No. 2006/03920/C4, 2007/01177/C4 & 2006/05867/C4
Neutral Citation Number: [2007] EWCA Crim 1455
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Friday  4  May  2007

B e f o r e:

LORD  JUSTICE  MOSES

MR  JUSTICE  GROSS

and

MR  JUSTICE  UNDERHILL

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R E G I N A

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RAHUEL  DELUCCA

MARCUS  NATHANIEL  RHODEN

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MR M WOOD QC appeared on behalf of THE APPELLANT RAHUEL DELUCCA
MR M DAVIES appeared on behalf of THE APPLICANT MARCUS RHODEN
MR J R LODGE appeared on behalf of THE CROWN

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J U D G M E N T

LORD JUSTICE MOSES:  
The Appeal against conviction by Rahuel Delucca
1.  On 23 June 2005, in the Crown Court at Bradford, the appellant Rahuel Delucca was convicted of possessing a firearm with intent to cause fear of violence contrary to section 16A of the Firearms Act 1968.  He appeals against conviction by leave of the single judge.

2.  The appellant was alleged to have shot with a Tariq pistol at a car belonging to a man called Francois.  That is of significance in the context of this appeal because Francois and a co-defendant Rhoden were enemies.  There was a history of feuding between the families.  However, as admissions made in the course of the trial showed, the dispute was not between Delucca and Francois.  That absence of motive was a powerful point which the appellant sought to use before the jury.  It is also of significance in this appeal to record at this stage that the incident in which a shot was fired at the car with the Tariq pistol took place on the evening of 10 November 2005 at about 6pm.  

3.  Whoever it was who shot at that car with that pistol was one of a number of men seated in a Fiat motor car.  The issue before the jury, and the issue reiterated before us, was whether the prosecution could prove that the man who wielded the gun and shot at the car was this appellant.  There is no dispute that this appellant was in the car at the time.

4.  The evidence against the appellant, which the prosecution said was sufficient to prove that he was the man, consisted in the main of a confession that the appellant had made in which he admitted that he had used the gun to shoot at Francois' car.  

5.  There was also called by the prosecution a series of eye-witnesses, all of whom gave slightly different descriptions of the man wielding the gun -- different descriptions of clothing and different descriptions of the colour and racial identification of the gunman.  It was those different descriptions which, it was said, precluded any sufficient proof that it was the appellant who was the gunman in contradiction to the apparent confession.  The appeal has focused upon those different descriptions.

6.  There was CCTV footage showing this appellant and one other getting into the Fiat motor car at some time before the incident. We have seen those photographs.  It is alleged, as it was alleged before the jury, that they showed this appellant (who is clearly of lighter skin than Rhoden) in the car, wearing a blue top and no apparent hood.  This, so it is argued, contrasts with the descriptions of the eye-witnesses who described the gunman as being black, of Afro-Caribbean origin, and wearing clothing with a hood.  But it must be emphasised for the purposes of this appeal that the witnesses, as would be expected, gave different descriptions.

7.  The best eye-witness, so Mr Wood QC argues on behalf of the appellant, was Gulam Asif, a motorist who, at about 6pm, was passing a few feet away.  There can be no precision as to how far he was away.  He described the gunman as being black, Afro-Caribbean, with his head covered with a hood.  In cross-examination he said that the man was not Asian or caucasian.  Based upon that description, the appellant submits that that cannot have been a description of him.  Accordingly, it is powerful evidence that he was not the gunman.  It must be said, as the jury were reminded and as they could see for themselves, the appellant is not of a white complexion, but nor is he of Afro-Caribbean origin.

8.  Adrian Bedford, a vehicle recovery manager, heard bangs like fireworks and saw the gunman get into the back passenger door, although he accepted that he could have been mistaken about that.  It appears to have been accepted that the appellant was travelling in the  back and not the front.  So any description suggesting that the gunman got into the front would be evidence going to show that the gunman was not this appellant.  Adrian Bedford described the gunman having dark clothing with a hood.

9.  Anna Taylor, another eye-witness described the gunman as getting into the front passenger door, a position which tended to show that this appellant was not the gunman.

10.  Jasmin Khalifa described the gunman getting into the rear passenger door, and that the gunman was black and wearing a knee-length duffle coat with a hood.  She described another man, whom the judge mistakenly identified as Rhoden, as having plaits like the well-known footballer Rio Ferdinand.   However, the importance of that part of the evidence is that it tends to support what the appellant was saying, namely that there were four people in the car, since neither he, the co-defendant Rhoden, nor another man in the car (Fray) had hair of that description.

11.  Joanne Helm, who was with Jasmin Khalifa, described the gunman wearing a black coat, black gloves and a hood.

12.  In support of the evidence of absence of motive of the appellant was another eye-witness, Leon Flynn, who spoke of his fear of Rhoden.  He said that he saw Rhoden in the front passenger seat.  He was apprehensive of what might happen, but did not see who the gunman was.

13.  The evidence did not stop there.  The prosecution also relied upon DNA matching that of this appellant on the trigger area of the Tariq gun used in that shooting.  That, as Mr Wood pointed out, was evidence that he had handled the gun, not that he had used it on the particular occasion at 6pm on 10 November.

14.  Of greater significance was what this appellant had said about it.  He had, surprisingly, but consistently with his character of show-off and fantasist, made a video tape which he sent to his co-defendant Rhoden's solicitor before attempting to leave the country and go to the Caribbean.  The video tape was made on 29 November 2005.  It made a confession of two distinct offences.  It is at this point necessary  to mention a second offence.  After the shooting of the car belonging to Francois in Alder Street, the occupants of the car had gone to Fray's address.  Armed police had attended at that address.  Rhoden, so the prosecution alleged, had then shot at the car, he said not realising that there were policemen in it.  He pleaded guilty to the offence of attempted murder, a matter to which we will return when we consider his application for leave to appeal against sentence.  We mention it at this stage because the video-tape to which we have referred contained a confession by the appellant Delucca of two offences: first, the offence of shooting at the car in Alder Street; and secondly, shooting at the policemen when they had attended Fray's address.

15.  There were a large number of interviews once Delucca had been arrested.  Eventually, after a discussion with a detention officer in a recreation yard, he withdrew his confession in relation to the second offence.  The prosecution allege that he was right to do so, and that he was not the gunman who had shot at the police officer.  But he never withdrew his confession to being the gunman in Alder Street.  That, in our judgment (and clearly it must have been to the jury) was a significant fact.  No submission having been made at the close of the prosecution's case, the appellant chose not to give evidence.  There was thus, as Gross J pointed out in argument, no evidence to rebut the impact of that confession that the appellant was the gunman.  It is in that context that Mr Wood QC now submits, with his usual tact and economy, but no absence of force, that this verdict was unsafe.

16.  So many witnesses gave descriptions of the gunman being black, Afro-Caribbean and wearing a hood, that it cannot be said that there was sufficient evidence on which a jury could convict on the basis that the appellant had been identified as the gunman.  If the evidence had stayed there, this court might well have agreed with that submission.  But the evidence was not confined to those eye-witnesses.  There are many cases, of which we think this case is an example, where the eye-witnesses provide the least satisfactory evidence.  After all, there was nothing to draw an eye-witness to the particulars of that scene, other than the startling and frightening event of the shooting of the gun -- the loud, unexpected bangs of the revolver.  Small wonder that there should be different descriptions as to what the gunman looked like and as to where he went.

17.  We are prepared to accept for the purposes of this appeal that the preponderance of the evidence tended to suggest that the gunman was of Afro-Caribbean origin and black.  But the appeal system in this country does not depend upon merely reviewing the decision of a jury and considering whether a different verdict might have been open to them.  Of course it might.  There were arguments -- some may say powerful arguments -- which this appellant could deploy before them.  But that is not enough as a basis on which this court can conclude that the verdict was unsafe.  Our task is to look at all the evidence and to see whether there was a basis upon which the jury properly directed, and properly considering this matter, could be sure that the appellant was guilty, and in that context consider whether the verdict was safe.  We have no hesitation in saying that it was.  The most powerful evidence was this appellant's own admission, against which there was no evidence from him to suggest that it was a false confession.  He had never withdrawn it.  Nor had he ever gone into the witness box on oath to say that it was false.  In those circumstances we conclude that the verdict was safe.  This appeal against conviction is dismissed.

The Application for leave to appeal against sentence by Rahuel Delucca
18.  The applicant Delucca was sentenced for three offences: first, in respect of possessing a firearm with intent to cause fear of violence, of which he was convicted; and secondly, in respect of two offences, to which he pleaded guilty, possessing a prohibited firearm (a different firearm in an unrelated incident to the earlier one), contrary to section 5(1)(aba) of the Firearms Act 1968, and possessing ammunition without a firearms certificate contrary to section 1(1)(b) of the 1968 Act.  He was sentenced to a period of eight years' imprisonment for public protection pursuant to section 225 of the Criminal Justice Act 2003 (less 262 days spent on remand), on the first count of which he was convicted for possessing a firearm with intent to cause fear of violence.  On the other counts the judge ordered that he should be sentenced to three years' imprisonment to run consecutively, and three years' imprisonment to run concurrently as minimum periods.  That was unlawful.  Neither of those two offences were scheduled specified offences under the Criminal Justice Act 2003 within Schedule 15.  Thus it was not open to the judge to calculate the minimum term on the basis of a sentence of imprisonment for public protection.  The applicant's application for leave to appeal against sentence has been referred to the full court by the Registrar.

19.  The question as to the propriety of the sentences that the judge passed arises on two bases, both in relation to the imprisonment for public protection and to the ordering of the sentences to run consecutively.  There is now authority for the proposition that whilst consecutive sentences of imprisonment for public protection are not unlawful, they are undesirable.  R v O'Brien and Others [2007] 1 Cr App R(S) 442 teaches that it would be wrong, although not unlawful, to pass consecutive sentences (see paragraphs 57, 58 and 59 of that decision of this court).  However, as has been helpfully pointed out by Mr Lodge on behalf of the prosecution, the essential question we have to consider is as to the propriety of a minimum term of five-and-a-half years (less 262 days) on the sentence of imprisonment for public protection.

20.  In our judgment (and no real argument has been advanced to the contrary), the judge was entitled to order that the applicant Delucca serve that period as a minimum period on count 1.  The question then is whether it is proper for us to raise the notional determinate sentence of eight years on count 1 to one of eleven years in order to achieve that result.  In our judgment it is.  Firstly, to do so is not contrary to section 11(3) of the Criminal Appeal Act 1968, since the totality is not being increased.  Further, although the notional determinate period of eight years on count 1 would have to be increased to one of eleven years to achieve the same minimum period of five-and-a-half years (less 262 days), to do so would not offend against the maximum sentence imposed by Parliament of ten years for an offence contrary to section 16A.  It must always be recalled that the sentence on count 1 was an indeterminate sentence of imprisonment for public protection.  The notional determinate sentence is nothing more than an explanation by the court of the process by which it arrives at a minimum term.  It is not a sentence of imprisonment at all.  Thus, for example, fixing a notional determinate sentence of eleven years in no way exceeds the statutory maximum of ten.

21.  In our judgment, the appropriate way of curing the error for which the judge and counsel can be wholly forgiven, faced as they were with these arcane sentencing provisions, is to maintain the minimum term of five-and-a-half years' imprisonment (less 262 days) by this process.  The sentence on count 1 will remain as imprisonment for public protection pursuant to section 225 of the 2003 Act, with a minimum term of five-and-a-half years' imprisonment (less 262 days).  So far as counts 7 and 8 are concerned, the order of this court will be that the applicant should be imprisoned for three years on each, to run concurrently, concurrent with the imprisonment for public protection.  So to do takes account of section 82A(3)(a) of the Powers of Criminal Courts (Sentencing) Act 2000, which permits, when considering the count of possessing a firearm with intent to cause fear of violence, the court to take into account offences associated with that offence, namely the other offences under counts 7 and 8 in considering the appropriate sentence and seriousness of the offence under count 1.  That we have done.

22.  The conclusion is that we correct the error that we have identified, but it leaves the applicant having to serve the sentence which was intended on count 1, namely imprisonment for public protection with a minimum term of five-and-a-half years' imprisonment (less 262 days).  In those circumstances, we grant leave to appeal and, as a matter of technicality, the appeal is allowed, although the result will have no effect on the period of imprisonment which the appellant will serve.

The application for leave to appeal against sentence by Marcus Rhoden
23.  On 15 June 2006, in the Crown Court at Bradford, the applicant Rhoden pleaded guilty to attempted murder in relation to the facts we have outlined above.  On 13 October 2006, he was sentenced to imprisonment for public protection under section 225 of the Criminal Justice Act 2003, with a minimum term of six years and nine months (less 275 days spent on remand).  The applicant Rhoden applies for leave to appeal against the specified minimum period.  The application has been referred to the full court by the Registrar.  The issue is whether he has an arguable appeal against the order of a minimum term of six years and nine months (less 275 days).

24.  The argument which is raised is that, although the sentence was consistent with an earlier indication given pursuant to R v Goodyear [2005] EWCA Crim 888 -- and there is no complaint against that minimum sentence -- the sentence failed to take into account circumstances which arose after the indication, namely that on pleading guilty the applicant had agreed with a suggestion that he should give evidence on another count against the co-defendant Delucca.

25.  We do not think it is arguable that the sentence should be reduced in those circumstances.  It must be recalled that this applicant pleaded guilty only on the second day of the trial.  The minimum sentenced was fixed on the basis of a 25 per cent discount, the appropriate determinate sentence being identified at 18 years.  That, in our view, was a very generous discount, bearing in mind when the plea was offered.

26.  Secondly, although this court takes into account, and stresses the importance of defendants giving co-operation to the prosecution authorities, and for that to be reflected in the sentence, the negotiations had reached only an early and vague stage.  In fact this applicant was never required either to make a statement or to give evidence in the trial against Delucca.  Therefore any sentence to reflect those circumstances could not have taken much account of them.

27.  For both those reasons therefore we do not think that the notional determinate sentence of 18 years, having regard to the very serious nature of this offence, is arguably manifestly excessive.  In those circumstances this application is refused.

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