R v Osita Alagbaoso

A sentencing judge may reflect separate criminality and harm to a separate victim by increasing the minimum term for murder while imposing a concurrent sentence for a separate offence, provided that the overall sentence complies with totality. In sentencing a young person, the relevant guideline reduction from an adult sentence is not mechanistic. Developmental age may be as important as chronological age, but the sentencing court must assess its significance on the evidence.

On an appeal against sentence, the appellate court must stand back and decide whether the approach disclosed an error of law or the sentence was manifestly excessive. Due weight is given to a trial judge who heard the evidence and assessed the offending.

Osita Alagbaoso, then aged 17, pleaded guilty to wounding Kaseem Ibrahim with intent and was later convicted after trial in the Crown Court at Maidstone of the murder of Jamie McFarlane. The offences arose from gang-related hostility. He received detention at Her Majesty’s Pleasure with a minimum term of 20 years for murder, less time on remand, and a concurrent 54-month term for wounding with intent.

He appealed against sentence. He challenged findings of planning and intent to kill, contended that the wounding sentence did not properly apply guidance for children and young persons, and submitted that the 20-year minimum term was manifestly excessive on a totality assessment.

1. Appeal dismissed. The trial judge, having heard the lengthy trial, was entitled to find that the murder was a premeditated and unprovoked attack. The appellant was armed with two knives, initiated a chase, used force sufficient to break the kitchen knife blade, and pursued the deceased while carrying the second knife. Those matters were capable of proving an intention to kill. The references in the sentencing remarks to defensive and attacking conduct did not displace the clear finding of planning.

2. The judge was entitled to treat the wounding with intent as aggravating the murder sentence. It involved separate criminality, serious harm and a separate victim. A concurrent sentence for that offence was also a permissible means of giving effect to totality.

3. The judge permissibly assessed the wounding offence by reference to the adult guideline range, its aggravating and mitigating features, including the appellant’s age, and the guilty-plea reduction. Guidance that a sentence for a 15- to 17-year-old will often be between one half and two thirds of the adult sentence does not require a mechanistic reduction. Developmental age and the appellant’s cognitive difficulties were relevant, but the trial judge was entitled to assess their limited effect on culpability after seeing him give evidence.

4. Although the sentencing structure did not reveal the precise minimum term selected for murder alone, it disclosed no error of law. Standing back, the court considered that the 20-year minimum term was severe but not manifestly excessive. Even an approximate analysis of 18 years for murder plus two years to reflect the separate wounding did not justify appellate intervention.

• Court of Appeal (Criminal Division): Dismissed the appeal against sentence in [2022] EWCA Crim 1685.

• Crown Court at Maidstone: The appellant was convicted of murder after trial on 28 April 2021. On 23 November 2021 he was sentenced to detention at Her Majesty’s Pleasure with a 20-year minimum term, less time on remand, and to 54 months’ concurrent detention for wounding with intent.