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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Fadairo v R [2012] EWCA Crim 1292 (20 June 2012) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2012/1292.html Cite as: [2012] EWCA Crim 1292 |
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ON APPEAL FROM THE CROWN COURT AT WOOLWICH
His Honour Judge Moore
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE HEDLEY
and
THE RECORDER OF PRESTON
(sitting as a Judge of the Criminal Division of the Court of Appeal)
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VINCENT OLALEKAN FADAIRO |
Appellant |
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- and - |
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THE QUEEN |
Respondent |
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Hearing date : 1 June 2012
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Crown Copyright ©
Lord Justice Stanley Burnton :
Introduction
The facts
The appellant
The judge's sentencing remarks
"The real substance of those guidelines is to try and balance out what could be described as harm and culpability. Category 1, which refers to greater harm and higher culpability, has a starting point of 12 years in custody, with a range of 9 to 16 years. Category 2 has lower culpability for serious injury, or lesser harm and higher culpability.
In my judgment, and I express it in the best way I can, the fact that [the victim's] eye was not removed or permanently damaged, as opposed to the actual loss of an eye, cannot logically diminish a sentence or increase a sentence's starting point by six years. What is important here is that I balance these two criteria in a way that reflects the gravamen of the allegation. In my judgment, there was no doubt at all that you endeavoured to stab him in the eye, in the way that you conducted yourself at that time. In any event, even if you had not, you drove a knife into his face.
Therefore, looking at both categories 1 and 2 and trying to assess the appropriate starting point, in my judgment the proper starting point is that of ten years."
"In mitigation, I take the following matters into account: the fact that you were 19 at the time of offence, not a very young man but sufficiently young for it to be a mitigating element. However, there are outweighing aggravating elements.
Firstly, you used a knife and/or a sharp implement. I come to the conclusion it is a knife because evidence was given by a witness to see you putting something into your waistband.
Secondly, it undoubtedly was a premeditated attack. The fight had started; you went away and returned. In my judgment, that demonstrates quite clearly you were determined to attack this young man in the way that you did.
Thirdly, that this offence was committed whilst on licence, that licence for offences of robbery and where there had been a suggestion, perhaps, of a weapon.
Fourthly, that you have previous convictions for, when I say the use of a knife, to the extent that a knife was produced for the offence of 2 October 2008, and in addition the threat of a weapon on the conviction of 19 January 2010. That is the rationale for my sentence."
The grounds of appeal
The leave given by the single judge
"I am persuaded that this case does raise a question of principle which may affect sentence: namely, the precise meaning/import of the phrase/criterion "Greater harm (serious harm must normally be present)" in Category 1 and Category 2 of the Assault Definitive Guidelines (p. 4) in circumstances where the infliction of really grave injury was the intention (reckless or otherwise) but not the result."
Discussion
"The table below contains a non-exhaustive list of additional factual elements providing the context of the offence and factors relating to the offender. Identify whether any combination of these, or other relevant factors, should result in an upward or downward adjustment from the starting point. In some cases, having considered these factors, it may be appropriate to move outside the identified category range."