England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM NEWCASTLE CROWN COURT
HHJ MILFORD

		Royal Courts of Justice Strand, London, WC2A 2LL
		26 May 2005

Lord Justice Latham :

1. This is an appeal against the length of a minimum term set by HHJ Milford QC at the Crown Court at Newcastle, following the appellant's plea of guilty on re-arraignment to the offence of murder. The judge set the minimum term at 14 years and six months having given credit for the six months which had been spent in custody prior to sentence. The judge arrived at the minimum term under Schedule 21 to the Criminal Justice Act 2003 ("the Act"). By taking a starting point of fifteen years and concluding that the aggravating and mitigating factors balanced each other out.
2. At about 8.30 pm on the 1^st January 2004 the 55 year old victim ("the deceased") was making his way home from a public house where he had purchased four bottles of beer when he was confronted by the appellant. The appellant, then aged 22 had been squatting at a flat nearby and was in possession of some stolen goods which he tried to sell to the deceased in order to fund his heroin addiction. An argument ensued during the course of which the appellant produced a knife and used it to strike the deceased in the neck. The single stab wound caused serious arterial damage from which the deceased died. The appellant left the scene. He was subsequently arrested; when interviewed, initially denied being anywhere near the scene of the incident. Eventually, however, he admitted that he had been there, and had confronted the deceased. He said that the death was a combination of accident and self defence.
3. The deceased was described in the evidence as a gentle and considerate man. He had, however consumed a considerable amount of alcohol that evening. His blood alcohol level was found to be 2½ times the limit for driving. There was, however nothing in the evidence which would suggest he was so affected by drink as to be incapable. It was apparent that he was accustomed to drinking large quantities of alcohol.
4. As we have already indicated, the appellant ultimately pleaded guilty on re-arraignment. A written basis of plea, which was accepted by the Crown, was put before the judge. It was in the following terms:

"1. The defendant approached the deceased and attempted to sell him stolen goods.

2. A dispute arose as to the price the deceased was to pay. The argument became heated.

3. The defendant momentarily lost his temper and produced a knife which he had for his own protection and lunged at the deceased with only minimal force, causing the injury from which he died.

4. The deceased's use of violence was not premeditated and he had no intention to kill.

5. The Crown cannot gainsay any of the above."

5. It was in these circumstances that the judge had to consider firstly the starting point, and then the aggravating and mitigating factors in accordance with Schedule 21 of the Act. It may be helpful to set out the way in which the judge carried out his task. He said:

"First, I must fix the starting point under Schedule 21. I am satisfied that you do not meet the criteria for either a whole life sentence or a thirty year starting point, and the Crown do not seek to persuade me otherwise. Accordingly, the starting point, fixed by the Act is 15 years. I must then consider the aggravating features and the mitigating features of the case which might cause addition or subtraction to that figure. As to the aggravating features, despite the arguments of your counsel, I accept that this deceased man was particularly vulnerable. He was more than 30 years older than you, he is described as looking older than his actual age and he was disadvantaged at the time through a high level of alcohol in his system. He was two and a half times the limit.

This offence involves the use of a knife which you were carrying, having taken it from the flat where you were living. In the written basis of plea, which I honour, you say you were carrying it for your defence. But had you not been carrying it the deceased would be alive, and when you took it out immediately before using it you then used it offensively. I regard the carrying of this knife in a public place as a particularly significant aggravating feature.

Additionally, you have been previously convicted of affray, an offence of violence in a public place, for which you were sentenced to 9 months imprisonment at this Crown Court, this offence occurring almost two years previously to the day.

As to the mitigating features, there was no intention to kill, your intention was to cause grievous bodily harm. There was no planning or premeditation. You are young, you are only 23 years of age, and you have pleaded guilty and have thus demonstrated your remorse, albeit that that plea was entered on the morning of your trial. I also have regard to your background which is written up in the psychiatric report and everything which has been advanced on your behalf by your counsel Mr Hedworth QC.

Taking all these factors into account the aggravating features and the mitigating features, they seem to me to balance themselves out and the minimum term I would fix is 15 years.

However I must take account of the time you have spent in custody thus far, which is six months, which would not otherwise count. This reduces the minimum term to 14 years and six months."

6. The appellant does not seek to suggest that the judge was wrong to take 15 years as the starting point. Mr Hedworth's submission is that there were no aggravating factors. Firstly he submits that a healthy 55 year old man could not properly be described as "particularly vulnerable because of age or disability", which is the wording in paragraph 10 (b) of Schedule 21 to the Act. Secondly, he submits that, in the circumstances of this case, the appellant's possession of a knife cannot be regarded as a factor aggravating the murder. The fact that he had the weapon with him, for defensive purposes, resulted in his committing murder rather than assault, but that was a matter properly to be subsumed within the fixing of the starting point. Lastly, he submits that the previous offence of affray was not of sufficient seriousness to justify treating it as an aggravating factor.
7. Schedule 21 imposes on the sentencing judge the requirement to consider the sentence in a structured, two stage process. As this court has said in R –V- Peters [2005] EWCA Crim 605 at para 3, the purpose is "…..to ensure consistency of approach to sentences". And its practical application is well exemplified by the way the judge dealt with the sentencing exercise in the present case. Leaving aside the question of evaluation in relation to the criteria for fixing the starting point, and the individual aggravating and mitigating factors, the main difficulty in any two stage process is to ensure that there has been no double counting. That is the main complaint that Mr Hedworth makes in the present cas. It was, he submits, because the appellant was carrying the knife that death resulted; and accordingly the possession of the knife had been taken into account by the judge in fixing the starting point at 15 years. Whilst accepting that paragraph 10 of Schedule 1 does not purport to set out an exhaustive list of aggravating factors, he submits that it is significant that the use of a weapon is not one of them. Indeed the only mention of a weapon is in paragraph 5(2)(b) which identifies a murder involving the use of a firearm or explosive as being a case which would normally result in a 30 year starting point.
8. It seems from us that Mr Hedworth's submission is correct to this extent, that the use of a weapon such as a knife, will not necessarily, and of itself, be an aggravating factor. For example if a knife is picked up in the course of a quarrel, or a fight, and then used in the fatal attack, it is difficult to see how the use of the knife can then be said to be an aggravating factor. That is why the offence is one of murder. Equally, if a person has a lawful excuse for the possession of a knife in a public place, for example where he or she has just bought a kitchen knife and is taking it home and a fight ensues in which the knife is used it would be difficult to describe the carrying or the use of the knife as an aggravating factor. But that is not this case. Although the basis of plea, which the judge said that he honoured, was that the knife was carried for defensive purposes, nonetheless the appellant had no lawful excuse for carrying it. That was what the judge considered to be the aggravating factor. The Judge did not consider that the use of the knife was the aggravating factor. It follows, in our judgment that the judge was not guilty of double counting.
9. Accordingly the question that this case poses is whether or not the judge was entitled to treat unlawful possession of the knife as an aggravating factor. In our view he was. This court has repeatedly held that if a weapon such as a knife is unlawfully carried by someone in a public place and injury or death has ensued, the sentence imposed by the court must reflect an element of deterrence. As Swinton Thomas LJ said in Pollin [1977] 2 Cr App R (S) 356:

"The general public is concerned, rightly so by the violent use of knives are used and serious injuries are caused then the court must impose severe sentences."

10. And in the context of the problem with which are faced, this court upheld the conclusion of the sentencing judge that the possession of the knife by the appellant in R –v- Peters (supra) was an aggravating feature where the judge had concluded that the appellant appeared to be one of those "to whom the cultural possessing of a knife in the street is acceptable". In Attorney General's Reference 33 of 1996 [1997] Cr App R(S) 10, this court considered sentencing guidelines in manslaughter cases and, in particular, cases of manslaughter where the offender has caused death by the use of a knife. In that case, the defender became involved in a fight with other young men in the car park of a nightclub, produced a knife, and stabbed a number of his opponents one of whom died. In interview he said that he had been attacked and had produced the knife in self defence. He said that he was carrying it in case he had trouble with others with whom he had recently fought. Kennedy LJ, giving the judgment of the court, said at page 18:

"Even when a particular type of manslaughter is isolated from the rest it has to be recognised that it covers a wide field and if justice is to be done sentencers must not be put in straight jackets, but for the reasons identified in this judgment it seems to us that where a defendant deliberately goes out with a knife, carrying it as a weapon, and uses it to cause death, even if there is provocation he should expect to receive on conviction on a contested case in the region of ten or twelve years. The alternative would be to say that although the tariff should remain the same the indictment should contain a separate count of carrying an offensive weapon which would separate and normally a consecutive sentence, but that seems to us to be a somewhat cumbersome approach."

11. There is no doubt that the case of Peters and The Attorney General's Reference No 33 of 1996 can be distinguished factually from this case. In Peters, Judge LJ clearly put the appellant in that case in a different category from the appellant in the present case who, on the basis of his plea, could not properly be described as one to whom the cultural possessing of a knife in the street is acceptable. In Attorney General's Reference No 33 of 1996 the knife in question was a butterfly knife which Kennedy LJ described at one point in his judgment as a "weapon of a sinister type". But it seems to us that these distinctions merely go to the extent to which the unlawful possession of the knife in question aggravates the offence. The mischief with which these cases were concerned was the unlawful carrying of a knife in a public place. The consequence of carrying the knife is that is available for use. The fact that it is being carried is some evidence that the carrier may be prepared to use it. In our judgment that is sufficient to justify the conclusion that a court can treat the unlawful possession of the knife as an aggravating factor. The extent to which it should be so treated in any particular case will depend entirely on the circumstances. We therefore consider that the judge was entitled, as a matter of principle, to treat the appellant's unlawful possession of the knife in the present case as an aggravating factor, and that it was appropriate for him to do so in this case.
12. We turn then to the other two factors which the judge considered had aggravated the offence. The previous conviction for affray, whilst certainly capable of being an aggravating factor, does not seem to us to have played very much part in the judge's ultimate conclusion. And we need say no more about it. He was, however, clearly concerned by the nature of the incident in the sense that it was a confrontation between a young man and a significantly older man who was affected by alcohol. We are doubtful whether the deceased could properly have been described as "particularly vulnerable because of age or disability", as envisaged in paragraph 10(b) of Schedule 21. But the fact of the matter is that the murder arose out of the appellant's persistent and determined criminal conduct in seeking to sell stolen property to passing strangers. On the evidence it is clear that the deceased, who was a mild and gentle man would not have provoked a confrontation. The murder therefore arose out of provocative and aggressive solicitation in a public place. That is behaviour which, in our view, is properly described as an aggravating factor even though it does not fall within any of the factors specifically identified in Paragraph 10 of the Schedule. The overall circumstances, however described, were therefore properly treated by the judge as a matter which should be weighed in the balance as an aggravating factor. Despite the fact that there were the mitigating factors as identified by the judge, we do not consider that the balance that he eventually struck was one with which this Court could or should interfere.
13. Accordingly this appeal is dismissed.