England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		31 March 2004

1. MR JUSTICE ROYCE: The appellant, Michael James Stapley, is now aged 22. On 14th January 2003 at the Crown Court at Croydon, before His Honour Judge Denison QC, he pleaded guilty to the second count on the indictment, namely a count of obstructing a Coroner in the execution of his duty. On 5th March he was convicted on the first count, a count of conspiracy to murder. He was sentenced to life imprisonment on the first count with an order that he serve a minimum term of 15 years before being eligible for parole. A sentence of three years' imprisonment was passed concurrently on the second count. He appeals by leave of the single judge.
2. His co-accused, David Cullinane, was convicted on the first count and was sentenced to life imprisonment with a minimum term of 16 years. He was also convicted of the second count and received a sentence of five years' imprisonment to run concurrently. A second co-accused, Gordon Hoppie, was similarly convicted of conspiracy to murder. He was sentenced to life imprisonment with a minimum term of 16 years' imprisonment. He also received a sentence of three years to run concurrently on the second count.
3. The facts were these. Soumia Cullinane was aged 27. She came from Morocco. She had a young son. She met and married David Cullinane. They had a four year old son. By December 2001 her husband had started planning to kill her. It was the Crown's case that Cullinane arranged for two contract killers, the appellant and Hoppie, to do the killing in exchange for £10,000. As part of the plan, Cullinane had travelled with his wife from Colchester to Marden by train on 15th March 2002. The appellant and Hoppie had earlier hired a van. They had covered the inside of the rear of the van in plastic sheeting. They met up with Cullinane and his wife at Marden station. Soumia was 34 weeks pregnant at the time. It appears she was taken to her death in the van and indeed killed in the back of it. Cullinane returned to Colchester. The appellant and Hoppie then drove to Dene Park near Tonbridge in Kent. They deposited the body in a copse. It was found by a man walking his dog on the following day.
4. The body was fully clothed. However, any documents or other belongings that may have assisted in identifying her had been removed. The hands were bound at the front around her wrists with black tape. The ankles were tied in a similar manner. She had received numerous blows to the head with a sharp heavy instrument. There was very extensive fracturing of the skull. There was loss of brain substance. There were numerous incised wounds to the face, mouth, chin and the neck. Both jaws were broken. Blood-soaked clothing belonging to the appellant and Hoppie was disposed of by them at a waste site in Tonbridge. They cleaned out the van with bleach on 16th March, but Soumia Cullinane's blood was later discovered there by the forensic scientists in such a distribution as to indicate that she had been killed in the van.
5. The appellant told his girlfriend that he had "bopped someone on the head with his fist". It was a man, he said. They had thrown him into the back of the van and then dumped him.
6. Cullinane paid Hoppie the initial £5,000 and a further £5,000 on 18th March. Hoppie gave the appellant his £5,000 share.
7. The appellant's version to the police and at trial was that he had been recruited by Hoppie on 12th or 13th March to help dispose of a body. He believed that it was the body of a man who was already dead. He maintained that he and Hoppie had gone to Marden in the van hired by a friend. He had left Cullinane and Hoppie to get some cigarettes and on his return Hoppie had told him it was done. He and Hoppie then went back to Tonbridge and dumped the body before disposing of the clothes. That was a version clearly the jury rejected.
8. The appellant has two previous convictions. The second of those is of importance. On 6th March 2002 he was convicted of causing grievous bodily harm with intent. That offence had taken place in July 2001. The appellant and others had set upon a man called Buckley. He had been repeatedly hit, kicked and stamped upon on the ground. He was rendered unconscious and he remained in that state for some days. It was nine days after that conviction that Mrs Cullinane met her death. The appellant was on bail at the time awaiting sentence. He received 46 months in a Young Offender Institution.
9. In his sentencing remarks the judge said:

"It is difficult to imagine a more cold-blooded, callous and evil crime."

When dealing with this appellant he said:

"Michael Stapley, on the jury's verdict you were the other man who chopped and battered this unfortunate woman to death. In your case too it seems to me there is only one possible sentence; again it is one of life imprisonment. I make a slight reduction in the minimum term and I do so solely on the grounds of your youth. The nominal determinate term in your case would have been 32 years; half of that is 16 years and I take off a further year for your time in custody, so you will serve a minimum term of 15 years."

10. Section 109 of the Powers of Criminal Courts (Sentencing) Act 2000 provides as follows:

"(1) This section applies where-

(a) a person is convicted of a serious offence committed after 30th September 1997; and

(b) at the time when that offence was committed, he was 18 or over and had been convicted in any part of the United Kingdom of another serious offence.

(2) The court shall impose a life sentence, that is to say-

(a) where the offender is 21 or over when convicted of the offence mentioned in subsection(1)(a) above, a sentence of imprisonment for life,

(b) where he is under 21 at that time, a sentence of custody for life under section 94 above,

unless the court is of the opinion that there are exceptional circumstances relating to either of the offences or to the offender which justifies its not doing so."

11. It is common ground that the appellant in this case was subject to the provisions of that section. He had been convicted of the offence of causing grievous bodily harm with intent on 6th March 2002. That was a serious offence within the meaning of that part of the Act. In consequence he was subject to an automatic life sentence.
12. The sole point raised in this appeal by Mr Long is that the specified term of 15 years was too long. He relies on the authority of R v Mason and Sellers [2002] 2 Cr.App.R (S) 128 at page 574, [2002] EWCA Crim 699 That was a case in which the appellants were convicted of conspiracy to murder. The murder was in fact carried out and the court considered the proper approach to sentence in those circumstances. There were, it must be said, factual differences between that case and the present but Mr Long relies on the principle set out in the judgment of Clarke LJ, in particular at paragraph 47 which reads as follows:

"On the other hand, we do not think that it would be appropriate to arrive at a determinate sentence for conspiracy to murder by working backwards from the period which the court would be likely to recommend as the 'tariff' for murder. The sentence for murder itself has always been treated differently in our sentencing system from sentences for other crimes. Moreover, although it may be that these appellants could have been charged with aiding and abetting the murder of the victim, they were not and we do not know why that is so. In these circumstances we have reached the conclusion that it would be wrong to sentence them as if they had been convicted of murder, which they were not."

In the immediately preceding paragraph the court had considered the case of R v Daddow (1996) 2 Cr.App.R (S) 10. The judgment reads as follows:

"In considering Daddow, it must be borne in mind that the Court was not laying down guidelines for sentencing in conspiracy to murder cases where the murder is carried out. The court was considering whether a sentence of 18 years was manifestly excessive, so that the observation that the sentence was 'entirely appropriate' must be seen in that light. Thus a somewhat longer sentence than 18 years might also been considered 'entirely appropriate'. The fact is that the court sets the tariff for murder at a substantially higher level than for other crimes because of society's particular abhorrence of the crime of murder. In these circumstances we are of the view that the level of sentence for conspiracy to murder in cases where the murder has been carried out should reflect that fact."

13. Each member of this court takes the view that in considering the appropriate sentence for conspiracy to murder the court should have regard to the guidelines in terms of recommended minimum terms to be served in cases of murder. In any other case of conspiracy the court determines the defendant's role and the extent of the defendant's responsibility before deciding upon sentence. There is no reason in principle why any different approach should be adopted in cases of conspiracy to murder. Mr Long accepts the logic of that proposition. It is accepted on behalf of the appellant that the judge was entitled to conclude as he did that by the jury's verdict this appellant was the other man who chopped and battered this unfortunate woman to death.
14. It is important, therefore, to consider what guidance there is to be found in the Practice Statement (Crime: Life Sentences) [2002] 1 WLR 1789. The Lord Chief Justice identified factors that would affect the length of the recommended minimum term in various bands. These can be summarised as follows:

"1. Twelve years for the killing of an adult victim arising from a quarrel or loss of temper between two people known to each other. (49:10)

2. Fifteen to Sixteen years. The higher starting point will apply to cases where the offender's culpability was exceptionally high or the victim was in a particularly vulnerable position. Such cases will be characterised by a feature which makes the crime especially serious, such as: (a) the killing was 'professional' or a contract killing; (b) the killing was politically motivated; (c) the killing was done for gain (in the course of a burglary, robbery etc); (d) the killing was intended to defeat the ends of justice (as in the killing of a witness or potential witness); (e) the victim was providing a public service; (f) the victim was a child or otherwise vulnerable; (g) the killing was racially aggravated; (h) the victim was deliberately targeted because of his or her religion or sexual orientation; (i) there was evidence of sadism, gratuitous violence or sexual maltreatment, humiliation or degradation of the victim before the killing; (j) extensive and/or multiple injuries were inflicted on the victim before death; (k) the offender committed multiple murders." (49:13)

Whatever starting point is appropriate it may be varied to take account of aggravating or mitigating factors (49:14). Aggravating factors in relation to the offence include those set out at paragraph 49:15:

"... (a) the fact that the killing was planned; (b) the use of a firearm; (c) arming with a weapon in advance; (d) concealment of the body, destruction of the crime scene and/or dismemberment of the body."

Those in relation to the offender at paragraph 49:16 include:

"... the offender's previous record and failures to respond to previous sentences, to the extent that this is relevant to culpability rather than to risk."

Mitigating factors are set out in paragraph 49:17 including:

"... (a) an intention to cause grievous bodily harm, rather than to kill; (b) spontaneity and lack of premeditation; (c) the offender's age; (d) clear evidence of remorse or contrition; and (e) a timely plea of guilty."

15. Turning to the facts of this case, it is apparent that in considering the higher starting point there are three features present. First of all this was a contract killing. Secondly, the victim was vulnerable. She was a 27-year-old lady who was very heavily pregnant at the time. Thirdly, extensive and multiple injuries were quite clearly inflicted upon her before she died.
16. So far as aggravating factors are concerned, it is self-evident that this killing was planned. Secondly, considerable efforts were made to dispose of the body by way of depositing it well away from the scene. Thirdly, in relation to the offender, a matter of nine days before this killing he had been convicted of an extremely serious offence of causing grievous bodily harm with intent. Had he been convicted of murder it is likely that taking into account those factors a minimum term in the region of 19 years would have been appropriate.
17. The only mitigating factor was his age; he was 20 at the material time. But in the context of the case as a whole that amounted to precious little, although proper weight was given to it by the judge when he sentenced.
18. We have come to the conclusion that the judge in his approach to sentence was entirely right in relation to the term that he ordered. This was a case where it was proper to order a very substantial term in circumstances where, on the jury's verdict, the appellant was responsible for a killing which was chilling and brutal. To a limited extent we depart from the approach in Mason and Sellers for the reasons that we have set out. The consequence is that this appeal must be dismissed.