No. 2008/00354/A5

Neutral Citation Number: [2009] EWCA Crim 1313
IN  THE  COURT  OF  APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London WC2

Thursday  11  June  2009

B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)

MR  JUSTICE  COLLINS

and

MR  JUSTICE  OWEN
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ATTORNEY GENERAL'S REFERENCE No. 5 of 2009

UNDER  SECTION  36  OF

THE  CRIMINAL  JUSTICE  ACT  1988

R E G I N A

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ULYSSES  CARBON
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Mr M Heywood appeared on behalf of the Attorney General
Mr D Nathan QC appeared on behalf of the Offender
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J U D G M E N T
Thursday  11  June  2009

THE LORD CHIEF JUSTICE:
1.  This is an application by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court for review a sentence which she considers to be unduly lenient.  We grant leave.

2.  The offender is Ulysses Carbon.  He is aged 31, having been born on 28 August 1977.  He is not a man of previous good character.

3.  On 22 December 2008, following a trial at the Central Criminal Court before His Honour Judge Hone QC and a jury, the offender was acquitted of murder and convicted of manslaughter.  On 23 December 2008 he was sentenced to five years' imprisonment.  An order was made, in accordance with statute, that the period spent on remand prior to conviction should be taken into account in determining the time to be served.

4.  The offence took place on 4 August 2007.  The facts are complicated and we suspect that even by the end of the trial not every feature had emerged so that anybody could be entirely clear about everything.

5.  The victim, Anthony Kearney, had a nickname "Boogaloo".  He was 34 years old when he died.  

6.  The offender, Mark Belafonte and a third man spent the evening of 3/4 August in "The Warehouse" nightclub in east London.  While they were at the club Belafonte received a telephone call from the deceased.  The deceased arrived shortly afterwards with two of his friends, Knott and Smith.  Another man, Crossley, joined the group which now totalled seven.

7.  The group left the club when it closed at 6am.  Belafonte travelled back to his flat at an address in Forest Road.  With him went the offender, the deceased and Crossley.  The other three did not go there directly.  They first went on to a party somewhere else and then went to the address in Forest Road.  By 7am the group of seven had once again assembled together.  Most, if not all, of them had been drinking and taking drugs during the course of the previous evening.  They continued to take drink and/or drugs when they arrived at the flat.  Subsequent back analysis of the offender's blood revealed that at the time of the incident to which we shall come, he was suffering from the effects of cocaine and cannabis consumption and that his blood-alcohol level was about three times the statutory driving limit.  He said in evidence that he was aware that a combination of alcohol and drugs would contribute to a state of paranoia.

8.  The group became increasingly rowdy.  Belafonte, whose flat they were in, became concerned about the effect on his neighbours.  He repeatedly asked the group to keep the noise down, apparently with little effect.  Some of the group began to squabble with each other.  That raised the level of noise.  The offender went to the kitchen in the flat and returned to the room where the noise was at its loudest carrying a knife which, according to the evidence, he waved about.  At this stage he plainly used the knife as some kind of threat to try to persuade the group to be a little less rowdy.  Thereafter he put the knife down and it played no further part in events until at a much later stage when he picked it up again.  In other words, he had not armed himself with a knife and retained it as a weapon.  He had obtained the knife, used it for the purpose of trying to persuade, cajole, encourage or threaten a less noisy atmosphere, and then he put it down.

9.  Eventually, at about 7.15am, Belafonte suggested to everyone that it was time to leave.  Smith was the first to leave, and Knott went with him.  As they left the flat the deceased made a comment about the fact that Knott owed money to Belafonte.  The offender jumped out of his seat and ran out of the flat after the pair who had just left.  This was not his fight or his trouble and he should not have involved himself in it.  Those who had remained inside the flat could hear shouting from outside as the offender and the deceased confronted Knott.

10.  Outside the offender demanded from Knott the money that was owed to Belafonte and worked himself up "into an irascible state".  A fight began.  It was not serious.  It was described at trial as a "handbags fight".  In the end the offender pushed or punched Knott with a blow that was not significant.  The confrontation was broken up by Crossley and Smith.  When Smith intervened, the offender confronted Smith about the debt.  The offender went to a car at the other side of the road.  He returned carrying a large metal took and challenged Smith.  He removed Smith's car keys from its ignition and said that if Knott would not pay the debt owed to Belafonte, then Smith would have to pay it.  Smith telephoned the police.  When sirens could be heard in the distance the car keys were returned to Smith and the offender backed off.  That should have been the end of it.

11.  However, Belafonte and the deceased had followed the others outside.  Belafonte wanted the problem to be cleared up by the deceased.  He and the deceased began to row.  In the course of the row Belafonte knocked the drink being carried by the deceased from his hands.  Knott and Smith left the scene.  Those who had been outside returned to the flat.  

12.  The atmosphere was hostile and once the group returned back into the flat their mood did not improve.  A row began between Belafonte and the deceased.  At first the offender tried to make peace between them.  The noise, however, continued to grow.  With concern about his neighbours, Belafonte told everyone to leave.  According to Belafonte (although the evidence was not entirely clear and in many respects was in dispute), he left the room to look for his dog which had escaped.  According to him, he was away from the flat when the fatal injury was caused.  That is important because of the nature and conduct of the offender's defence at trial. 

13.  At about 9.30am the offender, without reason or warning, picked up the knife that he had carried to the room very much earlier, leant forward and stabbed the deceased in his leg.  The internal wound track passed directly backwards and downwards.  It was 17cm in length.  The blade passed through the muscle and severed both the femoral artery and the femoral vein before it exited on the postero-medial aspect of the thigh and entered the seat of the sofa beneath the leg.  It plainly was a very heavy blow.

14.  There was instant consternation at what had happened.  Belafonte and Crossley began to administer first aid.  The offender remained at the scene.  He tried to assist in the use of a tourniquet in the hope that the bleeding might be stemmed.  He repeatedly asked if the deceased was going to be all right.  In the panic that followed, no one had the sense to call an ambulance straightaway.  They sought help from different sources, but in the end it was clear that the deceased could not be taken to hospital by car.  By the time the emergency services were contacted and the police and paramedics arrived on the scene, there was nothing that could be done to assist the deceased. 

15.  When the police arrived, Crossley left the scene.  The offender remained.  Although we note the offender's attempt to help the injured man, when he was spoken to by the police he told them a series of lies: that the deceased had fallen on a glass, and that he (the offender) had merely been a passer-by who had stopped to offer help.  Those lies continued in subsequent interviews.  He then sought to blame Belafonte.  He identified him as the man responsible for inflicting the fatal wound.  That was a course in which he persisted in his evidence at trial.

16.  The offender was examined by a forensic medical examiner.  A number of minor injuries were recorded, but there was no injury corresponding to any complaint which he was at that time advancing.

17.  The offender has a number of previous convictions, the most serious of which was when he was much younger.  In November 1996, at the Central Criminal Court, he was convicted of offences of robbery or attempted robbery, unlawful wounding and assault with intent to rob, for which he was sentenced to a total of 30 months' detention in a young offender institution.  He was released from that sentence in October 1997.  In October 1998 he was sentenced to three months' imprisonment at the magistrates' court for an offence of assault occasioning actual bodily harm.  His record of offending gradually became less serious.  In 2002 and 2006 he was before the court for offences of using threatening, abusive or insulting words or behaviour with intent to cause fear or provocation of violence, for which non-custodial sentences were imposed.  He was last before the court for driving with excess alcohol and other driving offences.  The decline in the level of criminality was no doubt due to the fact that he had become involved in a long-standing relationship.

18.  The trial judge addressed the question of whether or not the offender was genuinely remorseful for what he had done.  During the course of mitigation he indicated to leading counsel who appeared for the offender that he could find no evidence of remorse.  In his sentencing remarks the judge said:

		".... there is some merit in what [leading counsel] said, namely, that your remaining at the scene had some form of indication of remorse ...."

However, the judge indicated that it was an aggravating feature that the offender chose to blame his cousin and persisted in blaming his cousin throughout the trial as the man responsible for the killing.  For what it is worth, we doubt whether there is any evidence of true remorse.  There may well be some regret that the offender had become involved in the incident, but we doubt that he has any insight or understanding of the impact on the deceased's family.

19.  It is contended on behalf of the offender that the sentence, if lenient, was not unduly so; but if that submission is not accepted, that it would be inappropriate in all the circumstances of the case to increase the sentence.

20.  It is important to emphasise that, notwithstanding the use of the knife, the verdict, which the judge had to honour and which we, too, have to honour, was manslaughter, not murder.  The basis for that verdict on any analysis of the directions given by the judge was that the jury was not satisfied that the prosecution had proved the necessary intent for murder, that is that the offender intended to kill or to do really serious bodily harm at the moment when he used the knife on the deceased. 

21.  This was manslaughter which resulted from drunken (or post-drunken) but deliberate violence with a dangerous weapon.  It is therefore an offence which falls within the higher range of culpability.  On the other hand, it is not a case in which it would be right to approach the sentencing decision on the basis that the offender had armed himself with the weapon, kept it on him and then used it.  Although he had taken it to the scene, he had put it down and had no further use for it.  Therefore the level of culpability, although high, is not at the highest.

22.  However, the fatal blow was inflicted with a large knife.  The reason the offender had taken it to the room in the first place was to provide a method of reinforcing the request for a reduction in noise.  Although it was not used at that time to cause any injury to anyone, it was a dangerous thing to have done.

23.  Thereafter, the offender was in the mood for trouble.  However, it is difficult to see that there were very many among the group of seven who were not in one way or another in a troublesome mood.  The incident we have described was long-drawn-out and unpleasant.  There were different facets to it, including the aspect that, for a time at any rate, the offender sought to make the peace.  On the other hand, his interventions were unnecessary and, at the lowest, likely to be productive of an angry response or to contribute in a provocative way to the irritation of others.  He involved himself in other people's business in a scene which had already reached boiling point.

24.  We cannot understand, and we do not think the jury could have understood, what it was that the deceased had done to the offender which led the deceased to be the victim of this ultimately fatal knife attack at the offender's hands.  We accept Mr Nathan QC's persuasive submission that on their verdict it looks as though the jury accepted that it was a blow struck in frustration and anger, and represented a loss of self-control on the spur of the moment.  Although the offender offered help at the scene, the issue of remorse cannot be resolved in his favour.  He lied repeatedly and then sought to blame someone who was entirely innocent for his own actions.  He had no mitigation arising from good character and there could be no possible discount for a guilty plea.  

25.  We have reflected on the decisions drawn to our attention and we have reflected, too, on the level of sentence which would have been imposed if there had been no available discount for a guilty plea and the offender had deliberately blamed somebody else for actions for which he was responsible if this had been a case of a "one blow manslaughter", where the cause of the fatal injury was the blow itself.  This is a case of manslaughter at an altogether more serious level.  It was not a minor incident of violence which ended in death.  It was an incident of major violence, at least in part consequent on the consumption of drink and/or drugs, or their after effect.  At the same time it was not, as counsel for the Attorney General has accepted in the course of his helpful submissions, at the highest range of culpability.

26.  We recognise two further features.  First, the trial judge had the advantage, which we do not, of presiding over the trial and being aware of all the various subtle refinements and nuances of the evidence.  That said, we consider that this sentence was unduly lenient and significantly so.  It is unfortunate that the sentencing decisions shown to the judge were not those to which our attention has been drawn.

27.  The second feature we note is that the offender's release date has already been made known to him.  The material shown to us indicates -- and it is to his credit -- that he has made positive efforts to rehabilitate himself while he has been serving the sentence imposed upon him.

28.  Taking all these features into account, we have concluded that the sentence was unduly lenient and should be increased.  However this case is viewed, it was very serious.  The sentence of five years' imprisonment will be quashed and it will be replaced by a sentence of eight years' imprisonment.