England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
(1) THE CENTRAL CRIMINAL COURT
HIS HONOUR JUDGE KRAMER
(2) THE CROWN COURT AT SNARESBROOK
HIS HONOUR JUDGE RADFORD
(3) THE CROWN COURT AT WARWICK
HIS HONOUR JUDGE CHAPMAN

		Royal Courts of Justice Strand, London, WC2A 2LL
		10/03/2005

Lord Justice Judge:

1. We heard these three appeals together. In unrelated cases, the appellants pleaded guilty to or were convicted of murder. Mandatory life sentences were passed on them. In accordance with s 269(2) of the Criminal Justice Act 2003, the judge determined the minimum term each should serve before the early release provisions would apply. Each now appeals against the minimum term, and the cases have been dealt with in a Guideline Court.
2. The first linked feature of these cases arises from the fact that the offenders were young. Two of them were 19 ½ years old when they committed murder, and 20 when sentenced, and the third appellant was just 18 when she committed murder, and not yet 19 when she was sentenced. The second linked feature was that the minimum term was assessed on the basis that, at the time of the killing, the offender intended not to kill but to cause the victim grievous bodily harm. A third feature of general importance emerged during the course of the argument in Peters, and concerned one of the potential problems relating to the calculation of credit to be given to the offender who pleads guilty to murder.
3. Guidelines, whether resulting from cases decided in this Court, or produced by the Sentencing Guidelines Council, are guidelines: no more, no less. The purpose is to ensure consistency of approach among sentencers. It is critical to any informed understanding of the sentencing decision, however, that the precise circumstances of and in which each crime is committed are different from each other. Each victim is a different individual: so is each defendant. Unless a mandatory sentence is prescribed by statute, as it is for murder, the sentencing decision is not compartmentalised, nor capable of arithmetical calculation. Broad guidance will produce sentencing consistency, but precisely because the circumstances of the offence and the offender vary, and may vary widely, an individual sentencing decision appropriate for the unique circumstances of each case is required. This principle remained unchanged when Parliament created the legislative sentencing framework to be found in s 269 and Schedule 21 of the Criminal Justice Act 2003. (R v Sullivan [2005] 1 CAR 23; R v Last [2005] EWCA Crim 106.)
4. In murder cases, the protection of the public, rightly regarded as the prime consideration, is achieved by the mandatory life sentence itself. The "minimum term" prescribed by s 269(2), to reflect punishment and deterrence, requires the court to assess "the seriousness of the offence, or of the combination of the offence and any one or more offences associated with it" (s 269(3)). In short, the legislative framework itself recognises that even in murder cases an identical level of seriousness cannot be attributed to each case. For the purpose of assessing seriousness the court must have regard to what s 269(5) describes as the "general principles" in Schedule 21, as well as any general guidelines relevant to the individual case, which are not incompatible with Schedule 21.
5. Schedule 21 provides a series of criteria to be taken into account when the court is determining the appropriate minimum term to reflect the "seriousness" of the individual offence. The process of determination begins with the identification of the starting point, which should normally, but we emphasise, not invariably or inevitably, be taken. None of these provisions enables the court to avoid its obligation to make a careful analysis of all the relevant facts, including the statutory criteria and guidelines. Sentencers have for many years been required to explain their decisions, even if briefly, not only to the offender himself but also for the information of the public generally. Under Schedule 21 they are required to identify the starting point they have taken, and if they depart from what is described as the "normal" starting point, they are obliged to explain their reasons. Nevertheless, the reality, as the statute acknowledges, is that justice cannot be done by rote. This principle applies equally to cases where the judge considers that the seriousness of the offence calls for a longer sentence than the normal starting point, as to cases where the proper minimum term is lower.
6. Paragraphs 6 and 7 of Schedule 21 identify starting points of 15 years and 12 years as the minimum term for cases which lack the features previously identified in paragraphs 4 (whole life) and paragraph 5(1) and 5(2) (30 years). The court must further address any relevant aggravating or mitigating factors, some, but again not all of which are, nor could be specified in the statute. And accordingly, when making his sentencing decision, the judge is not rigidly bound by or limited to the specific features included in the list of aggravating factors in paragraph 10 or mitigating factors in paragraph 11. As Lord Woolf CJ explained in R v Last, "Schedule 21 does not seek to identify all the aggravating and mitigating factors, it merely provides relevant examples".
7. The present cases provide two clear examples of unspecified features relevant to the determination of the minimum term, running in opposite directions. One of these deaths occurred as the result of a fight between rival groups of young men in broad daylight, during the course of an incident which was or might well have been witnessed by people and indeed children going about their lawful activities. At the time of this killing, this particular street turned into a dangerous place. Such a crime has a significant public element. It produces huge public dismay. It is therefore an aggravating feature of the case not included in the aggravating features identified in paragraph 10. Another of these cases involves a young woman, just 18 years and 2 months old at the time of the murder, whose life until that date was rightly described by the judge as "wretched". Her catastrophic start, and its link with the killing, and the impact of the killing on her, provide mitigating features, properly to be taken into account, which, again, are not specified in paragraph 11.
8. One problem arising from the legislative framework is that the sentencing court may approach the decision, or be invited to do so, as if the ultimate sentence represents a mathematical calculation. It does not. Our attention was drawn to R v Warsame [2004] EWCA Crim. 2770. In that case the Court explained its decision by reference to the appropriate bracket of years to be added to the normal starting point to allow for one specific aggravating feature, and to be deducted from it to allow for one mitigating feature. In the course of one of these appeals, we allowed counsel to develop an argument based on a calculation of the reduction from the starting point for individual mitigating factors, by periods of months or years, and then adding back a calculation of the months or years to allow for specific aggravating features. The exercise demonstrated how unworkable such an exercise normally is. Too many factors interlink. In reality, save perhaps in a most exceptional case, we doubt whether the method of determining the sentence adopted in Warsame would be necessary or appropriate to explain how the sentencing judge determined the minimum term. In the final analysis, the true seriousness of the offence, which the minimum term is intended to reflect, inevitably represents a combination, and simultaneously, a balancing of all the relevant factors in the case.
9. We should further emphasise that Schedule 21 of the Criminal Justice Act 2003 does not affect any change in the practice of this Court when it is invited to consider an appeal against the judge's determination of the minimum term to be served by the defendant. The Court will examine the specified period. If, looked at overall, this Court takes the view that the end result fell within the appropriate range of sentence and the margin of judgment and discretion given to the sentencing judge, nice points, whether or not based on a mathematical calculation, about whether he allowed sufficiently for this, or that specific feature of the case, will not result in a successful appeal. In short, this Court will not interfere with the minimum term specified by the judge unless, in all the circumstances, it is manifestly excessive nor wrong in principle.

Age

10. Schedule 21 includes repeated references to the age of the offender. Significant distinctions to the normal starting point are drawn between offenders who are aged 21 or over, 18 or over, or under 18 at the time of the offence. Thus, for example, for an offender aged 18 or over whose case does not fall within paragraph 4(1) or 5(1) or 5(2), the appropriate starting point is 15 years, but if he is aged under 18, the appropriate starting point becomes 12 years. And quite apart from different starting points directly related to age, there is a specific, additional, mitigating feature under paragraph 11(g), "the age of the offender".
11. It has long been understood that considerations of age and maturity are usually relevant to the culpability of an offender and the seriousness of the offence. Schedule 21 underlines this principle. Although the passage of an eighteenth or twenty-first birthday represents a significant moment in the life of each individual, it does not necessarily tell us very much about the individual's true level of maturity, insight and understanding. These levels are not postponed until nor suddenly accelerated by an eighteenth or twenty-first birthday. Therefore although the normal starting point is governed by the defendant's age, when assessing his culpability, the sentencing judge should reflect on and make allowances, as appropriate upwards or downwards, for the level of the offender's maturity. In two of these appeals, the offender was aged 19 ½ when the offences were committed. In the third, the offender was 18 years and 2 months. If the murder which culminated in the death of someone precious to the third offender had happened in the course of a dispute 3 months earlier, she would not quite have reached 18 years. A rigid application of the starting point in Schedule 21 would mean that the 3 months difference in age should be reflected by a difference of 3 years in the sentence. Sentencing decisions cannot be prescribed by such accidents of time. We can illustrate this problem a little further by taking the all too familiar case of a group of youths convicted of murder following an attack on a passer-by in the street late at night. They may be 17, 19 and 21 years old. Normally the 21 year old would be likely to be the most mature. But there are cases where the 17 year old, although the youngest, is in truth the leader of the group, and the most violent of the three, and the most culpable, who triggered off the attack and indeed inflicted the fatal blow. It may produce an unjust result if on the basis of his age alone, the minimum term in his case were lower than the sentence on his co-defendants. Therefore, in relation to offenders aged up to 21 or even 22 years, the determination of the minimum term in accordance with the legislative framework in Schedule 21 needs to be approached with an acute sense of how inevitably imprecise the statutory criteria may sometimes be to issues of culpability, and ultimately to "seriousness" as envisaged in s 269 itself.
12. The first stage in the process nevertheless remains the prescribed statutory starting point. This ensures consistency of approach, and appropriate adherence to the relevant legislative provisions. Schedule 21 does not envisage a moveable starting point, upwards or downwards, from the dates fixed by reference to the offender's eighteenth or twenty-first birthdays. Nor does it provide a mathematical scale, starting at 12 years for the eighteen year old offender, moving upwards to 13 years for the nineteen year old, through to 14 years for the twenty year old, culminating in 15 years for the twenty-one year old. The principle is simple. Where the offender's age, as it affects his culpability and the seriousness of the crime justifies it, a substantial, or even a very substantial discount, from the starting point may be appropriate. One way in which the judge may check that the discount is proportionate would be for him to consider it in the context of the overall statutory framework, as if Schedule 21 envisaged a flexible starting point for offenders between eighteen and twenty-one. This would have the advantage of linking the mitigation which would normally arise from the offender's relative youth with the statutory provisions which apply to an offender a year or two older, or younger, and would contribute to a desirable level of sentencing consistency. Due allowance should then be made for the relevant aggravating and mitigating features to produce the final determination of the minimum term, and thereafter the judge should explain the reasons for the determination in open court.

An intention to cause serious bodily harm rather than to kill

13. Paragraph 11(a) of Schedule 21 identifies an intention to cause serious bodily harm rather than to kill as a potential mitigating factor. An intention to cause serious bodily harm is a sufficient intention for murder, and violence inflicted with such an intent remains an offence of the utmost seriousness requiring the mandatory life sentence in the same way as murder resulting from an intent to kill. It has however long been recognised that, all other features of the case being equal, the seriousness of a murder committed with intent to kill is normally more grave and serious than one committed with intent to cause grievous bodily harm. Paragraph 11(a) gives effect to that common understanding.
14. That said, no specific distinction based on the offender's intent is made in any of the starting points under paragraphs 4 or 5(1) and (2), 6 and 7, and there is no specific or special starting point for cases where the offender intended really serious harm rather than death. Moreover paragraph 11(a) underlines that such an intention to cause grievous bodily harm, as opposed to an intention to kill, "may" provide relevant mitigation, but not necessarily, and not always. Thus, murder committed with an intent to kill may attract yet greater mitigation than a killing to which paragraph 11(a) applies. For example, where the killing represents an act of mercy, motivated by love and devotion, as envisaged in paragraph 11(f), the intention is indeed to kill, to provide a merciful release. It is unlikely that the mitigation in such a case will be less than the mitigation allowed to an offender who involves himself in an unlawful violent incident and, intending to do really serious harm, causes death. Similarly, there are cases in which death, even if unintended, is a possible or likely consequence of the offender's premeditated conduct. For example, those who abduct a child intending to blackmail the parents into providing a large ransom may deliberately make the parents aware that the child is being tortured, to encourage a positive response from the parents. In the course of torture the child may die. Just because the very objective of the criminal is a ransom, death may not be intended. If it is a consequence of the abduction or torture, we doubt whether much, if any, allowance would normally be made in mitigation for the fact that the death of the child was an unintended consequence of the deliberate infliction of bodily harm.
15. Precisely the same considerations apply to, for example, paragraph 11(e) – "the fact that the offender acted to any extent in self-defence", which is an issue in one of these appeals. Cases will vary from the offender faced with serious and direct violence who nevertheless went too far in self-defence, to the defendant faced with a very minor threat, whose response in killing his assailant was grotesquely disproportionate. In short, the mitigating features identified in paragraph 11 of Schedule 21 do not all work in the same way, nor do they always have the same effect.
16. We have sufficiently demonstrated that it cannot be assumed that the absence of an intention to kill necessarily provides any or very much mitigation. It does not automatically do so. That said, in many cases, particularly in cases where the violence resulting in death has erupted suddenly and unexpectedly, it will probably do so, and it is more likely to do so, and the level of mitigation may be greater, if the injuries causing death were not inflicted with a weapon.

Guilty Plea

17. The Sentencing Guidelines Council has recently provided assistance about the approach to a discount following a guilty plea to murder. We need not repeat the Guidelines, nor indeed do more than draw attention to the recent judgment of this Court presided over by the Lord Chief Justice in R v Last.
18. It was pointed out in argument by Mr Stephen Solley QC that there are a number of cases where a defendant facing a charge of murder requires expert legal advice before he can sensibly decide on his plea. We accept this proposition, particularly in the case of a defendant who is young, or who suffers from mental problems or emotional inadequacy.
19. The defendant may accept that he was responsible for the fatal injuries, or contributed to them, or was responsible for the injuries which the prosecution witnesses say caused death (even if his experts do not), but he will nevertheless often need expert legal advice whether the case should properly be contested on the basis of absence of intent, self-defence, provocation, or diminished responsibility. In relation to the allowance for pleas of guilty, even if there is a delay in obtaining the advice of leading counsel, the defendant should not normally expect to obtain the maximum discount unless a very early indication is given that as a matter of fact he accepts responsibility for the fatal injuries, or involvement in death. Once he has seen his leading counsel and received advice, if he is then to benefit from the maximum discount, it is necessary for a plea to be indicated as soon as practicable thereafter. Subject to this consideration, we are not unsympathetic to the argument that in some murder cases at any rate, the first reasonable opportunity firmly and finally to indicate an intention to plead guilty to murder may not arise until after the defendant has seen leading counsel. Equally, it is essential for leading counsel instructed in such cases to arrange a consultation with the defendant at the earliest practicable date. When the defendant has indicated that he accepts responsibility for the death, the case management powers of the court should be exercised to require that the necessary consultation should take place within a specified time.

Benjamin Peters

20. Peters was born in June 1984.
21. On 15th September 2004, at the Central Criminal Court before HHJ Kramer QC, on re-arraignment he pleaded guilty to the murder of Jay Middleton on 8th January 2004. Counts of violent disorder and damaging property were left on the file on the usual terms.
22. Peters was sentenced to custody for life. The specified minimum period under s 269 of the Criminal Justice Act 2003 was 9 years, less 231 days spent on remand.
23. The count of murder involved Peters alone. Three co-accused, Marlon Brook-Edwards, Dwite Scott and Jermain Hynes pleaded guilty to the violent disorder alleged in count 3, and Brook-Edwards also pleaded guilty to damaging property, count 4, as well as possession of a class B drug with intent to supply on a separate indictment.
24. Jay Middleton was born in December 1983. He was a powerfully young built man, with previous convictions, who shortly before, his death, had been released from a substantial custodial sentence. In the middle of the day on 8th January 2004, a confrontation occurred between two groups of young men in a street in Walthamstow, north London. One group included the appellant, and his co-accused who lived locally. The other group consisted of Jay Middleton and three of his friends. Effectively they were outsiders. The confrontation culminated in Jay Middleton's death. He was violently and repeatedly stabbed by Benjamin Peters. The co-accused, who were present during the confrontation, attacked and caused significant damage to the car in which Jay Middleton's group of friends had arrived at the scene.
25. This was not the first confrontation between these groups of young men. A year or two earlier the appellant's hand had been very badly cut by a member of the group of which Jay Middleton was a member. The Crown suggested that the troubles were consistent with a "turf" dispute between the two groups.
26. On 8th January, Middleton drove with two of his friends in his mother's car to Walthamstow to meet another friend who attended college there. As they approached the agreed rendezvous, the three young men in Middleton's car saw the friend they had arranged to meet. They also observed a group of about six youths, including the appellant. This group appeared to pay particular attention to Middleton's car as it drove past them.
27. Middleton and the two passengers alighted from the car and met up with the fourth member of their group. All four started to walk back up towards the main road, where Peters' group were standing. It was now about 1.30 pm. There were a large number of pedestrians and college students and school children, some walking about and some taking a lunch break in the area.
28. The two groups came together. There was an exchange of words. Middleton asked Peters if his name was Ben. He then made a telephone call to a man called Wesley. The telephone connection having been made, Middleton handed or offered the phone to Peters who declined to take it from him. Middleton then spoke into the telephone, saying that Peters did not want to speak, "he shook", meaning that Peters was frightened. He also called Peters a "pussy", no doubt intending to insult or humiliate him.
29. Peters was next seen holding a knife. He grabbed hold of Middleton with his free hand and stabbed him repeatedly, using considerable force. A number of people in the surrounding area were heard to be cheering the participants in what they thought was a struggle, although in fairness, they could not all see the knife. Middleton punched his way out and managed to get away, and ran down the road, pursued by members of Peters' group. He entered a convenience store, and as he did so he was again stabbed in the back. This individual was not identified. Someone yelled "get back to your manor". Middleton ran into the back of the shop, where he collapsed. The police and an ambulance were called. A doctor arrived at the scene. He immediately performed an emergency operation, but he was unable to save him.
30. The cause of death was a stab wound to the left side of the chest, just below the armpit, which had passed through Middleton's ribs and penetrated his heart. He had further stab wounds to his chest, left shoulder, and both arms, as well as one to his back. The fatal wound was about 13 cm deep, and because it had passed partly through a rib, it was inflicted with full force or something approaching full force. The wound to the back was comparatively superficial. It did not contribute to death. The wounds on the arms were consistent with defence injuries.
31. In the immediate aftermath of the stabbing, Peters' group moved towards the car which Middleton had driven to the area. Someone suggested an attack on the car. The group smashed the windows with a brick picked up from a paved nearby area, kicked the side panels of the door, and one of them climbed onto the bonnet and jumped up and down on it. Two men were seen to slash the tyres of the car. One of the cuts in a tyre was found to have the deceased's blood associated with it. Although nothing compared to Middleton's death, this aftermath was a most unpleasant display of public violence.
32. Thereafter Peters disappeared into hiding. However on 16th January he walked into a police station, and informed the station officer that he was a witness to the stabbing, asserting that this was the first opportunity he had to report to the police station. He was arrested.
33. When interviewed, he claimed to have been present at the scene, but denied stabbing the victim. Later, having been identified as the person who had stabbed Middleton, he gave an account of how he became involved in a fight with Middleton during which punches were exchanged. He denied being in possession of a knife, and denied stabbing Middleton. He admitted that he had been involved in the attack on the motor car, and had thrown a brick through the window. Peters' blood was found on a brick left inside the car.
34. The evidence about the circumstances in which Peters came into possession of the knife was uncertain. When the case was listed for trial, Peters pleaded guilty to murder. He did so at a time when the principal prosecution witnesses against him had taken what were described by the Crown as "positive steps" not to be present at their known addresses. The evidence that Peters produced a knife was given by one of these witnesses. It was never tested. On the available evidence, the judge approached his sentencing decision on the basis that Peters may not have been armed when the confrontation began, and may well have picked the knife up during the course of the confrontation. He did however consider that Peters appeared to be one of those "to whom the culture of possessing or using a knife in the street is acceptable."
35. At trial the Crown accepted that the behaviour of Middleton and his group in approaching Peters and his group involved an element of provocation. Mr Solley QC on his behalf submitted that, given the earlier incident in which he had been injured, the appellant would have felt a degree of fear and the need to defend himself. The case proceeded on the basis that the attack on Middleton was unpremeditated, and that while he intended to cause really serious bodily harm, he did not intend Middleton's death.
36. Peters had had a number of previous convictions, including possession of both class A and class B drugs, and one offence of possessing a bladed weapon in a public place, committed just under three months earlier.
37. In his sentencing remarks, Judge Kramer described Middleton's death as the result of a violent knife attack carried out by Peters in broad daylight in a street in Walthamstow. He noted a total of seven stab wounds, including the fatal wound, inflicted with a degree of force "approaching full force". He believed that whether or not the two groups could be described as rival gangs, there was "an element of a turf war" between them.
38. The sentence, custody for life, was mandatory. Judge Kramer then assessed the appropriate minimum term in accordance with s 269 of the Criminal Justice Act 2003. He took account of the appellant's age: his plea of guilty, tendered at a time when crucial prosecution witnesses were absent and unwilling to go to court: the absence of an intention to kill: the absence of any premeditation: and the elements of provocation and fear which nevertheless did not provide any defence in law.
39. He considered that the appropriate starting point under schedule 21 was 15 years. In the circumstances, he assessed the minimum term to be served at 9 years. He then deducted the time spent in custody awaiting trial.
40. It was argued on behalf of this appellant by Mr Solley that the judge failed sufficiently to take account of the fact of the guilty plea, in the context of the difficulties faced by the Crown, the agreed absence of an intention to kill, and the element of provocation and self-defence recounted in the narrative. Mr Solley suggested that neither of the specific aggravating features identified in paragraph 10(a) of Schedule 21 were present. However, the judge considered, with justification, that Peters appeared to him to be an individual to whom possession of a knife in a public place was "acceptable", and that the incident which resulted in Middleton's death took place in a normally peaceful street in broad daylight. It is clear from his sentencing remarks that the judge had the relevant features in his mind, including the age of this appellant when the offence was committed. It was not necessary for him to set out and identify which of the aggravating features found in paragraph 10 were absent, and which of those included in paragraph 11 were present. His reasons for reaching a minimum term of 9 years were sufficiently explained.
41. In our judgment, this minimum term was neither wrong in principle nor manifestly excessive. This appeal is dismissed.

Daniel Roy Palmer

42. Palmer was born in March 1984.
43. On 15th September 2004, in the Crown Court at Snaresbrook before HHJ Radford and a jury he was convicted of the murder of Quadir Ahmed on 31st October 2003. On 17th September he was sentenced to detention for life. The specified minimum term under s 269 of the 2003 Act was 12 years. Allowance was then made for the 321 days Palmer had been in custody.
44. Quadir Ahmed was a 59 year old man, 5ft 6" tall, who was attacked by Palmer at about 10 o'clock in the evening of 31st October 2003.
45. Mr Ahmed was the manager and co-owner of an Indian restaurant in Field End Road. While he was at work on the evening of 31st October, at about 9.30 pm, he saw a group of white youths throwing eggs at the window of his premises. The youths were later to say that the appellant was not personally involved with them. Mr Ahmed alerted his brother, and another man, and the three of them left the restaurant together. They saw the youths walking down the road and followed them. They caught up with them, rightly complaining of what had been going on. Palmer was involved in this confrontation. It was suggested that he had responded to a call for assistance from the youths who had been throwing eggs. He started to shout and swear at Mr Ahmed and his companions. The group of white youths was heard to mimic their Asian accents. Eventually the incident calmed down, and Mr Ahmed and his friends started to walk, as the judge put it, "peaceably" back to the restaurant. The incident appeared to be over. That indeed should have been an end of it.
46. Instead Palmer jogged after Mr Ahmed, and made his way into the front garden of a house where a "For Sale" sign was lying on the ground. Then, with what must have been some real effort, he broke off a 3 metre long post from the sign, and thus equipped, ran up the road. Holding the post in both hands, he swung it from above shoulder height onto the head of Mr Ahmed. Mr Ahmed immediately fell to the ground, where he struck the back of his head on the pavement. Palmer ran off, discarding the weapon, and rejoined his friends, and was heard laughing about the blow he had inflicted.
47. An ambulance was summoned. Mr Ahmed was still breathing, but unconscious, with an injury to the back of the left side of his head, and a cut above his right eyebrow. He was taken to hospital, but never regained consciousness. He died on 21st November 2003.
48. The cause of death was an injury to the head which resulted in severe damage to the brain and internal bleeding. There were two areas of bruising, one to the back of the scalp and the other to the left of the forehead. It was not possible to reach any conclusion about which injury had resulted from the blow inflicted by the appellant, and which had resulted from the impact between the head and the pavement.
49. Palmer was arrested some two hours later. On his directions, police officers recovered the piece of wood. When interviewed, he declined to comment. He gave evidence at his trial. He sought to implicate another man in the fatal incident. He also suggested that he might have over-reacted in self-defence. In any event, he did not intend really serious bodily harm.
50. His evidence was rejected by the jury.
51. In his sentencing remarks, the judge described the essential features of the attack on Mr Ahmed. He imposed the mandatory sentence, custody for life. He then reflected on the appropriate minimum term, bearing in mind the then recent decision in this court in R v Sullivan [2004] EWCA Crim 1762, in the context of what was identified in that case as a "transitional" case.
52. The judge addressed the question whether the offence was racially aggravated within the meaning of s 28 of the Crime and Disorder Act 1988. It was agreed on both sides that he had to decide that issue on the evidence at trial and on the criminal standard of proof.
53. The judge accepted the evidence of the deceased's brother, and more important, of a wholly independent, and as he found, highly impressive, witness. Having reflected on the evidence, he considered first the confrontation between the justifiably aggrieved take away shop owners and the appellant and his young supporters which included the mimicking of their accent and the use of words such as "Asian bastard". He was not prepared to treat that expression on its own as racist abuse, because notwithstanding the language, the deceased's brother did not so regard it. However the mimicking of the accent formed an important part of the background which led the judge to the conclusion that the resumption of the confrontation by the appellant could not be explained on any other basis than that his violence at least in part racially motivated. He said:

"There is no other motivation for you committing this offence that sensibly can be considered other than that … which Mr Boon heard … namely that you decided to continue what you had started because … you made clear by your conduct in mimicking the Asian voices that were trying to explain to you why it is that they had come to where they had because of the throwing of the eggs at the premises …. This offence was racially aggravated in the sense that at least it was partially so motivated …"

54. In view of his conclusion about racial motivation, and on the basis of the contemporary guidance, he took 15 years as the appropriate starting point.
55. It was agreed between the prosecution and the defence that the appellant did not intend to kill Mr Ahmed. However the judge did not accept the submission that the case came close to the borderline between murder and manslaughter. He explained that this was not a single drunken punch, thrown after a fall out between young men, but the deliberate use of the weapon with which the appellant had armed himself, swung from shoulder height towards the front of the victim's head. After pole axing this innocent man, the appellant responded with amusement rather than concern for any possible consequence to Mr Ahmed, and a degree of pride that he had, as he confidently claimed to his friends, broken the man's nose. The judge added that his observation of the appellant during the course of the trial led him to reject the submission that the appellant was genuinely remorseful.
56. The judge accepted that the evidence established an intent to cause grievous bodily harm rather than to kill: that there was no long period of premeditation, and in a sense that the incident was spontaneous. He took account of Palmer's age, 19 when the offence was committed, but noted that he had already had experience of the criminal courts, and was subject to supervision in respect of community rehabilitation orders when the murder was committed. So although Palmer's age was taken into account it was not, in the judge's view, "as great a factor as might otherwise be the case". He then reflected on all the matters before making a judgment that the appropriate minimum term should be 12 years. Thereafter allowance was made for 321 days Palmer had been remanded in custody.
57. It was suggested on behalf of Palmer that this case should have been treated as a case on the borderline between manslaughter and murder, but one which in the light of the jury's verdict, fell to be treated as murder. No intent to kill the victim was alleged, and there was no previous history of conflict, and the attack on the deceased did not involve the use of a gun or a knife. In our judgment the trial judge had all these factors plainly in mind, and not least because the appellant deliberately armed himself with and used a weapon on the deceased's head, the submission that this was properly to be treated as a borderline case was rightly rejected.
58. A more specific attack was directed at his finding that there was at least in part a racial motivation behind the attack on the deceased. In our judgment, that was a finding of fact which the trial judge was entitled to make on the evidence, particularly at the end of the trial over which he had presided. No basis for interference with it has been shown. It was, and remains, a serious aggravating factor. In all the circumstances the minimum term fixed by the trial judge fell within the appropriate range for the offence. This appeal is dismissed.

Shantelle Jamine Campbell

59. Shantelle Jamine Campbell was born in December 1985.
60. On 10th September 2004 in the Crown Court at Warwick before HHJ Chapman and a jury, she was convicted of the murder of Chantelle Lynch on 17th February 2004. She was sentenced to custody for life. The prescribed minimum term for the purposes of s 269 of the 2003 Act was 12 years. By an oversight, no credit was given for the period spent on remand, 207 days.
61. When the judge came to sentence the appellant, he opened his sentencing remarks by observing that the case was "plainly, from everyone's point of view, a very sad case", and indeed went on to record that he could not remember "hearing of somebody who was having as wretched a life as you have so far", adding that none of it was the appellant's fault. That formed the depressing background to this crime.
62. On 17th February 2004 the appellant was 18 years 2 months old. The victim was 16 years old, a close friend of the appellant, who had had no contact with any members of her family since the age of 15. The two young women saw each other on an almost daily basis. Their relationship was profound, and volatile. There were frequent arguments between them, often fuelled by alcohol, and often ending in violent confrontations, in which they sometimes brandished knives at each other.
63. On 17th February 2004, shortly after they woke up, they began to drink cider and continued to drink it throughout the afternoon. Another girl, aged 14, was with them. In the evening Chantelle Lynch went to a shop to buy some more cider, but on her return an argument erupted between the two women. The appellant became angry and asked her to leave the flat. She refused. A fight developed. The appellant punched and kicked Chantelle Lynch, who would not go. The appellant then went into the kitchen, and seized a large kitchen knife. She threatened Chantelle Lynch with it, but she still refused to leave the flat. The appellant took hold of the knife by the blade, and struck the victim on the head with its handle.
64. Chantelle Lynch then left, followed downstairs by the 14 year old girl, who comforted her and then returned back to the flat. The appellant was seen looking out of the front and rear doors of the block of flats, and a few minutes later arguing with Chantelle Lynch who then ran off. The appellant set off in a determined pursuit, carrying what appeared to be two knives. CCTV cameras showed that from the time when the appellant was first seen outside the front door to her flat, to the last time she was seen with a knife before the stabbing took place, something like 15 minutes had passed. The fatal moment was not captured by CCTV cameras. The appellant stabbed Chantelle Lynch in the chest. After stabbing her, the appellant returned to her flat, and with the 14 year old girl sought to give assistance to Chantelle Lynch. The appellant ran to the concierge's office, asking for an ambulance, and when the emergency services arrived, she was found to be hysterical, admitting to police officers that she had indeed stabbed Chantelle Lynch.
65. Chantelle Lynch sustained a number of defence injuries to her thigh and wrist, and a number of small wounds to her head. The fatal wound was to the right side of her chest, penetrating her lung.
66. The appellant was arrested. When interviewed she admitted arguing with the deceased, and threatening her with a knife. She said that as the deceased left the flat, she said something which made her angry. She explained the fatal moments. She had pushed the deceased over, and while the deceased was trying to get up pushed her again while still holding the knife in her hands. The knife had penetrated the victim's chest. She had pulled the knife out, and noticed the blood coming from the wound, and after returning the knife to her flat, she went back to assist the victim.
67. Her account in her evidence during the trial was inconsistent with the evidence of eye witnesses and the CCTV cameras, and in effect, sought to minimise the violence of her actions. She accepted that she had stabbed her friend. The jury was invited to consider diminished responsibility. This defence was not established.
68. The appellant's history showed a number of previous court appearances, including an assault occasioning actual bodily harm, and threatening words or behaviour. She was made subject to combination orders, plainly intended to assist her. The medical evidence revealed a life history which fully justified Judge Chapman's comment on the wretchedness of the appellant's life. Although the psychiatric experts were unable to agree whether the appellant suffered from a personality disorder, there was no doubting her chaotic and disruptive upbringing. She had been severely sexually abused as a child, and as young woman. She started experimentation with alcohol and drugs to cope with her sense of shame. She was very worried for her mother, who she believed had suffered serious injuries at the hands of her partner and engineered exclusion from school. She met the deceased when she was 15 and the deceased was 13. A sexual relationship developed. Although the sexual relationship came to an end, the two young women were heavily dependent on each other emotionally. From time to time, the appellant overdosed, and in December 2002, after a history of deliberate self-harm, she was assessed by a psychiatric expert. She then received counselling sessions and psychiatric treatment. In short, her account of the misery of her childhood appears to be reasonably supported. As already recorded, she had no contact with her home from the age of 15 years, and the deceased represented one of the only sources of affection known to her.
69. Judge Chapman passed the appropriate mandatory sentence, and then examined the minimum term. In view of the appellant's age, he took the starting point at 15 years, and made allowance for her youth. The essential features in mitigation were that the appellant did not intend to kill: that the attack was not planned: that it happened because she was drunk, and the heavy drinking stemmed from a wish to shut out some very unpleasant memories. Judge Chapman noted that the appellant was still only 18 years old. Accordingly he reduced the minimum term from the starting point to 12 years.
70. It was submitted that this crime lacked any of the aggravating features specified in paragraph 10 of Schedule 21. The appellant never disputed her responsibility for the victim's death, and indeed once she had inflicted the fatal injury, did what she could to assist the victim. Her grief was genuine.
71. The submission for the Crown was that the appellant had persistently minimised her level of responsibility. There was a degree of determination about the pursuit which resulted in the deceased's death. These features of the case were properly identified to us.
72. The argument which most troubled us arose from the fact that this offender was only just 18 years old at the time of the killing, and an eighteen year old who had undergone an awful and disruptive upbringing, who in the end had killed one of the very few people in her life who had shown her warmth and affection. Both of them, and for the same reasons, were extremely immature. Judge Chapman had the appellant's wretched start, and her age, just 18 years and 2 months at the time, and the identity of her victim, and her importance to the appellant firmly in mind. He took a 15 year starting point, and discounted from it. As we have explained, if the offence had taken place three months earlier than it did, the legislative framework itself would have provided for a starting point of 12 rather than 15 years.
73. We are persuaded that there should have been a significantly greater discount from the 15 year starting point. In our judgment the 12 year minimum term did not sufficiently reflect the youth of the appellant, and the emotional immaturity for which she was not responsible. After making allowance for the remaining matters of mitigation and aggravation, the appropriate minimum term was 9 years. It will be reduced accordingly. In any event the period of 207 days spent on remand should be credited against that sentence.
74. To that extent this appeal is allowed.