Saurini, R. v [2023] EWCA Crim 1572 (28 November 2023)

Neutral Citation Number: [2023] EWCA Crim 1572 Case No: 2023/02238/A5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday, 28th November 2023 B e f o r e : VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION (Lord Justice Holroyde) MR JUSTICE BRYAN MRS JUSTICE HILL DBE ____________________ R E X - v - FEDERICO SAURINI ____________________ Computer Aided Transcription of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) ____________________ Mr K Dent KC appeared on behalf of the Appellant Mr J Evans KC and Miss E Emanuel appeared on behalf of the Crown ____________________ HTML VERSION OF APPROVED JUDGMENT ____________________ Crown Copyright © This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. Tuesday 28 th November 2023 MR JUSTICE BRYAN: On 8 th March 2023, following a trial in the Crown Court at Luton before His Honour Judge Topolski KC and a jury, the appellant (then aged 52) was convicted of the murder of Kameron Campbell. On 18 th April 2023, at the Central Criminal Court, the trial judge sentenced the appellant to life imprisonment and set the minimum term at 14 years less time spent on remand, a minimum term of 13 years and 127 days. The appellant appeals against sentence by leave of the single judge on the grounds: first, that the minimum term was manifestly excessive in the circumstances where, it is said, the judge adopted too high a starting point; and secondly, that in any event the judge made insufficient reduction from that starting point for the available mitigation. We turn to the facts. The murder was committed on 20 th August 2022 in the garden of 51 Palgrave Road, Bedford. This was a ground floor flat that the appellant shared with his ex-partner, Alesia DeSantis and their 13 year old son who had disabilities and required significant medical care. The victim, Campbell was a local drug dealer and he paid Alesia DeSantis in cash and drugs to drive him around the area. He arrived at 51 Palgrave Road at 4.30 pm and entered the garden through the front gate. He had with him a rucksack and a knife. Campbell often used knives to threaten others and had previous convictions for possession of a machete (in 2013), possession of a kitchen knife (in 2018), and possession of two knives (in 2019). The appellant, DeSantis and their son were all in the address when Campbell arrived. Alesia had taken heroin and crack cocaine earlier that day, and the appellant had himself smoked a small quantity of crack cocaine some hours earlier. Campbell was in the property for around two hours. During that time the appellant made himself scarce. At some point Campbell let another man into the garden without Alesia's permission. After the man left, Campbell and Alesia argued and she asked him to leave. Campbell pulled a knife from his waistband and threatened to stab Alesia. The appellant was in a room next door while this took place. After repeatedly being told by Alesia to leave, Campbell, still holding the knife, went to the garden where he had left his bicycle. Alesia followed him to the garden gate. Campbell was seen by an upstairs neighbour to pull down the balaclava that he had been wearing as a hat, over his face. He again threatened to stab Alesia and slapped her, causing her glasses to fall off. By this time the appellant was either at the garden door or in the garden. Campbell pushed Alesia to the ground and twisted one of her legs. She resisted. He bent down towards her, still with the knife in his hand. He was kneeling and pointing the knife at her. He did not try to stab her but could be seen by an eyewitness to be hitting her, probably with his free hand. Witnesses heard Alesia shouting, apparently in distress. The prosecution case was that the Campbell did not in fact pose a lethal threat to Alesia. Alesia gave evidence to the effect that she thought that Campbell might not have realised his knife was pointing at her. The appellant went back into the kitchen of the flat and grabbed a large hunting-style knife that was kept in a sheath. He undid the button of the sheath and went back outside with the knife. Alesia was still on the ground, with Campbell leaning over her with his knife still in his hand, no more than a few metres from the kitchen door. It took the appellant no more than seconds to cover the five or six metres between the door and where she was lying, with Campbell leaning over her. The appellant had the knife in his hand, taken from the sheath. He reached Campbell, who straightened up. The appellant said nothing as he ran towards him. He made no attempt to tell Campbell to back off, nor did he use his knife, which was much larger than the one that Campbell had, to threaten Campbell to move away and leave the garden. Instead, the appellant threw himself at Campbell, who was now facing him. The appellant stabbed Campbell once in the upper front of his chest. The knife passed through the rib, penetrating the chest cavity and lung. It then went through a second rib before exiting through the back. The pathologist considered the force used to have been at the severe end of the scale. The appellant and Alesia went back inside the flat. She cleaned the knife. The appellant did not call the emergency services and simply waited for the police to arrive. Campbell exited the garden with his bicycle and walked around the corner. He was bleeding heavily and collapsed to the ground. A nearby witness called the emergency services. Campbell was treated by paramedics at the scene and in hospital, but later died that evening. The cause of death was the stab wound to his chest. The above facts are set out in the Learned Judge's Sentencing Remarks. Mr Kevin Dent KC, who appears on behalf of the appellant, does not suggest that the Learned Judge made any error in his assessment of the facts. On the contrary, the appellant's appeal is based on the facts as found by the Learned Judge. By the jury's verdict, and as the Learned Judge found, the appellant was guilty of murder on the basis that the jury were sure that whilst he was lawfully entitled to intervene in Alesia's defence, the appellant went too far in using excessive and disproportionate force that was unreasonable and it was therefore unlawful force, so that he was guilty of murder. When setting the appropriate minimum term, the Learned Judge first had to identify the appropriate starting point, having regard to Schedule 21 to the Sentencing Act 2020, before considering the aggravating and mitigating factors that existed so as to reach an appropriate minimum term. Under paragraph 4(2) of Schedule 21, the offence is normally to be regarded as sufficiently serious for the appropriate starting point in determining the minimum term to be 20 years if the offender took a knife or other weapon to the scene, intending: (a) to commit any offence, or (b) to have it available to use as a weapon, and used that knife or other weapon in committing the murder. Under paragraph 5 of Schedule 21, if the offence did not fall within paragraph 4, the appropriate starting point in determining the minimum term was 15 years. As a preliminary point, the statutory language is directed at the seriousness of the offending, as opposed to prescribing a particular starting point. The paragraphs of Schedule 21 indicate what would be a normal starting point for offences with particular features. In this regard, the provisions of Schedule 21 are not to be applied inflexibly, but so as to achieve a just result: see R v Height and Anderson [2009] 1 Cr App R(S) 117 at [29]: "We have lost count of the number of times when this Court has emphasised that these provisions are not intended to be applied inflexibly. Indeed, in our judgment, an inflexible approach would be inconsistent with the terms of the statutory framework. No scheme or guidance or statutory framework can be fully comprehensive, and any system of purported compartmentalisation or prescription has the potential to produce injustice. Even when the approach to the sentencing decision is laid down in an apparently detailed and, on the face of it, intentionally comprehensive scheme, the sentencing judge must achieve a just result." As the Learned Judge rightly noted in his sentencing remarks, the identification of an appropriate starting point is only part of the process of determination of the minimum term. It is then necessary to have regard to the aggravating and mitigating factors before setting an appropriate minimum term. The Learned Judge had the benefit of extensive written and oral submissions from the prosecution and the defence both in relation to whether this was a case falling within paragraph 4 or paragraph 5 of Schedule 21, and as to the mitigation that existed. As to the former, both the Learned Judge and this court have been referred to numerous authorities in relation to whether particular factual events have or have not been found to fall within paragraph 4 of Schedule 21, in particular in the context of whether the appellant "took a knife or other weapon to the scene", intending either to commit any offence or have it available to use as a weapon. In R v M, AM and Kika [2010] 2 Cr App R(S) 19 at [7], this court emphasised that: "… [I]t is always an aggravating feature of any case involving injury, and of course death, that the injury or death has resulted from the use of a knife or any other weapon. … The question for the sentencing judge in the end is not the compartmentalisation of the specific offence within this or that paragraph of the Schedule, but the proper judicial assessment of the appropriate sentence to reflect the facts of the individual case and its seriousness, and such mitigating features as there may be. Justice simply cannot be done by a mechanistic filling in of 'tick boxes' and unconsidered assignment of cases into compartments." The cases to which both the Learned Judge and this court have been referred include: R v Kelly; R v Bowers; and R v Balraj Singh [2011] EWCA Crim 1462 ; R v Folley [2013] EWCA Crim 396; R v Senechko [2013] EWCA Crim 2308; R v Dillon [2015] EWCA Crim 3 ; and Attorney General's Reference (R v Somers (Kerr Geoffrey)) [2018] EWCA Crim 2178. Many of the previous authorities were reviewed in Dillon , where at [32] it was stated: "We consider that the following emerges from the cases cited to us: (a) A knife taken from a kitchen to another part of the same flat or house, including a balcony ( Senechko ), will not normally be regarded as having been taken to the scene, even if a door is forced open ( Kelly ); (b) Conversely, if the knife is taken out of the house or flat into the street ( Bowers ), or into another part of the premises ( Balraj Singh ), or on to a landing outside a flat ( Folley ), it will normally be regarded as having been taken to the scene. (c) However, a starting point is not the same thing as a finishing point. The judgment in Kelly and others emphasises the importance, in cases of similar culpability, of avoiding major differences in sentence based on fine distinctions. As the Lord Chief Justice observed by way of example in the passage cited above, to make a distinction of ten years in the minimum term between the case of a man who kills his partner with a knife from the kitchen of their home and a man who kills his partner with a knife which he bought on the way home would not represent justice in anyone's assessment. If a case is only just within paragraph 5A, because a knife was taken from a kitchen and used to inflict a fatal wound a short distance outside the door of the flat or house, this principle may well lead to a minimum term of less than 25 years ( Bowers, Balraj Singh )." 23. In Attorney General's Reference (R v Somers (Kerr Geoffrey)) (supra), the court quashed an 18 year minimum term attached to a life sentence imposed on an offender following his conviction for murder and replaced it with one of 21 years. Notwithstanding that the offender had taken a sword only a short distance outside the premises into the garden, the court concluded that he had taken a weapon to the scene and used it to kill, within the meaning of paragraph 4, such that a starting point of 25 years was appropriate. In that case the offender (aged 29) knew that the victim was on his way to his house to confront him. He asked his girlfriend for a weapon and she gave him a sword. He left the house and hid in a hedge outside. As the victim went to the front door, the offender came up behind him and stabbed him. The judge concluded that the offender had not taken the sword to the scene within the meaning of what was then paragraph 5A (now paragraph 4), and applied a 15 year starting point. On the Reference it was submitted that the judge had chosen the wrong starting point, bearing in mind that the offender armed himself with a weapon, had lain in wait, and had used it to kill the victim, without warning. Relying on Kelly and Dillon , it was submitted that paragraph 5A (now paragraph 4) applied, providing a 25 year starting point. In the alternative, it was submitted that if the court concluded that a 15 year starting point was appropriate, a very substantial uplift was required to reflect the fact that the offender had taken a sword into the garden and had used it to kill. 26. The Reference was allowed. The paragraph 5A (now paragraph 4) starting point did not remove all flexibility from the sentencing process. The judge was still bound to ensure that the length of the sentence imposed properly reflected the offender's culpability. The court cited the passage in the judgment in Dillon , quoted above, that "If a case is only just within paragraph 5A, because a knife was taken from a kitchen and used to inflict a fatal wound a short distance outside the door of the flat or house, this principle may well lead to a minimum term of less than 25 years." The court concluded that it was clear that the offender had taken the sword to the scene and used it to kill within the meaning of paragraph 5A. He had been expecting trouble from the victim, had deliberately armed himself with a lethal weapon and then had waited for him to arrive. He had used that weapon to kill and the judge was entitled to find that he had the requisite intention. Accordingly, the appropriate starting point was 25 years. However, as the court had emphasised, this was only a starting point and it did not mean that the judge was obliged to impose a minimum term of 25 years. The judge was obliged to assess the offender's culpability, to reflect any additional aggravating factors not already factored into the 25 year starting point, and to reflect the mitigating factors. In the present case the sentencing judge expressed his conclusion in these terms: "In this case that issue came down to a consideration of whether the [appellant], in stepping back into the garden, taking the large knife he chose, which was easily within reach, and then going back outside to the garden and using it to commit a murder, is or is not a case in which a knife was taken to the scene. The prosecution submit it was; the defence submit it was not. Depending upon how I decide this issue, there can be a significant difference in the appropriate starting point to arrive at the minimum term of imprisonment to be served. It is very important to appreciate that the selection of an appropriate minimum term has a starting point as part of the process of determining the eventual term to be served. In plain English, the starting point is by no means necessary the finishing point. I have considered with care the submissions in writing and made helpfully to me this morning, of the prosecution and the defence. I have decided that on the facts of this case, a knife was taken by the [appellant] from the kitchen and used to inflict a fatal wound within a short distance of the garden door. I have determined the starting point in this case should be 20 years' imprisonment." We understand from these observations that the judge considered that the case was one within paragraph 4, on the basis that the knife was taken to the scene, but that he adjusted the starting point downwards from 25 years to 20 years in the context of the fact that the knife was taken only a short distance from the house into the garden. We say this because the judge then identified that there were no aggravating factors. It is common ground between the prosecution and the defence that the use of a knife was a serious aggravating factor which, had the starting point been 15 years, would have necessitated a significant increase from such starting point. It is clear, therefore, that the judge had taken into account the use of a knife when setting the starting point. On behalf of the appellant, Mr Dent KC submits that this not a case where the knife was taken to the scene for the purposes of paragraph 4, and that the sentencing judge erred in principle in concluding that it was. It is pointed out that the offence took place within the fenced garden area of the appellant's own private property, which garden was fenced off from the pavement and/or areas open to the public (unlike the case of Bowers ), and that no part of the offence took place in any area open to the wider public (unlike the factory floor in the case of Balraj Singh ), or in a (presumably communal) landing area, such as in Dillon . Reference is also made to the fact that the offence took place within the context of the appellant's partner Alesia having sought to remove Campbell from their private property, which Campbell had resisted, resulting in him becoming angry and violent. The consequence was that the appellant moved in a way that was said to be instantaneous and spontaneous, from the kitchen door to the garden area of his property. Mr Dent KC seeks to contrast the present situation with the facts of Attorney General's Reference (R v Somers) , in that here there had been no element of taking a knife and then lying in wait outside the property. It is said that the appellant did not move outside of the confines of a property in order to gain an advantage for a planned future attack. Reliance is also placed on the fact that, when he approached the deceased, the appellant only moved approximately five metres from the back door into the garden area. Mr Dent KC also submits that the offence was akin to a situation such as the balcony of a flat (i.e. such as in Senechko ) in that it was within a space that would have been outside of strict walls of the building, but within an enclosed area and entirely within the confines of a private property. He also submits that small distinctions such as bringing a knife to an enclosed balcony, as opposed to an enclosed garden, or stepping a few metres inside a flat, as opposed to stepping a few metres outside into a private garden, should not result in a ten year difference in the normally appropriate starting point, given that the culpability is similar. Mr Evans KC, who appears on behalf of the Crown, submits that the Learned Judge was right to conclude that what occurred was within paragraph 4 of Schedule 21: a knife taken to the scene and then used to commit murder, on the basis that, having seen the violent incident in the garden between the deceased and Alesia, the appellant left the confines of the garden in order to acquire a large knife from inside the flat. He then went into the kitchen and did acquire a large hunting knife, which he then took out of the flat into the garden, intending to have it available to use as a weapon. Then, having removed the knife from its sheath, he approached the deceased in the garden and, without warning, threw himself at the deceased and then with severe force used that knife to stab the deceased (per the pathologist), thereby intending to cause at the very least serious injury, and committed murder. We consider that the present case is very much a borderline case. Every case turns on its particular facts. For our part, on the particular facts as we have described, we consider that the appropriate starting point was 15 years on the basis that the appellant did not take the knife to the scene in the context of the very short distance travelled to what was a private garden. However, the taking of a knife from the kitchen to the garden and the use of the knife to commit the murder amounts to a very serious aggravating factor, which required a very substantial uplift from 15 years and amply justifies an increase in the starting point to 20 years. In such circumstances we reject the first ground of appeal. The second ground of appeal is that what are characterised as "the unusually high level of mitigating features" warranted a significantly larger reduction from the starting point than was given (the Learned judge reduced the starting point by six years from 20 years to 14 years, to reflect the available mitigation). In this regard, the appellant adopts all of the mitigating factors that were identified by the judge, as set out at pages 6 to 7 of the sentencing remarks, and his conclusion that: "There are … very powerful mitigating features available to the defendant which have the effect of significantly reducing the length of the minimum term from its starting point." The mitigating features were: (1) The fact that the appellant acted in defence of Alesia, albeit that he went too far and used unreasonable and therefore unlawful force; (2) The appellant's intention was to cause Campbell serious bodily harm, rather than to kill him; (3) There was an absence of premeditation or planning – the appellant's response was entirely spontaneous; (4) There was very significant provocation of the appellant who witnessed his former partner and mother of his child being assaulted in his own back garden by a masked man armed with a knife who was threatening to stab her; (5) The appellant's age (now 52); and (6) The appellant's previous good character, which went beyond the absence of convictions of any kind. The Learned Judge also had regard to the impact that the appellant's offending would have on his family and in particular upon his disabled son who suffers from a life-shortening condition and who will be deprived of regular contact with his father, with all the benefits that brings. The appellant also adopts what was said by the Learned Judge at page 9 of his sentencing remarks: "There can be little doubt that the scene that confronted the [appellant] that August evening last year must have been truly terrifying. His partner lying on the ground, her glasses removed, a masked man standing over her with a knife in his hand, threatening to kill her, as anyone would accept … the stuff of nightmares. In one of his interviews with the police, the [appellant] said … 'Had I done nothing and had he stabbed and killed her, my son would be without a mother'. The jury's verdict demonstrated in my judgment the conclusion they must have reached, that in doing what he did to defend Alesia, he used an unreasonable and unlawful degree of force which tragically took a young man's life. …" It is submitted that in the light of what is characterised as an unusually high level of mitigation in an unusual case, there should have been a greater reduction from the starting point. We agree that the mitigating factors in the present case justified a very substantial reduction from the starting point of 20 years. However, that is precisely what the judge did in reducing the sentence by six years (some 30 per cent) from the starting point of 20 years, to 14 years. We do not consider that the minimum term that was set for such serious offending was manifestly excessive. We reject the second ground of appeal. Accordingly, the appeal against sentence is dismissed. _______________________________ BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII