Hussain & Ors, R v

In sentencing for attempted murder, the court must have regard to the sentence that would have been appropriate had murder been completed. A starting point derived from a murder of particularly high seriousness is not appropriate where the facts do not justify that characterisation.

The sentencing exercise remains fact-sensitive. In particular, the offenders’ role in a joint enterprise, absence of premeditation and the statutory certainty of release may materially affect the proper determinate sentence. Sentencing for wounding with intent under Offences against the Person Act 1861 is also driven principally by the individual facts, rather than by a selective comparison with other sentences.

The three appellants were convicted after trial at the Central Criminal Court of attempted murder, wounding with intent and violent disorder arising from a group attack. A principal victim suffered grave and permanent head injuries after being struck with a dar; another suffered a serious head wound. None of the appellants was found to have wielded the weapon. Their liability rested on joint enterprise.

On 11 January 2008, the trial judge imposed concurrent sentences of 18 years for attempted murder, 10 years for wounding with intent and four years for violent disorder. The appellants appealed, with leave of the single judge, against the attempted-murder and wounding sentences. The central issue was the proper approach to sentence in the light of the appellants’ role and the seriousness of the attack.

1. Appeals allowed as to sentence. The court quashed the 18-year sentences for attempted murder and substituted 15 years’ imprisonment for each appellant. It quashed the 10-year sentences for wounding with intent and substituted eight years’ imprisonment. The sentences remained concurrent. The four-year sentences for violent disorder were unchanged.

2. The trial judge had wrongly treated R v Ford [2006] 1 Cr App R(S) 36 as the appropriate sentencing route. That authority concerned cold-blooded shootings and a starting point based on murder of particularly high seriousness under Criminal Justice Act 2003, Schedule 21, paragraph 5(1). Although the present attack was shocking, it did not fall within that category.

3. In fixing sentence for attempted murder, the court nevertheless took account of the principle indicated by Ford: the judge must consider the sentence that would have been appropriate had the offence been murder. The proper sentence was reduced in light of the appellants’ non-principal role, joint-enterprise liability, lack of premeditation, lack of responsibility for the racist abuse preceding the violence, and the fact that they were not sentenced as dangerous offenders.

4. The certainty of release at the halfway point under section 244 of the Criminal Justice Act 2003 further distinguished the case from Ford. For the section 18 wounding, comparative selections of sentences were of limited assistance because sentencing under section 18 of the Offences against the Person Act 1861 is predominantly fact-driven.

• Court of Appeal (Criminal Division): Allowed the appeals against sentence and substituted concurrent sentences of 15 years for attempted murder and eight years for wounding with intent: [2008] EWCA Crim 1226.

• Central Criminal Court: Following trial, convicted each appellant of attempted murder, wounding with intent and violent disorder; on 11 January 2008 imposed concurrent sentences of 18 years, 10 years and four years respectively.