Ambersley & Anor, R. v [2025] EWCA Crim 442 (20 March 2025)

Neutral Citation Number: [2025] EWCA Crim 442 CASE NO: 202303012/03029 B4 IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE CENTRAL CRIMINAL COURT HIS HONOUR JUDGE DODD KC T20217077 Royal Courts of Justice Strand London WC2A 2LL 20 March 2025 B e f o r e : LORD JUSTICE STUART-SMITH MRS JUSTICE FARBEY HIS HONOUR JUDGE PATRICK FIELD KC ____________________ REX - v - SHIROH AMBERSLEY RASHID GEDEL ____________________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) ____________________ MR BRIAN ST LOUIS KC & MR ROBERT WARD appeared on behalf of the Appellant Ambersley MS MELANIE SIMPSON KC & MR LYNTON ORRETT appeared on behalf of the Appellant Gedel MR ANTHONY ORCHARD KC appeared on behalf of the Crown ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © MRS JUSTICE FARBEY: Introduction The appellants Rashid Gedel and Shiroh Ambersley appeal against sentence by leave of the full court. On 7 July 2023, in the Central Criminal Court before His Honour Judge Dodd KC, after a trial lasting 23 days, the appellants were convicted of the murder of Sven Badzak (count 1) and of wounding Bobby Moore with intent, contrary to section 18 of the Offences Against the Person Act 1861 (count 3). They were acquitted of the attempted murder of Mr Moore (count 2). On 3 August 2023, the judge sentenced Mr Gedel to life imprisonment on count 1, with a minimum term of 27 years less 875 days spent on remand in custody. He imposed a concurrent sentence of 12 years' imprisonment on count 3. At the same time, the judge sentenced Mr Ambersley to life imprisonment on count 1, with a minimum term of 27 years, less 869 days spent on remand in custody. He imposed a concurrent sentence of 12 years' imprisonment on count 3. A third man, Harvey Canavan, had pleaded guilty to manslaughter and unlawful wounding. He was sentenced to 7 years 6 months' detention. Three other men involved in the attack on Mr Badzak and Mr Moore have not been apprehended. Mr Gedel was aged 20 on the date of the offences. He was aged 22 on the date he was sentenced. Mr Ambersley was 19 years old on the date of the offences and 22 years old on the date he was sentenced. Facts On 6 February 2021 Mr Badzak and Mr Moore were stabbed on Willesden Lane in Kilburn. Mr Badzak was aged 22. Mr Moore was aged 16. They were friends. The Crown's case at trial was that the two men were walking along Willesden Lane talking about football. The appellants were part of a group of six males who had walked from Kilburn High Road into Willesden Lane. Five members of the group were on the pavement on one side of the road. Mr Gedel was on the other side, slightly behind Mr Badzak and Mr Moore. Mr Ambersley crossed the road to join Mr Gedel. The others in the group followed him. The appellants, together with an unidentified third man, were each carrying a knife and were the first members of the group to catch up with Mr Badzak and Mr Moore. The group of six men swiftly attacked Mr Badzak and Mr Moore, who were both stabbed. Mr Badzak ran a short distance before he fell to the ground where his attackers caught up with him. He was kicked and punched. Mr Moore ran to safety in Tesco. Police were called to Tesco, arriving at around 5.45 pm. Officers were flagged down by members of the public who were assisting Mr Badzak. An air ambulance was called. Sadly, despite attempts to resuscitate him, Mr Badzak was pronounced dead soon afterwards. Although the jury had the benefit of CCTV showing the lead up to the attack and its aftermath, there was no CCTV available of the attack itself. Mr Moore gave evidence but was unable to remember much about the person who stabbed Mr Badzak. Pathology evidence showed that Mr Badzak received four stab wounds in total: one to the front of the chest and three to the back. The three wounds to the back were consistent with the use of a single-edged bladed weapon such as a knife. The fatal stab was delivered by a weapon with severe force. The weapon had cut through skin, muscle and the breastbone. It penetrated Mr Badzak's heart. The pathologist said that the fatal stab wound could indicate the use of a weapon with two cutting edges but that it was not possible to assess the features adequately due to the medical intervention at the scene. The pathologist could not exclude the proposition that the wound was inflicted by a single-edged bladed weapon. She could not comment on the number of weapons used or on the number of assailants. Returning to events, the police found Mr Moore lying on the floor in Tesco, where members of staff were commendably attempting to give him first aid. He had been stabbed once in the back on the left-hand side. He was taken to hospital with life-threatening injuries to his left lung causing catastrophic bleeding. His mother was told that he had a 1 to 2% chance of survival. Surgeons opened his chest. The injuries were stitched to stop the bleeding. His heart stopped beating during the surgery so that he had to be resuscitated using internal compressions of the heart, adrenaline injections and electric shocks. He was transferred to the intensive care unit to recover but was in a coma for days. Mr Moore was discharged from hospital on 20 February 2021. His mother's victim personal statement, which was before the judge, describes how he has suffered irreversible nerve damage, which will affect future employment, and a chest injury which caused him to leave the carpentry profession. He suffers night terrors and flashbacks. He has withdrawn socially. He has a long scar on his chest which has not healed and still bleeds. He is unable to lie flat, struggles to raise his arms past his shoulders and has lost strength. Sentencing Remarks In his detailed and careful sentencing remarks, the judge described the attack as brutal, savage and swift. He found that each of the appellants had taken a knife to the scene and that they had each used a knife to stab or to provide support for the attack generally. It was, on the face of it, an entirely motiveless and random attack on two wholly innocent young men who were strangers to the group of attackers. The judge observed that neither of the appellants had cooperated with the probation service after trial, so that there were no pre-sentence reports. The judge considered older reports in relation to each appellant and a letter from Mr Gedel's social worker. As regards Mr Gedel, the judge noted that he had thirteen previous convictions, including four that related to the carrying of knives. He noted that, following Mr Gedel's arrest, a hunting knife was found in his bedroom. That knife was not linked to the stabbings, but the judge observed that it was notable that Mr Gedel had retained a dreadful weapon. As regards Mr Ambersley, the judge noted that he had ten previous convictions, four of which were related to the possession of knives. The judge informed the appellants that each would serve a life sentence for the murder of Mr Badzak. He identified the appropriate starting point for the minimum term under Schedule 21 to the Sentencing Act 2020 as being 25 years, which is the normal starting point under paragraph 4 of the schedule for an offender who takes a knife to the scene. He observed that the minimum term needed to be increased to reflect the overall seriousness of the appellants' offending including the section 18 offence, for which a concurrent sentence would be passed. The judge considered aggravating factors. It was a group attack, in which both of the appellants had leading roles, and where at least three of the group of six were armed with knives. The attack was carried out on a busy suburban road. Both of the appellants had previous convictions that had involved the carrying of knives. These aggravating factors, together with the attack on Mr Moore, required an increase from the statutory starting point to 28 years. The judge considered mitigating factors. He rejected the submission on the appellants' behalf that there was an intention to cause serious bodily harm rather than to kill. The attack on Mr Badzak was sustained. Following the stab to the chest, they both participated in a continuing attack upon him, which included further stab wounds to his back as he tried to escape and as he lay on the ground dying. There were no clear signs of significant remorse. The judge considered that the significant mitigating factor was, in the case of each appellant, his age. Relying on a 2016 pre-sentence report and the social worker's letter, the judge accepted that Mr Gedel had had a difficult childhood. He had been placed in care at an early age because his mother had significant mental health problems and his father had physically abused him. The judge said that it was not hard to feel compassion and sorrow at Mr Gedel's start in life but it was no excuse for what he did. In relation to Mr Ambersley, there was little mitigation other than his age. Weighing the mitigating factors, the judge decided that the minimum term that each appellant should serve for Mr Badzak's murder would be 27 years, less the days spent in custody. As regards the section 18 offence, the judge applied the relevant sentencing guideline. He concluded that the offence fell within category 1A in the guideline, meaning that both culpability and harm were high. The starting point for a category 1A offence is 12 years' imprisonment. The category range is 10 to 16 years. In relation to both appellants, the judge found that aggravating factors should lead to an upward adjustment from the starting point to 14 years. However, in light of mitigation, he reduced the sentence to 12 years, to be served concurrently with the life sentence. In this way the judge reached the overall sentences that we have already described. We turn to consider the individual appeals. Gedel The parties' submissions On behalf of Mr Gedel, Ms Simpson KC, with Mr Orrett, submits that the sentence on count 1 was wrong in principle for four main reasons. First, it is submitted that the judge was wrong to find that Mr Gedel had an intention to kill. Such a finding was not available on the evidence. The judge was bound on the evidence to conclude that Mr Gedel had an intention only to cause serious bodily harm, which is a mitigating factor within Schedule 21. Secondly, Ms Simpson contends that the judge had wrongly implied in his sentencing remarks that the attack was premeditated when there was no evidence to that effect. Thirdly, Ms Simpson emphasises that on the day of the offences the appellant was living alone in local authority accommodation, away from friends and family. His mother had recently been committed to hospital owing to mental health problems. The letter from Mr Gedel's social worker shows that between May 2014 and April 2021 Mr Gedel had been accommodated in fourteen different placements. Ms Simpson points out that the 2016 pre-sentence report described him as a troubled, "looked after" child, with an unsettled life, lack of familial security, and a history of poor impulse control and decision making. In light of this evidence Ms Simpson submits that the judge failed to give proper weight to Mr Gedel's young age and very troubled background. She submits that the reduction of one year was too little, particularly when the judge was willing to make a two-year reduction for mitigation in relation to the sentence for the section 18 offence. Fourthly, Ms Simpson says that the judge failed to set out clearly how he had reached the decision to impose a 27-year minimum term. On behalf of the respondent Mr Orchard KC submits that the judge, having conducted the trial and heard the evidence, was entitled to conclude that Mr Gedel had an intention to kill. He observes that the judge did not say that the murder was premeditated but had, on the contrary, emphasised that the attack was "out of the blue". He submits that the judge properly weighed Mr Gedel's age as a mitigating factor and made an appropriate deduction for his personal circumstances. There was nothing unclear about the sentencing remarks or the way that the judge had approached his task. Discussion No issue is taken with the statutory starting point of 25 years. Nor can it properly be in dispute that the judge was entitled to increase the minimum term to reflect Mr Gedel's attack on Mr Moore. As for the factual basis of the judge's sentence, he had presided over a lengthy trial. He had seen and heard the evidence. He was best placed to determine factual questions and to reach conclusions on factual matters, providing that his findings were in accordance with the case put by the prosecution and that he honoured the jury's verdicts. Following well-established principles, this court will not interfere with a finding of fact made following a trial provided that the judge has properly directed himself or, exceptionally, where the court is satisfied that no reasonable finder of fact could have reached that conclusion ... R v Cairns [2013] 2 Cr App R (S) 73 , para 10). The prosecution could not identify the attacker who struck the fatal blow. However, the prosecution case was that both appellants intended to kill Mr Badzak in an attack that was a joint enterprise. In order to prove this case, the prosecution did not have to prove who inflicted the fatal wound. The judge was entitled to find that Mr Badzak was killed as a result of a joint enterprise knife attack that continued even as Mr Badzak lay dying on the ground. We agree with Mr Orchard that the inescapable inference to be drawn from the nature and extent of the attack is that Mr Gedel intended that Mr Badzak should be killed. The judge's conclusion was reasonable and there are no grounds for this court to take a different view. We reject the submission that the judge treated the murder as premeditated. Ms Simpson relies on the passage of the sentencing remarks in which the judge said that the appellants had "spotted" the two victims and "decided to confront them and clearly to attack them". Read fairly and in the context of the sentencing remarks as a whole, this brief passage does not suggest premeditation. It suggests no more than the obvious point that the appellants took a decision to launch an attack on the victims, which is precisely what they did. The judge's comments that the attack was "mystifying" and that it came "out of the blue" plainly show that he did not regard the attack as premeditated. There is no reason to suppose that the judge increased Mr Gedel's minimum term on grounds of premeditation. As we have said, the judge reduced the minimum term by one year to take account of mitigating factors, which in the context of Mr Gedel can only mean his age and very difficult life circumstances. The 2016 pre-sentence report and the social worker's letter show that Mr Gedel suffered neglect from his mother and excessive physical punishments from his father. He spent many years in local authority care. His attendance at school was extremely poor. We accept Ms Simpson's submission that his age and personal circumstances were substantial mitigation for his offending. Nevertheless the question for this court is whether the overall sentence was manifestly excessive. The starting point of 25 years reflects the seriousness of a murder carried out with a knife brought to the scene. The judge was, however, sentencing Mr Gedel not only for the murder of Mr Badzak but also for the very serious attack on Mr Moore, which taken on its own warranted a substantial sentence on any view. The judge was entitled and right to conclude that the seriousness of the assault on Mr Moore warranted an upward adjustment from the starting point. In addition, the judge was entitled to treat Mr Gedel's previous convictions as an aggravating factor warranting a further upward adjustment. The judge adjusted the starting point upwards from 25 to 28 years to account for these features (ie, the section 18 offence and the aggravating features identified by the judge). That was, in our judgment, an insufficient adjustment and, before turning to the appellant's personal mitigation, a notional sentence in the region of 29 or 30 years was called for. Turning to the personal mitigation upon which Ms Simpson relies, we note that if the appellants had been under 18 the starting point under Schedule 21 would have been 23 years and so only two years lower than for an adult offender. While we recognise that an appellant does not "fall off a cliff" on reaching 18, we consider that this provides some context for the submission by a 20-year-old that his age should be reflected in a reduction of his sentence on account of his youth. Viewed in isolation, we would accept that a combination of his age and other personal mitigation might justify an adjustment of somewhat more than two years. However, in considering whether the sentence passed by the judge was manifestly excessive, we are bound to take into account our view that the upward adjustment he had made was insufficient. But for his age, the judge would have been entitled to impose a minimum term well in excess of 27 years. Even given Mr Gedel's age, the minimum term of 27 years is not manifestly excessive or wrong in principle. As for the criticism of the clarity of the sentencing remarks, though we consider that his upward adjustment was inadequate for the reasons we have given, we see no error in the way the judge approached his conclusions and his reasoning is readily understood. For these reasons, the grounds of appeal in Mr Gedel's case fail. Ambersley The parties' submissions On behalf of Mr Ambersley, Mr St Louis KC, with Mr Ward, makes essentially four submissions. First, he submits that the judge was wrong in principle to sentence Mr Ambersley on the basis that he was in possession of a knife. In circumstances where the prosecution was not able positively to assert that he had a knife, and where there was no solid evidential foundation for such a conclusion, it was not open to the judge to sentence him on that basis. Secondly, Mr St Louis submits that it was not open to the judge to sentence Mr Ambersley on the basis that he had an intention to kill. Such a conclusion was inconsistent with the evidence and with the jury's verdicts on counts 2 and 3. As regards the evidence, Mr St Louis emphasises that the judge relied on the sustained nature of the attack upon Mr Badzak as proof of intention to kill. He submits that the judge was obviously mistaken in treating Mr Ambersley as a participant in a sustained attack such that this court can interfere with the judge's assessment ( R v Williams [2019] 2 Cr App R (S) 15, para 4). As regards the jury's verdicts, Mr St Louis submits that Mr Ambersley's acquittal on count 2 and his conviction on count 3 demonstrate that the jury were not sure that Mr Ambersley had an intention to kill Mr Moore. There was no evidence to suggest that Mr Ambersley held any different intention towards Mr Badzak, who was equally a stranger and equally the victim of a swift joint enterprise attack. The implication to be drawn from the jury's verdicts in relation to Mr Moore was that Mr Ambersley had no intention that Mr Badzak be killed. Thirdly, Mr St Louis submits (albeit faintly) that the judge was wrong in principle to categorise the section 18 offence as involving category 1 harm. He submits that it is well established that not every wounding that causes an injury that might, if left untreated, lead to death should be regarded as life threatening under the guideline. He relies in this regard on R v O'Bryan [2022] 1 Cr App R (S) 53, paras 34-35, and R v McGowan [2023] EWCA Crim 247 , para 44. He emphasises that category 1 harm should be reserved for cases of exceptional seriousness, even within the class of section 18 offences. He submits that the medical evidence before the judge showed that Mr Moore had made a satisfactory physical recovery, with only temporary physical disability. It had not been open to the judge to conclude that Mr Moore had suffered harm of exceptional seriousness of the sort contemplated by category 1 of the guideline. He submits that the offence fell within category 2A, with a starting point of 7 years and a range of 6 to 10 years. Fourthly, Mr St Louis submits that the judge afforded insufficient weight to Mr Ambersley's young age. The overall sentence was accordingly manifestly excessive and wrong in principle. Mr Orchard submits that the judge was entitled to conclude that Mr Ambersley had a knife as it was put to him as part of the prosecution case that he was one of the "front three" who possessed a knife and participated in the initial confrontation. He emphasises that the judge noted that the attack on Mr Moore involved only one blow whereas the attack on Mr Badzak involved multiple blows. Given this distinction between the two attacks, the judge was entitled to find that Mr Ambersley intended to kill Mr Badzak but not to kill Mr Moore. Mr Orchard submits that the injuries to Mr Moore were plainly life threatening. Not least Mr Moore suffered catastrophic bleeding which required surgery on his chest during which his heart stopped beating. He submits that the overall sentence imposed by the judge took account of Mr Ambersley's age and was just and proportionate. Discussion As in Mr Gedel's case, no issue is taken with the statutory starting point of 25 years. Nor can it properly be in dispute that the judge was entitled to increase the minimum term to reflect Mr Ambersley's attack on Mr Moore. As we have already said, the judge was best placed to determine factual questions and to reach conclusions on factual matters. It was unarguably part of the prosecution case that Mr Ambersley was carrying a knife. It was expressly put to him in cross-examination that he did so. Mr Moore told the jury that he was approached by three males, all armed with knives, and the CCTV footage shows that the appellants approached Mr Moore and Mr Badzak before the other attackers did so. We agree with Mr Orchard that the judge could be sure, and that he could properly conclude, that Mr Ambersley was one of those carrying a knife. There is no reason for this court to interfere with the judge's finding. There is no lack of logic in the judge's conclusion that, despite the acquittal on count 2, Mr Ambersley intended that Mr Badzak be killed. Even in relation to random violence such as appears to have been the case here, it is not a foregone conclusion that an attack on two people involves the same intention towards each of them. The intention of the attackers towards each man was a matter of fact to be decided in accordance with the evidence. On the evidence that the jury had seen and heard, the judge drew a proper distinction between the sustained attack on Mr Badzak and the single blow to Mr Moore. That distinction supported the judge's view that Mr Ambersley intended that Mr Badzak be killed irrespective of his intention when attacking Mr Moore. Mr St Louis contends that the evidence was not capable of proving to the criminal standard that Mr Ambersley participated in more than the initial attack before Mr Badzak tried to run away. He relies on the fact that there came a time when Mr Ambersley was in the lead of those chasing Mr Moore. He submits that in the absence of CCTV capturing the attack on Mr Badzak, there can be no sure inference that Mr Ambersley participated in any part of the attack between the initial assault and the time that he pursued Mr Moore, when no question of his further participation in an attack on Mr Badzak could possibly arise. As skilfully as this submission is advanced, we consider that it is, upon analysis, an attempt to ask this court to remake findings of fact which it was the responsibility of the judge to determine. In his oral submissions Mr Orchard took the court to CCTV evidence of Mr Moore running down Willesden Lane towards Tesco and the appellants following him. The CCTV shows that there was a ten-second gap between Mr Moore running past the CCTV camera and Mr Ambersley chasing him. By reliance on inference from this 10-second gap and on evidence from an eyewitness who had seen five or six people encircling someone on the ground (ie, enough to be the whole group including Mr Ambersley before he started to pursue Mr Moore), the prosecution case was that the jury could be sure that Mr Ambersley took at least some part in more than the initial attack. On the basis of this evidence, it cannot be said that the judge misdirected himself or that he reached a conclusion on Mr Ambersley's intention that was not open to him on the evidence. That Mr Ambersley tried to hunt down Mr Moore does not mean that he did not intend that Mr Badzak would be killed. The conclusion that Mr Ambersley intended to kill is unimpeachable. We reject Mr St Louis's submission on count 1. In relation to count 3, the rubric of the guideline makes the point that by their nature all offences falling within it will involve "really serious harm", which can be physical, psychological or wounding, and that the court should assess the level of the harm caused with reference to the impact on the victim. Even in this context, life-threatening injury falls within category 1 harm. There is nothing in the reasoning in O'Bryan or McGowan to suggest otherwise, or to suggest that truly life-threatening injury should be downgraded to category 2, which would contradict the plain wording of the guideline. We reject the submission that an injury that caused Mr Moore's heart to stop beating, and which was described to his mother as almost certainly fatal, was not life threatening. We are in full agreement with the judge that the attack on Mr Moore was a category 1A offence. The judge accepted that Mr Ambersley's age was a mitigating factor and weighed it in the balance when considering the minimum term. Mr Ambersley had in truth no other real mitigation. The question for this court is whether Mr Ambersley's overall sentence was manifestly excessive. As we have said, the starting point of 25 years reflects the seriousness of a murder carried out with a knife brought to the scene. The judge was however sentencing Mr Ambersley not only for the murder of Mr Badzak but also for the very serious attack on Mr Moore. Even taking account of Mr Ambersley's age, the judge was entitled to conclude that the seriousness of the assault on Mr Moore warranted an upward adjustment from the starting point. In addition, the judge was entitled to treat Mr Ambersley's previous convictions as an aggravating factor warranting a further upward adjustment. For reasons similar to those we have given in Mr Gedel's case, a minimum term of 27 years was warranted in the context of the seriousness of the attack on Mr Moore and Mr Ambersley's history of knife crime. As in the case of Mr Gedel, we see no error in the way the judge reached his conclusions or in his reasoning. Conclusion For these reasons, neither the sentence of Mr Gedel nor the sentence of Mr Ambersley was manifestly excessive or wrong in principle. Both appeals are dismissed. Finally, we observe that the judge stated the number of days to be deducted for time already spent in custody but did not himself calculate the resulting minimum term. In R v Sesay [2024] EWCA Crim 483 , this court stated that it is highly desirable that sentencers should do the arithmetic and pronounce the resulting minimum term. The judge should have done so in relation to both appellants. We shall therefore pronounce the sentences in the terms suggested in Sesay . In the case of Mr Ambersley, the overall sentence is 24 years 226 days. In the case of Mr Gedel, the overall sentence is 24 years 220 days. We express our gratitude for the excellent written and oral submissions that we have received from all parties. LORD JUSTICE STUART-SMITH: Can I echo what my Lady said: we are grateful to all concerned for the quality of the submissions we have had to grapple with. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII