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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Okunola, R. v [2025] EWCA Crim 350 (07 March 2025) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2025/350.html Cite as: [2025] EWCA Crim 350

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IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT MANCHESTER
MR JUSTICE GOOSE T20217247

		Royal Courts of Justice Strand London WC2A 2LL
		7 March 2025

LORD JUSTICE DINGEMANS:

Introduction

1. This is the hearing of applications for an extension of time of some 920 days and then for leave to appeal against sentence on the part of Mr Azim Okunola, a 22-year-old man who was before the offence the subject of this appeal of previous good character. The application has been referred to the full court by the Registrar.
2. Mr Okunola was tried on a count of conspiracy to murder and conspiracy to cause grievous bodily harm with intent. On 17 May 2022, after a trial before Goose J and a jury which had lasted some eight weeks over a ten-week period, co-defendants Mr Oni, Mr Ojo, Mr Jitoboh and Mr Kalumda were found guilty of conspiracy to murder. Mr Thomas Junior, Mr Adedeji, Mr Savi and Mr Okoya together with Mr Okunola were found guilty of conspiracy to cause grievous bodily harm with intent, and on 1 July, Mr Thomas, Mr Adedeji, Mr Savi, Mr Okoya and Mr Okunola were each sentenced to 8 years' detention in a young offenders' institution.
3. There were appeals against conviction and sentence by some of the co-defendants, and in R v Oni [2025] ECWA Crim 12; [2025] 4 WLR 19, the Court of Appeal allowed the appeal of Mr Adedeji against conviction on the basis of fresh evidence and allowed the appeal against sentence for Mr Savi and Mr Okoya, reducing their sentences of 8 years to sentences of 4 years 6 months. On this appeal Mr Whyte on behalf of Mr Okunola submits that, for reasons similar to those which applied to Mr Savi and Mr Okoya, his sentence should also be reduced. It is also submitted that, in reliance on a prosecution note suggesting that his role was less than other conspirators, his role was less than Mr Savi and Mr Okoya. It was also said the categorisation was wrong, the role attributed to Mr Okunola was wrong, and the judge had failed to give consideration to the position of black defendants in accordance with the Sentencing Council guidelines. Mr Sandiford KC on behalf of the prosecution submits that Mr Okunola's role was significantly greater and went on for longer than the roles attributed to Mr Savi and Mr Okoya in the conspiracy. The prosecution note had been misread because that was referring to Mr Okunola's continuing role in December 2020, which was a time when there was no evidence of Mr Savi and Mr Okoya's continuing involvement, and the sentence was not manifestly excessive, and leave to appeal and an extension of time should be refused. We are grateful to Mr Whyte and Mr Sandiford for their helpful written and oral submissions.

Factual background

4. This summary is based on a finding of facts set out in the sentencing remarks by the judge who had heard the trial. The judge found that the background to the offences lay in a rival gang culture between two gangs. The M40 gang from the Mostyn area of north Manchester and the RTD gang from Rochdale and Oldham were engaged in a rivalry which led on 5 November 2020 to the stabbing of Joseph Raji, a person identified with the RTD gang, in central Manchester, and later the murder of John Soyoye, a member of the M40 gang who had taken part in the attack on Mr Raji.
5. On 5 November at 2.40 pm, men (which included co-defendants but not this defendant) chased down and attacked Mr Raji in Piccadilly Gardens in Manchester city centre. There was serious group violence. Mr Raji was stabbed. He was treated at Manchester Royal Infirmary for a deep, 1 to 2-inch stab wound to the inside of the right thigh. It was agreed that following the attack there was communication between members of the two rival gangs which led to a violent meeting when 21 armed males met in Mostyn later that evening. The judge recorded that the events of that violent disorder occurred at about 6 pm when thirteen men with knives, machetes and other weapons travelled to Birchenall Street in Mostyn. They were associated with the RTD gang and were seeking revenge for what had happened earlier. They were searching for the M40 gang, and eight of that gang (including co-defendants but not this appellant) prepared themselves for the fight with machetes, sticks and poles. The groups came together. Mr Soyoye carried a machete, as did another unidentified youth. There was fighting, but it was apparent that the M40 gang were outnumbered by the RTD gang, and therefore the M40 gang disengaged and ran away, but Mr Soyoye was caught and attacked with machetes. He received fifteen separate stab wounds and died at the scene. Mr Jitoboh, Mr Thorne, Mr Thomas, Mr Semedo and Mr Oni subsequently pleaded guilty to offences of violent disorder, and in a subsequent trial before a different jury seven of those thirteen men of the RTD gang were convicted of murder and one was convicted of manslaughter. Sentences of life imprisonment were imposed.
6. The judge when sentencing the defendants stated that the prosecution case, which must have been accepted by the jury, was that after Mr Soyoye's murder on 5 November, ten persons formed a criminal agreement or conspiracy in which the defendants decided that one or more of them would attack the rival gang or group. The jury found that four of them, Mr Oni, Mr Ojo, Mr Kalumba and Mr Jitoboh intended that they would kill a member of the RTD gang and so they were guilty of the conspiracy to murder. The jury found that the others, which included Mr Okunola, intended that grievous bodily harm would be caused. The judge was sure that the conspiracy was formed quickly, within days. The judge referred to a social media chat on Telegram which showed that seven individuals were exchanging ideas in planning, identifying where targets could be found and who might be threatened to disclose information about targets, ie those members of the RTD gang before they had been arrested by the police for their part in the murder of John Soyoye.
7. Mr Okunola's contributions to the chat included offering to pay money - "five bills" - to a girl (who was named) to line up for attack one person who was one of those later convicted of the murder of John Soyoye. Mr Okunola also urged caution when dealing with the girl because they could "snitch" to the intended targets of the attack or if the police found out.

On 14 November (so some six days later) Mr Okunola offered to pay £2,000 to any member of the Telegram chat who attacked a man who had been saying things about John Soyoye. Mr Okunola suggested that the person to be attacked be stripped and the attack recorded. Another co-defendant suggested posting that attack on social media; and various people offered to carry out the attack.

8. The judge found that in pursuance of those conspiracies, three incidents of violence were carried out against some of those who were targeted. First, on 10 November Mr Oni and Mr Ojo confronted a person at Hopwood College. Mr Oni had taken with him a large knife (most likely a sword or machete) which he revealed to the intended victim. The intended victim ran away and fortunately no one came to harm. Then on 16 December 2020 Mr Oni and Mr Kalumba travelled to the Freehold Flats area of Rochdale to what they considered to be the territory of the RTD gang. Mr Oni took a machete again. This time Mr Oni caused serious injuries. The attack was captured on CCTV as both Mr Oni and Mr Kalumba chased after the victim. The victim was struck across his back several times, causing very deep and long slash-type injuries. As he ran across the road to reach safety in a shop, Mr Oni struck him again across the back in front of the traffic.
9. On 28 December, four men including Mr Kalumba travelled in a stolen car back to the Freehold Flats in Rochdale. The driver remained in the car while the other three including Mr Kalumba chased another victim, who initially managed to escape. Mr Kalumba and the other two returned to the waiting car and went in search of the victim. When he was found, the same three with machetes got out of the car and ran after the victim in full view of CCTV camera. Two of them (not Mr Kalumba) repeatedly struck the victim with machetes, causing very serious slash injuries. Mr Kalumba stood by with his machete in hand. They returned to the car, leaving the victim on the pavement. The car was then used as a weapon in an attempt to drive over the victim whilst he was still lying on the ground. It was only because the man realised what was going to happen that he got up and was thrown over the bonnet of the car. The judge found that the intention of those men in that car was clear, which was to kill as part of the conspiracy. But of course that was a separate conspiracy from the conspiracy to which the jury were sure that Mr Okunola was part.
10. There was no further evidence of involvement from Mr Savi after 8 November or Mr Okoya after 14 November, which was a month before any actual violence was carried out, although violence on 16 November had been attempted.

11. As far as Mr Okunola was concerned the position was different, in that after the attack on 16 December by Mr Oni and Mr Ojo with a machete slashing the victim across the back, he contacted Mr Oni and said that Mr Okunola might have a 'drop' (which is a location for the attack) on a person (one of those later convicted of the murder of John Soyoye). Mr Okunola told Mr Oni that "Some girl knows where he is staying…. It's in [a particular area] near Mcdonald'[.] She don't know addy but she knows direction[.] I'll update u later when we got full direction but apparently….some[,] a few men are hiding there….Because of the md situation uno." The situation was a reference to the death of John Soyoye. There is therefore evidence that Mr Okunola continued to support and participate in the plan to take revenge on the murderers of John Soyoye up to and after the time when actual violent attacks began to be carried out.

11. We should refer to the fact that the prosecution has drawn our attention to some evidence on rap lyrics on 28 December: that a particular person identified by Mr Okunola was located and an attempt made to attack him, but he got away, because the lyrics say, "We chased [X] and he ran like a fox". There is nothing beyond this, and it is not possible to make any safe finding on the basis that we are sure that that was part of violence carried out pursuant to the conspiracy, although as Mr Sandiford has rightly pointed out, when sentencing for a conspiracy it is necessary to consider what the intended harm was. It is plain that the Telegram chat was a central part of the prosecution case against those whom the prosecution accepted were the lesser parties in the conspiracy.

Sentencing

12. When sentencing, the judge found that he was sure that had it not been for the arrests carried out by the police of the RTD gang, this conspiracy would have led to further incidents of very serious injury or killing. When sentencing, the judge found that Mr Oni, Mr Ojo and Mr Kalumba had played equal roles in the conspiracy to murder, and that Mr Oni and Mr Ojo clearly played the main role in the planning. Mr Ojo had set up the Telegram group chat. Mr Oni and Mr Ojo drove the discussion. They carried out the intended attack on 10 November. Mr Oni and Mr Kalumba carried out the attack on the 16^th December 2020. Mr Kalumba carried out the attack with three others on the 28^th December 2020. Mr Oni and Mr Ojo each received an extended sentence of 21 years, being a custodial term of 18 years and an extended licence period of 3 years. This appeal has nothing to do with their sentences. Mr Jitoboh's role was slightly less and he received an extended sentence of 20 years - again nothing to this appeal.
13. In respect of the conspiracy to cause grievous bodily harm, the judge found that the co-defendants Mr Thorne, Mr Thomas, Mr Adedeji, Mr Savi, Mr Okoya and Mr Okunola each played a role of similar culpability. Those roles were to acquire weapons and to locate targeted victims or information about them. The judge found that each of them played an important role in the conspiracy. The judge was sure that the weapons planned and used as part of that were highly dangerous machetes which were acquired for the purpose only of threatening and causing very serious injuries.
14. Mr Savi and Mr Okoya, like Mr Okunola, had no previous convictions or cautions. The judge found that the Assault guideline for offences for section 18 Grievous Bodily Harm was the appropriate starting point. The judge said that the correct category for sentence was 1A as the overt acts on the 16th December 2020 and 28th December 2020 involved high culpability with a significant degree of planning and premeditation and the use of highly dangerous weapons and revenge violence. There was category 1 harm because particularly grave or life-threatening injury was intended. The second of those incidents was a sustained attack with machetes. The starting point was 12 years with a range of 10 to 16 years. There were two victims. The offence was aggravated by the rising criminality both in time and in those involved to increase the custodial period to 15 years. Each person was effectively of good character before the offence. Whilst some had slightly stronger personal mitigation, the judge was not persuaded that it created a significant difference. The sentence was reduced to 8 years because of the young age. Each of the appellants was convicted of conspiracy to cause grievous bodily harm and therefore received a sentence of 8 years' detention.

Extension of time

15. So far as the extension of time is concerned, what is required is an extension of time of some 920 days. It is apparent from the information that we have before us that Mr Okunola had been attempting to appeal throughout that period but had had difficulties obtaining legal representation and some difficulties in progressing the matter. It is submitted on behalf of Mr Okunola that it is in the interests of justice to extend time, particularly in the light of the effect of the sentences that were imposed on co-defendants who the judge said had shared the same culpability as Mr Okunola in R v Oni, to which the reference has already been given. In our judgment this is an appropriate case where the interests of justice require an extension of time. We therefore grant an extension of time and will grant leave to appeal.

This appeal

16. So far as this appeal is concerned, in R v Greenfield (1973) 57 Cr App R 849, it was recorded that it is for the trial judge to determine the role of a particular defendant in a conspiracy. We have had regard to the fact that the sentences were imposed by the judge who heard the trial over a period of ten weeks.
17. A number of points have been made in writing about roles and indeed whether or not the judge impermissibly took into account the intentions of those who were convicted of conspiracy to murder. The judge was not entitled to take into account those intentions but, in our judgment, he did not appear to take that into account in the sentencing remarks.
18. So far as the guidelines are concerned, the judge concluded that the Assault guidelines for the offence of section 18 grievous bodily harm, the appropriate starting point was category 1A. He said high culpability because there was a significant degree of planning and premeditation; there was a use of highly dangerous weapons; revenge and violence. It was category 1 harm because particularly grave or life-threatening injury was intended.
19. In our judgment the judge's approach had the effect of treating Mr Okunola as if he was participating in the actual attack and he did fail to reflect the fact that his role in the planning of the attacks was a lesser role in group activity, which is a culpability B factor. It is right, however, to record that Mr Okunola, in a way that did not apply to Mr Savi and Mr Okoya, did continue with the conspiracy at a time when attacks were being carried out, taking him closer to the frontline of the attacks, but it is impossible to read the chats to suggest that he had a leading role in the conspiracy. The judge had rightly attributed that leading role to Mr Oni and Mr Ojo, who were convicted of conspiracy to murder but had also pleaded guilty to the conspiracy to cause really serious bodily harm.
20. We have also considered that it is not apparent from what Mr Okunola said that anything more than grave injury/category 2 harm was intended by him. The evidence of the chat is entirely consistent with the use of machetes but also stripping to humiliate a person and film that. There is no evidence that he intended life-threatening injuries because otherwise it might be inferred the jury would have convicted him of conspiracy to murder in those circumstances. On the basis of what he said and what he offered to do he was planning a grave injury, which is category 2 harm.
21. We note that for Mr Savi and Mr Okoya, the judgment in Oni recorded that they were category B culpability/lesser role in group activity/category 2 grave injury, which gave a starting point of 5 years with a range of 4 to 7 years, but the judge was held to be right to aggravate from that starting point to take account of the actions carried out pursuant to the conspiracy, taking the sentence to the top of the range. Further, the judge had to reflect intended harm which might have justified going above that range which was for one attack, before issues of mitigation are addressed.
22. We also note this as far as culpability A features are concerned, because of the continuing involvement of Mr Okunola he comes a bit closer to culpability A. Culpability category 2A has a starting point of 7 years with a range of 6 to 10 years. Doing the best we can, we consider that a fair reflection of Mr Okunola's culpability is on the cusp of category A and B: so he is category 2 but between culpability A and B. Category 2B has a starting point of 5 years and a range of 4 to 7 years, and category 2A has a starting point of 7 years with a range of 6 to 10 years.
23. The judge would have had to reflect the culpability of the aggravating features which were identified to take account of the actions carried out pursuant to the conspiracy which should have taken the sentence up the range. Further, as this was a conspiracy, the judge had to reflect the intended harm of further attacks. There were, as Mr Whyte has also identified, discounts for mitigation, which included positive good character, the evidence from the pre-sentence report and all that we have seen in relation to Mr Okunola. That includes the fact of his passed degree certificate, his study and continuing work in his current category D prison, the fact that he is working in the community and has recently secured an extension to that work.
24. There is then a discount to reflect age and immaturity. He was 18 years and 1 month old when this conspiracy started. The others were just under 18 years, but he was in the same academic year. There is no evidence of any particular distinguishing feature so far as age and immaturity is concerned and it is right to give a substantial discount for that in the particular circumstances of this case. In our judgment, a proportionate sentence to be imposed on Mr Okunola would have been 6 years' custody, to which the discount for time served identified by the judge is to be applied.
25. We therefore allow the appeal against sentence of Mr Okunola, having extended time and having granted leave to appeal. We therefore quash the sentence of 8 years' detention and instead impose a sentence of 6 years' detention in a young offenders' institution. As before, the time served on remand (which we are told is 228 days, including the days spent on qualifying curfew specified by the judge) will count towards the sentence.