“Floating–Free”

R v Ayman Aziz [2019] EWCA Crim 1568

The appellant was found guilty in December 2018 of the rape and murder of a 14-year-old girl. At the time of the offending, he was 16 and had turned 17 by the time the matter came before the appellate court. The trial Judge, Mr Justice Jeremy Baker, sentenced Aziz on 22 February 2019, and imposed the mandatory sentence of detention at Her Majesty’s pleasure for murder, pursuant to section 90 of the Powers of Criminal Courts (Sentencing) Act 2000, specifying a minimum term of 19 years. He imposed a concurrent sentence of ten years’ detention for the rape.

Facts

The victim, Viktorija Sokolova, was known to the Appellant. From the time Aziz re-established contact with her, he had accessed material about anal sex, including a number of pornographic videos depicting it. He lured the victim to a pavilion in a local park on 11 April 2018.

It is clear that the fatal attack took place in the pavilion. The victim’s body was dragged to a park bench and was left undressed for the most part with her body in a kneeling position and her top half draped over the arm of the bench. She had suffered a sustained and ferocious attack to the head, possibly with a hammer. A minimum of 21 blows were inflicted. Semen was found which was consistent with anal intercourse.

The appellant accepted meeting the victim, and that consensual intercourse had taken place but maintained he had left her alive.

Sentencing

The PSR disclosed a troubled background, involving racial abuse, physical attacks, and bullying. Aziz had not engaged with school, and his mental health had declined. His lifestyle around the time of the offence appeared to have been dominated by his mental health issues.

The sentencing Judge was told of symptoms of psychosis and paranoia, and two psychiatrists agreed that the applicant met the criteria for a diagnosis of paranoid schizophrenia. However, Aziz had been unable to give a clear account of his mental state at the time of the offending. It is possible he was not taking his medication. He was likely to have had some symptoms of a psychotic nature at the time of the offences, and there was clear evidence of his being mentally unwell soon after coming into custody but it was difficult to ascertain what impact his mental illness may have had on his behaviour at the relevant time. There was no clear link between his mental disorder and his offending.

Appeal

There was no criticism at appeal about the judge’s overall approach, the sentence for rape, or the identified aggravating and mitigating factors. There were three limbs to the appeal:

1. The judge had paid insufficient regard to the intention of Parliament in setting the statutory starting point for those aged under 18 at 12 years, regardless of the nature of the offence. On the same limb, it was said that the judge was wrong to “float free” from the statutory starting point, which ‘properly reflects the overarching significance of immaturity, against which every feature of aggravation has to be measured’.
2. The judge’s approach to the Appellant’s mental health had focussed too much on whether it was causative of the offending and too little on the overall mitigation which his mental disorder afforded him.
3. The judge had paid too much attention to Aziz’s chronological age, and insufficient to his developmental immaturity.

Held

After balancing aggravating and mitigating factors, the overall increase on the starting point from 12 to 19 years was not wrong; it sat comfortably with the approach in R v Markham and Edwards [2017] EWCA Crim 739 [2017] 2 Cr. App. R. (S.) 30

The murder by Aziz was carried out with a weapon (not found); there was sexual motivation, rape, and a sadistic element to the offending. The Court held that it was legitimate to keep in mind that the sadistic and sexual elements of the offending would have led to a starting point, for someone over 21, of a whole life term. The severity of the sentence flowed from the weight attached to the “truly dreadful” nature of the offending.

Anonymity

The sentencing judge had made an “excepting direction” to discharge the s45(3) direction on the identification of the Appellant. The judge had noted that the existing order would expire in January 2020, when the appellant turned 18. He considered it to be of relevance in the context of such serious offending “that the accused… will in any event lose his anonymity in less than a year and … will remain in custody for a substantial period of time.” He concluded that both section 45(4) and section 45(5) applied. The judge then stayed his excepting direction until after the disposal of a claim by Aziz for judicial review of his decision. That claim was brought. Permission to apply for judicial review was granted and an interim anonymity order made.

The Appellate Court considered this issue at the same time. There were five grounds of appeal, four of which amounted to almost the same point. It was held that the judge had set out the relevant statutory provisions and referred to authority on the importance of open justice, identifying the competing considerations. The offences committed by Aziz were found to be ‘exceptionally serious and shocking in their planning, the length of time over which they were perpetrated and their brutality’. Referring back to the diagnosis of paranoid schizophrenia, it was clear that the judge did not consider there was sufficient evidence available to him to conclude that this significantly reduced culpability. This may have been a factor in favour of maintaining anonymity.

It was found to be very unlikely that an injunction against all the world (grounded in a compelling need to protect a notorious criminal against vigilante action that threatens his personal safety or wellbeing) would be appropriate in this case after Aziz turns 18.

Jurisdiction

On the jurisdictional point, the court found that it may become necessary to revisit whether decisions in the Crown Court in this area are properly subject to judicial review. They considered the relationship between the various provisions conferring power of the Court of Appeal Criminal Division. In the circumstances, the court, not having granted leave to appeal, reconstituted itself as a Divisional Court and dealt with this issue in the judicial review. The Court lifted the stay on those proceedings, treated the appellate hearing as the substantive judicial review, and dismissed that claim, discharging the anonymity order granted in those proceedings.