Regina v Hussein Semusu, Beni Nami  EWCA Crim 513, 2021 WL 01411080
The defendants, BN and HS were aged 19 at the time of the incident for which they were later convicted of murder. BN was sentenced to life imprisonment with a minimum term of 20 years. HS was sentenced to life imprisonment with a minimum term of 16 years. The Attorney General appealed the sentences as being unduly lenient. The Court of Appeal upheld BN’s sentence but increased HS’s sentence to life imprisonment with a minimum term of 19 years.
Two defendants (“BN” and “HS”) were convicted of murder in December 2020. BN was found to have been armed with the murder weapon, a Rambo style knife, and dealt the fatal blow, and HS was found to have been present at the commission of the offence and to have known that BN had a weapon and intended to use it. Both defendants were 19 at the time of the offence. BN was sentenced to life imprisonment with a minimum term of 20 years. HS was sentenced to life imprisonment with a minimum term of 16 years.
There were a number of aggravating factors originally identified by the judge: (i) premeditation, (ii) the fact that the incident occurred in a public place (iii) both defendants fled the scene (iv) both defendants changed their clothing and BN attempted to remove evidence (v) HS had previous relevant convictions (vi) BN subsequently attempted to blame a third party for the stabbing and (vii) neither defendant showed remorse.
The biggest mitigating factor was the age of the defendants, who were both 19 at the time of the offence. There was held to be no mitigation for provocation, or a degree of self-defence as per paragraph 10(d) and (e) of Schedule 21 of the Sentencing Act 2020, even though the victim had himself brought a knife to the scene and used it to inflict potentially fatal violence. The judge held that the only reason for the victim’s actions was that both defendants had approached the victim armed (or knowing that the other was armed). It was noted that the victim was not blameless, and did strike the first blow, with BN inflicting the fatal blow in response. This was of some value in mitigation, but the value was reduced by the fact that the defendants had sought out the victim and confronted him intending to carry out a knife attack. The judge also acknowledged a degree of difference between the culpability of BN and HS, as BN dealt the fatal blow and HS played a secondary role.
The starting point for both defendants was 25 years, as the defendants brought a knife to the scene and used it to commit murder. The Court of Appeal confirmed that this was the correct starting point but noted that care must be taken not to double count aggravating factors where aspects of the offence are already accounted for in the 25-year starting point.
The Court of Appeal agreed with the judge that there was no reason to increase starting point for any of the aggravating factors and confirmed that it was permissible to distinguish between the minimum terms for the defendants who were convicted on a joint enterprise basis in order to reflect the lesser culpability of the secondary party. In this case HS was convicted on the basis that he encouraged or assisted BN intending that BN cause death or really serious harm.
The Court of Appeal considered the key questions to be whether the discount of five years from the starting point on account of BN’s youth was too great and whether the difference in minimum terms between BN and HS as principal and secondary party was too great.
The Court of Appeal found that the 5-year reduction in the minimum term, from 25 years to 20, for BN was at the very lowest limit of the sentencing range, but was not unduly lenient. Another court sentencing BN might properly have arrived at a minimum term higher than 20 years.
Noting that the judge had given significant discounts for youth, the Court of Appeal found that that the further deduction of 4 years for HS (a total deduction of 9 years from the starting point) was unduly lenient; it was unclear that his culpability was markedly less than BN, and he had relevant previous convictions. In order to preserve the judge’s original view that a distinction should be made between BN and HS, the Court of Appeal quashed the 16 year minimum term for HS and raised it to 19 years.
This case reiterates the well-established principle that attaining the age of 18 does not represent a cliff edge between being sentenced as a youth and being sentenced as an adult. The Court of Appeal, agreed that a significant discount for the youth was appropriate but stated that a reduction of five years from a starting point of 25 years was at the top end of what it would consider reasonable to discount on the basis of youth.
Charlotte Rice, Associate, Paul Hastings