In this issue
Welcome
Challenging the use of DNA in sexual offences
When is a time limit not a time limit?
Victim of trafficking
Appeals against Sentence; England and Wales
Hong Kong Case Summary
Appeals against Conviction; England and Wales
Northern Ireland Case Summary
Appeals against Sentence; England and Wales

By Farrhat Arshad

 

 

Drug importation and dealing via “Dark Web”- applicability of Guideline to online offences - youth of offenders

 

R v Assaf, Roden, Hyams and Patel

 

[2019] EWCA Crim 1057

 

The CACD dealt with four appellants all of whom had been involved in a conspiracy to import and deal drugs of Classes A and C whilst students at Manchester University.  Much of the importation and selling of the drugs had been on the Silk Road website via the “dark web”, which the offenders had accessed using software and payment had been made in Bitcoin.  The appellants had all pleaded guilty to the offences after preliminary challenges to the admissibility of evidence had failed.  The appellants were all teenagers when the conspiracy started and still young men in their early 20s when convicted and sentenced. 

 

On appeal it was argued that the sentencing judge had given insufficient regard to their youth.  Whilst the CACD stated that it had no hesitation in endorsing the observations in R v Clarke and others [2018] EWCA Crim 185, that the youth and maturity of an offender would be factors that inform any sentencing decision, even if an offender has passed his or her 18th birthday, it found on the particular facts that a proper reduction had been made for this factor.  The CACD also observed that, “the force of the proposition is greater in cases where the criminality involves relatively short-lived episodes even if the episodes are repeated. Here the appellants engaged in well-planned and sophisticated conspiracies which involved a course of conduct over many months. Their behaviour did not suggest youthful immaturity; rather the reverse. It is also of significance that these appellants were well-educated young men from stable backgrounds.”

 

The appellants also argued that the fact that the majority of the offending had taken place online was significant for two reasons: (i) that there was less transactional violence if drugs were sold online and posted out and (ii) the Guidelines were not devised with online selling in mind and application thereof to online dealing was likely to result in unfairness and disproportionate sentences.  These arguments were based on the expert report of a professor of criminology which was before the trial judge and the CACD.  The CACD rejected both of these arguments, stating in regard to the first that the Guideline at Step One was concerned only with the culpability of the offender and the indicative quantity of the drugs involved. Factors which reflect transactional violence were aggravating factors to be considered at Step Two. In relation to the second argument, the Definitive Guideline was not concerned with how an offender might be proved to have dealt with a particular quantity but set guidelines depending on what could be proved.  The overall sentences in respect of three of the appellants were reduced on the particular facts of their individual cases.

 

 

 

Applicability of Wounding with intent to cause grievous bodily harm Guideline to offence of wounding with intent to resist arrest -Totality

 

R v Allard

 

[2019] EWCA Crim 1075

 

In sentencing the appellant for an offence of Wounding with intent to resist arrest (amongst other offences), where the appellant had driven a car at a police officer, the sentencing judge had placed the offence in Category 1 of the Definitive Guideline for wounding with intent to cause grievous bodily harm.

 

The CACD held that whilst the Guideline for offences of Wounding with intent to do grievous bodily harm did not strictly apply to the offence of wounding with intent to resist arrest, it was obviously appropriate for the judge to consider it.  However, Category 1 of the Guideline was reserved for those cases where there was greater harm.  The greater harm factor of "injury which is serious in the context of the offence" related to injury which had in fact been caused, as opposed to injury which was intended or likely to be caused. An intention to commit more serious harm than actually resulted from the offence was relevant to culpability.  The injuries to the police officer, which consisted of a dent to the head, sore neck and muscle stiffness, could not be said to be serious injury in the context of the offence of Wounding with intent to cause grievous bodily harm despite the ongoing psychological effect on the victim as described in the victim impact statement.  As such the offence should have been at the top of category 2 rather than in category 1. However, the five aggravating features entitled the judge to move above the Category 2 sentence range.  The overall sentence however would be reduced for reasons of totality.

 

 

 

Manslaughter – diminished responsibility – sentencing guidelines – hospital order v imprisonment – s.45A MHA

 

R v Fisher

 

[2019] EWCA Crim 1066

 

This is an important case on the application of the Sentencing Council's Definitive Guideline for Manslaughter in cases where the defendant is suffering from a mental disorder. The CACD addressed the issues of culpability, dangerousness and the appropriate disposal – imprisonment, hospital order, or s.45A “hybrid order.”

 

 

If you would like to speak to Farrhat Arshad about these cases, please email here.