At the Crown court at Birmingham
The Honourable Mr Justice Saini
1. Darnell Donovan-Harris on Tuesday 22 June 2021 you were convicted of a number of offences by the jury at Birmingham Crown Court. The most serious of these offences concerned the death of Nassir Francis on 26 August 2020. Mr Le, your co-accused, was convicted of the murder of Mr Francis. You were convicted of manslaughter in respect of your acts of encouragement and assistance of Mr Le in his killing of Mr Francis.
2. It now falls to me to sentence you for manslaughter, as well as a related firearms offence on which the jury found you guilty. I have received very helpful submissions from Defence and Prosecution Counsel and my attention has been drawn to the relevant provisions of the Sentencing Act 2020 (the 2020 Act) and material guidelines concerning the two offences. Mr Donovan Harris you were 22 at the time of the offences and are now aged 23.
3. Where I state factual findings, I am sure of those facts based on the evidence I heard at trial.
4. I have read the moving VPS submitted by Naasir Francis’ mother and brother. He was a young man taken from a caring and loving family in the prime of his life.
5. I turn to the facts surrounding the offences committed on the day, 22 August 2020, that Mr Francis was killed.
6. On one side, Mr Le, Mr Donovan-Harris and Mr Tariq Francis and on the other side, Mr Francis and Mr Morgan, came together by accident near Bings café that day, at the junction of Wheeler Street and Lozells Road at around 12.30pm. There may have been some form of gang related dispute between your side and the Francis/Morgan side but I can make no safe findings on that matter based on the evidence I have heard and ignore that potential context in my sentencing.
7. However, the fact that there was a spontaneous outbreak of armed violence between to the 2 groups is clear on the footage. There can be no explanation of this unless there was some pre-existing dispute.
8. The murder of Mr Francis and the attempted murder of Mr Morgan was captured on clear CCTV footage. The graphic and distressing footage shows Mr Francis being shot at point blank range by Teeko Le using an automatic weapon, while Mr Francis was sitting defenceless in a Lexus car and seeking to leave the scene. This was an execution.
9. Mr Donovan-Harris, the jury found that you encouraged and assisted Mr Le by moving towards Mr Francis, and in opening the door of his car on two occasions. Your claims in evidence that you did not encourage or assist were unsurprisingly rejected by the jury when one considers that the CCTV shows you clearly undertaking such acts. You not only opened the car on two occasions but your actions and gestures show how directly you participated in the events leading to Mr Francis’ death.
10. The jury however acquitted you of murder and found you guilty of manslaughter on the basis that you intended harm to Mr Francis short of serious harm. I, of course, must respect that verdict.
11. I find that you intended to cause harm falling just short of serious harm. It is hard to escape that conclusion when one considers the CCTV.
12. The jury also found you guilty of possession of the firearm which Mr Le used but acquitted you of possession with intent to endanger life. I am satisfied that you handed this weapon to Mr Le shortly before you both came to Bings, knowing it was loaded.
13. I will take the possession count into account as an aggravating matter when determining the appropriate sentence in respect of the manslaughter count and will pass a concurrent sentence in respect of the possession matter, as argued on your behalf of Mr Nathan QC.
14. As to your previous convictions, they are relatively minor. I have also considered the character references provided to me.
15. Turning to your conviction for manslaughter, I conclude that this matter falls into very high culpability (category A) on the basis of the extreme character of one or more culpability B factors.
16. I consider the character of the following culpability B factors was extreme:
a. First, Mr Francis’ death was caused in the course of an unlawful act which involved an intention by you to cause harm falling just short of GBH and that his death was caused in the course of an unlawful act which carried a high risk of death or GBH which was or ought to have been obvious to you.
b. Second, this was a shoot-out, in public in the middle of the day. I am satisfied that you knew Mr Le was in possession of the loaded gun (having given it to him); you went with Mr Le to look for Mr Morgan and Mr Francis; you ran alongside Mr Le as he was shooting towards them on their return; you identified Mr Francis’s position in the car to Mr Le and you opened the door to the car, enabling Mr Le to get better shots at Mr Francis.
17. The starting point for manslaughter of this category is 18 years’ custody, with a wide category range of 11- 24 years’ custody. I note that the guideline table is for a single offence of manslaughter resulting in a single fatality. Where another offence or offences arise out of the same incident or facts, concurrent sentences reflecting the overall criminality of offending will ordinarily be appropriate. As I have said, I will follow that course and turn to consider the possession count.
18. As regards this count, the revolver is a type 1 weapon, under section 5(1A)(v)(a) of the Firearms Act and I conclude on the facts that the culpability level is in the medium range (category B). I do not accept the Crown’s submission that this was category A culpability. The medium culpability factors are satisfied. The firearm was produced and loaded with ammunition and I find you were reckless as to whether or not it would be used.
19. As to harm, this is category 1. It was at 12.30pm in the middle of the day in a public area (where there were numerous members of the public) that the weapon was drawn and used. There was clearly a high risk of harm and disorder.
20. Turning then to step 2 and applying table 1 of the firearms guidelines, this is a B1 case. The starting point is, accordingly 7 years, with a 6 to 8 year range. Having regard to the balance between aggravating and mitigating factors, I impose a sentence of 7 years concurrent for the firearms count.
21. I return then to the manslaughter sentence.
22. In considering the aggravating factors, I have excluded from those factors those matters which take the manslaughter into the highest culpability A category. I consider the only additional relevant aggravating matters are the disposal of the gun, phones, and your car. Your convictions are of minor relevance.
23. As to mitigation, I have taken into account what has been submitted on your behalf. I note in particular your lack of serious prior offending, lack of premeditation and your remorse. I have considered the letter you have sent to me and I accept your remorse is genuine and you have reflected on your offending and the consequences for Mr Francis and his family. I also take into account that you are still a young man who is devoted to his family.
24. Standing back, I impose a sentence of 18 years in respect of Count 6, manslaughter and that takes into account my concurrent sentence in respect of Count 10, possession of a firearm. I consider that your mitigation brings you down from the starting point of 18 years, but I return to 18 years when taking into account the firearms offence.
25. I have considered totality and arrived at what I consider is a proportionate sentence reflecting your criminal conduct overall on that day.
26. You will be released from custody two-thirds of the way through the 18 year sentence and the remainder of the sentence will be served on licence in the community. You must comply with all the conditions of your licence, failing which you will be at risk of recall to prison to serve the remainder of the term in custody.
27. Time spent on remand will be deducted from your sentence and that can be done administratively.
28. Finally, I am not satisfied on the evidence before me that the requirements are met in respect of section 258 (required life sentence), or section 279 (extended sentence), of the 2020 Act.
29. A victim surcharge order will be drawn up.