Delucca & Anor, R. v

On an appeal against conviction, the question is whether, having considered all the evidence, a properly directed jury could safely be sure of guilt. It is insufficient that a different verdict was available on contested evidence. An unwithdrawn confession, unsupported by any evidence that it was false, may provide compelling proof despite inconsistent eyewitness descriptions.

When correcting an error in the structure of an imprisonment for public protection sentence, the appellate court may preserve the intended minimum term if the overall totality is not increased. A notional determinate figure used solely to explain the minimum term is not itself a sentence and need not be constrained by the statutory maximum for the offence.

Rahuel Delucca was convicted in the Crown Court at Bradford of possessing a firearm with intent to cause fear of violence. The prosecution relied principally on his admission that he had fired at a car, together with DNA evidence. Several eyewitness descriptions of the gunman differed from Delucca’s appearance and from one another. Delucca appealed on the ground that the conviction was unsafe.

Delucca also sought leave to appeal against an imprisonment for public protection imposed under the Criminal Justice Act 2003. The sentencing structure included terms for two other firearm offences which were not specified offences.

Marcus Rhoden had pleaded guilty to attempted murder and received imprisonment for public protection. He sought leave to challenge the minimum term, contending that a sentence consistent with a prior indication under R v Goodyear [2005] EWCA Crim 888 had failed to reflect his proposed cooperation against Delucca.

1. Delucca’s conviction appeal was dismissed. The appellate court’s task was not to decide whether the eyewitness evidence might have supported a different verdict. It was to assess all the evidence and determine whether a properly directed jury could safely be sure of guilt. Although the preponderance of eyewitness evidence suggested that the gunman was black and of Afro-Caribbean origin, such evidence was inherently affected by the sudden and alarming circumstances of the shooting.

   Delucca’s own admission was the most powerful evidence. He had never withdrawn his confession to the Alder Street shooting and adduced no evidence that it was false. The DNA evidence also showed that he had handled the firearm. Taken together, the evidence provided a proper basis for the jury’s verdict.

2. Delucca’s sentence appeal was allowed on a technicality, without reducing the period to be served. The terms imposed for the two additional firearm offences could not be treated as minimum terms within an imprisonment for public protection because those offences were not specified in Schedule 15 to the Criminal Justice Act 2003. The court noted that consecutive imprisonment for public protection sentences were undesirable under R v O'Brien and Others [2007] 1 Cr App R(S) 442.

   The court retained the imprisonment for public protection under section 225 on count 1 and its minimum term of five and a half years, less time on remand. It could increase the notional determinate figure from eight to 11 years without offending section 11(3) of the Criminal Appeal Act 1968, because totality was unchanged. The notional figure merely explained the minimum-term calculation; it was not a sentence and therefore did not exceed the ten-year maximum under section 16A of the Firearms Act 1968. The three-year terms on counts 7 and 8 were ordered concurrently with each other and with the imprisonment for public protection.

3. Rhoden’s application for leave to appeal against sentence was refused. His plea was entered only on the second day of trial, yet the minimum term already reflected a generous 25 per cent discount. His proposed assistance to the prosecution had remained early and vague, and he was never required to make a statement or give evidence. The notional determinate sentence of 18 years was not arguably manifestly excessive.

• Court of Appeal (Criminal Division): Delucca’s conviction appeal was dismissed. His sentence appeal was allowed technically to correct the sentencing structure while preserving the minimum term. Rhoden’s renewed application for leave to appeal against sentence was refused.
• Crown Court at Bradford: Delucca was convicted of possessing a firearm with intent to cause fear of violence and received imprisonment for public protection under the Criminal Justice Act 2003. Rhoden pleaded guilty to attempted murder and was sentenced to imprisonment for public protection with a minimum term of six years and nine months.