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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 >> Hussain & Ors, R v [2008] EWCA Crim 1226 (20 May 2008) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/1226.html Cite as: [2009] 1 Cr App Rep (S) 41, [2008] EWCA Crim 1226, [2009] 1 Cr App R (S) 41

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		20 May 2008

Tuesday 20 May 2008

LORD JUSTICE MOSES: I will ask Sir Richard Curtis to give the judgment of the court.

SIR RICHARD CURTIS:

1. The three appellants before us this morning appeal by leave of the single judge against sentences passed by Her Honour Judge Goddard at the Central Criminal Court following a trial. The sentences were passed on 11 January 2008.
2. The first appellant is Mamoon Hussain, 21 years of age then and 22 now, born on 19 September 1985. He has three previous convictions for violence: assault occasioning actual bodily harm in 2004 and 2005, with assault and violent disorder accompanying those offences when he received a custodial sentence; threatening behaviour and two assaults which also resulted in a custodial sentence. The second appellant is Delwar Hussain, born on 19 October 1986, then aged 20, now aged 21. He has three previous convictions for violence (all of threatening behaviour) in 2005 and 2006 for which in each case he received community sentences. The last appellant is Sodrul Islam, born on 4 November 1984, 23 years of age. He has one previous conviction for dishonesty as a juvenile but none for violence.
3. The facts of the case are as follows. On 11 April 2006 a group of young people, three men and two women, were making their way home on foot after a pleasant evening out when, on the Clichy Estate, near Shirley Street in East London, they were confronted by eight or nine young Asian men who taunted and abused them. Much of the abuse was racist. This turned into a full-scale attack without reason or pity. The attackers were armed and those attacked, defenceless. One of the Asian group was armed with a dar (a type of machete used in Bangladeshi cooking). With this implement he hit the principal victim, John Payne, whose head was cut open. His skull was fractured, causing fragments of bone to penetrate his brain tissue. Not content with the results of this terrible injury, others of the group attacked Mr Payne, then senseless on the floor, kicking him and striking him. The women in the group were also struck. The main offender then attacked another victim, Danny Curran with the dar. He struck him on the head, causing a severe head wound, but by merciful chance without inflicting the kind of severe, permanent and life-threatening injuries that had been caused to Mr Payne. Fortunately, one of the young women in the group managed to call the police.
4. All three appellants were arrested in nearby streets. Delwar Hussain was found to be drunk. Each appellant was clearly implicated by identification evidence from witnesses and the considerable amount of blood found on him. The jury equally rejected their individual claims that other people were responsible for these attacks and convicted them of the attempted murder of Mr Payne (count 1), wounding with intent on Mr Curran (count 3), and also of violent disorder (count 4). Concurrent sentences of 18 years' imprisonment for attempted murder, 10 years' imprisonment for wounding with intent and four years' imprisonment for the violent disorder offence created by the general violence in which they involved themselves that night were passed by the trial judge.
5. The judge proceeded to sentence on the basis, despite counsel's submissions, by reference to R v Ford [2006] 1 Cr App R(S) 36 at page 204, [2005] EWCA Crim 1358 That case concerned two counts of attempted murder by the appellant shooting thrice at the victims in cold blood. A sentence of 30 years' imprisonment concurrent on each count was imposed. Having regard to the statutory framework created by the Criminal Justice Act 2003 there was a question as to when the appellant would be released and the kind of release that would occur, which is absent from these appeals. We set that matter on one side. In Ford another division of this court considered that 30 years was an appropriate starting point if murder had been committed by any one of the cold-blooded shootings since "the completed offence would have come within the category of a particularly high seriousness" (see Schedule 21, paragraph 5(1) of the 2003 Act).
6. In the instant case we have regard to five of the findings of the judge as follows:

(1) None of the appellants was the principal offender who wielded the dar and injured both victims so seriously.

(2) The case against each of the appellant was based upon joint enterprise. The judge said, "You joined in realising that the axe would be used and the man with the axe might kill .... whether you agreed with it or not".

(3) The attack was not premeditated (sentencing remarks at page 5A).

(4) These appellants were not responsible for the words expressing hatred on the grounds of race which preceded and precipitated the violence used by the group.

(5) The judge found that it was not appropriate to sentence any of the appellants under the new provisions of indefinite imprisonment (or detention) reserved for dangerous criminals as found under the new Act.

7. We agree with the submissions of counsel that Ford was not the appropriate route to sentence in this case. It cannot be said that this offence, shocking as it is, is of particularly high seriousness. We therefore look at the matter afresh. It is our view, bearing in mind that there is certainty about release dates in each of these cases (which distinguishes this case from Ford), that the appellants will be released at the halfway point (see section 244 of the 2003 Act). We consider that on count 1 the sentence was too high in each case. The correct sentence, in our judgment, is one of 15 years' imprisonment. We reach that result having regard to the five factual findings of the judge to which we have referred and taking into account the factor to which Ford points, that a case of attempted murder requires the sentencing judge to have regard to what would have been the appropriate sentence had the offence been one of murder.
8. Each counsel has attacked the sentence of ten years' imprisonment for the wounding with intent. We agree with the thrust of the submissions. We have not found it helpful to be referred to a selection of sentences passed for offences committed under section 18 of the Offences against the Person Act 1861. Section 18 is a particularly difficult area of sentencing and sentence is very largely driven by the facts of each case. It is within our knowledge that there are many other cases, particularly recently, where higher sentences have been passed than those indicated in the selection we have received from counsel. Having regard to the facts of this case, we consider that the appropriate sentence for the offence of wounding with intent is one of eight years' imprisonment in each case.
9. Accordingly, in each case we quash the sentence of 18 years' imprisonment imposed below on count 1 and substitute for it one of 15 years' imprisonment; and we quash the sentence of 10 years' imprisonment on count 3 and substitute for it one of eight years' imprisonment, those sentences to run concurrently. The sentence of four years' imprisonment on count 4 remains unaltered. The time that the appellants have served on remand will count towards their sentences.