approach shooting.
- The total of the determinate terms for Kamal Parrish was 31 years, being the total of 16 years (Rigg Approach shooting) and 15 years (Broadwater Farm Estate shooting; counts 1 and 2). The judge must have adjusted that total downwards to 23 ½ years before then adjusting it downwards again by two years, and applying the extended licence period of five years.
- For the appellant, he fell be sentenced on count 1 only. For this the judge identified the aggregate sentence of 21 years, before he adjusted it downwards by two years for the delay and the fact the sentence started on 1 March 2024. The judge identified that, on count 1, the sentence for the conspiracy would have been 11 years' imprisonment.
- The total of the determinate terms for the appellant was 26 ½ years custody, being the total of 15 ½ years (Rigg Approach shooting) and 11 years (Broadwater Farm Estate shooting). The judge must have adjusted that total downwards to 21 years before then adjusting it downwards again by two years, and applying the extended licence period.
- Therefore, although the judge does not say so in terms, it appears that he applied a downward adjustment for totality of 7 ½ years for Kamal Parrish and 5 ½ years for the appellant.
- The judge's sentencing remarks do not explain why, on the one hand, Kamal Parrish appears to have received a more generous downwards adjustment in respect of totality than the appellant which has resulted in the appellant receiving an extended sentence which is only two years shorter than Kamal Parrish.
- The appellant maintains that this outcome is not justified when there were clear distinctions to be drawn between the overall offending of the appellant, on the one hand, and Kamal Parrish, on the other. Most importantly:
a. The appellant was only convicted of the conspiracy (count 1) in respect of offending at the Broadwater Farm Estate. The appellant was not the shooter. Rather, the shooter was Kamal Parrish and he was convicted of both counts 1 and 2.
b. The judge said that, if he was dealing with the offending at the Broadwater Farm estate alone, he would have sentenced the appellant to 11 years' imprisonment on count 1, and he would have sentenced Kamal Parrish to 15 years' imprisonment on counts 1 and 2. The judge therefore drew a clear distinction between both of them in respect of the shooting at the Broadwater Farm estate, which was reflected in a difference of 4 years in the notional custodial terms.
c. The appellant was 19 when the offences occurred. Kamal Parrish was older at 26.
d. The appellant was, relatively speaking, lightly convicted. Kamal Parrish had an extensive and long history of serious criminal offending.
- The appellant does not have any issue with the judge's downward adjustment of two years in respect of delay, and the fact the sentence takes effect from the date it was passed on 1 March 2024.
Discussion and conclusion
- This was, as counsel for the appellant recognised, a difficult sentencing exercise for the judge. However, we accept his submission that the sentence the judge passed on the appellant does not adequately reflect the clear distinctions which can be drawn between the appellant and Kamal Parrish. This is particularly so as the appellant was not convicted of having the weapon with him at the Broadwater Farm Estate, has youth on his side, was much more lightly convicted and, on the evidence, was less involved in the offending and was acting under Kamal Parrish's direction.
- Further, the judge having identified the different sentences he would have passed if he was only dealing with the offending at the Broadwater Farm estate and, in particular the difference of four years between the custodial sentences for Kamal Parrish and the appellant, then lost that clear distinction when he aggregated that sentence for the appellant with the criminality of the Rigg Approach Shooting. The judge was, of course, correct to make a downward adjustment for totality to the aggregate criminality on count 1 and the Rigg Approach shooting but, in doing so, the distinction between the defendants should not have been lost. That clear distinction was lost and, to that extent, there was an error in the determination or calculation of the appellant's sentence.
- The consequence of this is an extended sentence of 24 years is wrong in principle and requires further downward adjustment to reflect this factor. We consider that the further appropriate downward adjustment taking these matters into account should be eighteen months to be just and proportionate to the appellant's overall offending.
- Accordingly, we allow the appellant's appeal and quash the sentence passed on count 1. We impose an extended sentence under section 279 of the Sentencing Act 2020 of 22 ½ years' duration in total. This is extended sentence is made up of two parts: a custodial period, which will be 17 ½ years and an extended licence period of five years.
- The appellant will serve two-thirds of the custodial period in prison before the Parole Board will consider whether it is safe to release him and, if so, on what terms. Once released the appellant will serve on licence any part of the custodial period that remains, and he will then be subject to an extended licence for a further period of five years. If, when the appellant is subject to a licence, the appellant commits another offence or fails to comply with the terms of his release he will be liable to be recalled to custody and may serve the entire sentence in custody.
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