England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		25th July 2006

1. LORD JUSTICE GAGE: On 19th August 2004, at Chester Crown Court, John Godfrey Wilson and James Stuart Raven were convicted of one count of murder and two counts of conspiracy to cause grievous bodily harm. They were sentenced as follows. In respect of count 1, each was sentenced to life imprisonment with a minimum term of 24 years, less the time spent in custody, and on counts 2 and 3, 14 years' imprisonment on each concurrent and concurrent with the life sentence. The jury at that trial failed to reach verdicts in the case of Otis Matthews. He was re-tried, and on 15th December 2004, having been convicted of the same offences, he was sentenced by David Clarke J, who had not heard the original trial, to life imprisonment with a minimum term of 24 years and 14 years' imprisonment concurrent for each of the counts 2 and 3.
2. There were other co-defendants at the first trial. One, Ashley Guishard, was acquitted. Another, David Moran, pleaded guilty to doing acts tending and intended to pervert the course of justice. He was sentenced to 21 months' imprisonment. Christopher More, a co-accused, fled to Spain a few days after the murder. His father pleaded guilty to assisting an offender and was sentenced to nine months' imprisonment and ordered to pay a substantial sum by way of costs.
3. The facts are as follows. In 2002 Brian Waters, a man aged 44, and his wife, Julie, rented a disused dairy farm on the A556 Chester Road near Knutsford called Burnt House Farm. Waters and his life-long friend, Mujahid, ran the premises as a cannabis farm in which they were equal partners. Waters' son, Gavin, and daughter, Natalie, and Mujahid's step-son, Suleman, helped out with the care and harvesting of the cannabis plants.
4. Before setting up the cannabis farm, Water's main source of income was from cannabis dealing. He was introduced to a Manchester drug dealer, Wilson, and travelled extensively to Holland to broker drug deals on his behalf. Waters became indebted to Wilson when, in 1999, he was stopped by customs officers at Dover and £22,000 was seized and subsequently forfeited. It was believed to belong to Wilson. Waters continued to deal in cannabis and tried to discharge the debt to Wilson. He kept the existence of Burnt House Farm a secret from Wilson for fear that Wilson would take over the operation, which yielded approximately £3,000 every four weeks.
5. Shortly after 4 pm on 19th June 2003, police attended Burnt House Farm following an anonymous 999 call. As they pulled into the drive a number of men fled from the barn, where officers found Gavin and Natalie Waters and Suleman Razak bound and gagged. Suleman had sustained grave injuries and Gavin was suffering from bruising and swelling to the face. Brian Waters was found dead in the adjoining milk parlour. He had received multiple and extensive injuries after being tortured for a number of hours before his death. Mrs Waters was found unharmed lying in the back of her car, covered over with a duvet.
6. It was the prosecution case that Wilson had discovered the existence of Burnt House Farm and ordered a gang of men to carry out the attack and find out the whereabouts of cash on the premises while he remained in contact by telephone. It was alleged that Raven and Matthews were part of the gang who had jointly inflicted the fatal injuries on Waters (counts 1 and 2) and had severely injured Suleman Razak (count 3). It was submitted by the prosecution that the gang had included Christopher More, who fled to Spain shortly afterwards. He remains at large. In addition, Ashley Guishard, who was acquitted, and other unidentified members were also part of the conspiracy. It was further alleged that during the incident Matthews and another member, thought to be More, had gone to the Waters' family home and searched the house for money and valuables before forcing Mrs Waters into her car and returning her to the farm where she was later found by the police.
7. A horsebox was used by the gang to load cannabis plants and drug paraphernalia from Burnt House Farm on the morning of the attack before the arrival of the victims. It was later discovered in a pub car park close to the home of More.
8. Moran was originally charged with murder, but became a prosecution witness after agreeing to plead guilty to perverting the course of justice over the disposal of the two mobile phones. He worked for Wilson and said that Wilson had instructed that the farm should be stripped of all cannabis equipment and that the men should lie in wait for Waters and anyone with him and use such violence as was needed to obtain money. Wilson had instructed him, that is Moran, to take and collect Raven from the farm and later had instructed him to call the police and report an assault at the farm.
9. Raven, in evidence, admitted that he was present at the scene after More had persuaded him to drive the horsebox. He had not expected any violence and had used none himself. He was deeply shocked by what took place but was in no position to stop it. He named Matthews as the main torturer and perpetrator of the violence.
10. In his defence, Matthews gave evidence, admitting that he and More had obtained the horsebox and that he had been part of the group who had gone to the farm in the early morning of the murder and stolen the cannabis and equipment which was loaded into the box. He left at about 8.30 am, before any of the victims arrived, and did not return. He took no part in any of the violence or events which took place thereafter. On the date of the murder he had distinctive bleached blond hair which was not described by any of the witnesses, who claimed to have seen a black/mixed race man as part of the gang.
11. In evidence, Suleman Razak described what happened when he arrived at the farm at about 11.50 am. He was, he thought, the first to be there. He expected to find the house door locked. He put a key into the lock and, as he opened the door, men in balaclavas and gloves ran towards him. He said someone grabbed him and punched him as he fell to the floor. He was repeatedly punched. He was dragged back into the farmhouse. The house was full of plants and it was all a mess with water dripping from the ceiling. Leaves were pushed into his mouth and he was dragged to the cowshed. He was kicked and punched and his hands were tied by the wrists with duct tape. His ankles were tied with blue rope. He saw six men and recalled counting that number at one stage. He said that he was hung upside down by the legs and thought he was going to die. His head was immersed in a barrel of water and he heard a threat to drown him. He recalled shaking and thought that he had been subjected to some kind of electric shock. It seemed to go on for quite a while. He remembered being on the floor and was still tied up when a burning liquid was poured onto his back. Someone remarked: "This stuff's wicked". He was tied to a chair and had a pillow case still on his head which had been on for some time at that stage. He heard a spraying sound and also the sound of flames. He then felt the heat of flames and felt pinpricks in his back and shoulders. They were later found to be staples from a staple gun. He was unable to breathe properly.
12. The next thing he saw was Waters, the deceased man, being brought into the barn, bleeding and covered in dirt, still alive. The men hit him and tied him up from the ankles and hung him over a beam. Two or three hit him with a garden cane and something like a plank of wood. Suleman saw a knife with a curved blade and a small handgun which was passed around. Waters was then put into a chair next to him. His own telephone ran and one of the man brought it over and he spoke to his mother. He saw a plastic bag being lit and being dripped over Waters as they asked him a number of times where the money was kept in the house. Natalie and Gavin then arrived and the men rushed out. They were brought into the barn. Gavin was tied by his neck and pulled over the beam. His hands were also tied. Natalie was put in the corner near her father and someone made a remark about all girls having loud mouths.
13. Gavin Waters said that when he and his sister arrived at the barn, it was strange to see the door was open and water falling from the ceiling. A number of men, he thought six, ran towards him, all in dark clothing and balaclavas. He never saw their faces. One had a gun and shouted "Get the fuck down". He was then covered in kicks and punches and thought Natalie was also hit. He was taken into the barn and saw his father tied to a chair with blood all over his face and shirt. Suleman was also tied to a chair, with a quilt around his chest and his face all puffed up. A rope was round his neck.
14. Natalie Waters said that when she saw the men, one looked Asian and had dark brown skin around the eyeholes of the balaclava, one had a gun and another had a bat or a bar. She also described a combat knife and thumbscrews which had been brought in from Gavin's car.
15. There was post mortem evidence from a pathologist, Dr Alison Armour. She said that in her opinion the injuries sustained by the deceased man showed that he had been tortured before his death. He had suffered extensive injuries, which included bruising, abrasions, lacerations, multiple rib fractures to both sides with many fractured in more than one place. He also had a fractured nose and sternum, bleeding on the surface of the brain, bruising to the heart sac and injuries caused by strangulation and compression of the neck, including sharp incised injuries to the throat. A caustic substance had been dripped or poured onto his back causing burns. Staples had been inserted through his trunk, left arm and head. He had sustained a penetrating laceration injury to the anus which had been caused by a blunt object, such as an iron bar, being rammed up or thrust deeply into him with considerable force. She concluded that Waters had suffered persistent violence over a substantial period of time. It was the combination of the injuries which had caused his death. Further wounds indicated that he had been tied under the armpits and the legs. Both hands were very badly battered, which could have been sustained in defensive injuries as he attempted to fend off blows. Considerable force must have been used to cause the multiple fractures to the ribs and sternum.
16. The judge, in his sentencing remarks, described these matters in this way:

"The crimes were exceptionally sadistic, both the one resulting in death and the one that did not. The violence used was both gratuitous and extreme and was characterised by the humiliation and degradation of Brian Waters before he died. Before that he had undergone extremes of physical violence which Doctor Armour, the Home Office Pathologist, did not hesitate to categorise as torture. He was strung up upside down from a beam, repeatedly and savagely punched and beaten with canes and/or bars; staples were driven into his body and head; an iron bar was thrust not less than 15 centimetres into his rectum causing terrible injury there; he ended up bound to a chair, his ordeal having lasted not less than and probably more than 3 hours, though most if not all of the physical injuries I am satisfied were inflicted in the first hour.

His ordeal culminated in his being forced to witness the physical abuse of his daughter and son, both of whom were trussed up within his line of vision as was the man who had been tortured before him. All this for monetary gain. He died with no fewer than 123 external injuries, abrasions, bruises many of them massive and lacerations as well as 24 fractures to his ribs, a collapsed lung and bruising and fracture of the thyroid cartilage, consistent with strangulation but more likely to have been caused by a blow to the throat. In addition, there was evidence of burning injury to his back, probably caused by use of a caustic substance."

17. Suleman Razak suffered numerous injuries, including staple injuries to the head, a fractured nose and fractures to the right arm. Dr Armour said that in her opinion there was a striking similarity between his injuries and those sustained by the deceased. The judge described what happened to him in this way:

"This in itself was a terrible crime. A young man, he had arrived at the farm to do his day's work. It matters not one whit that that work was unlawful. He and the others may have abandoned the law but the law does not abandon them. He like the other victims was a vulnerable victim at least in the sense that he never stood a chance. Savagely beaten and kicked by the pack, he too was strung upside down from a beam and then in that position immersed in a barrel of water. It is difficult to imagine a more terrifying experience. There were numerous injuries to his head, trunk and arms, including lacerations, abrasions and bruising and puncture wounds to his neck and left arm. On him too the staple gun had been put to use. There was also a deep full thickness burn to the back caused by some caustic substance as well as fractures to the nose and metacarpals. So he too had been the victim of merciless torture, ending up bound and gagged to a chair, his sufferings lasting over 4 hours and barely if at all mitigated by your, John Raven's, occasional offer of a cigarette of a swig from a bottle and for all of that each of you, whatever his precise role, was jointly responsible because obviously if Brian Waters was to be tortured anybody arriving before him would have to be neutralised and soaked for whatever information he could give about who was to come next."

18. So far as these applicants are concerned individually, Wilson is a man of hitherto good character. He is now aged 56. Raven is now aged 46, he has one or two minor convictions. The judge, in sentencing him, treated him as of good character. Matthews, now aged 29, has a number of convictions, first being convicted at the age of 15 of robbery and assault. However, those convictions pale into insignificance in the context of these crimes.
19. The two judges, Poole J and David Clarke J, sentenced all three applicants under the transitional provisions provided by Schedule 22 of the Criminal Justice Act 2003. Each made reference to the correct starting point of 16 years. In the case of Matthews, David Clarke J followed the reasoning of Poole J when dealing with Wilson and Raven. (Hereafter, where we refer to "the judge" it will be a reference to Poole J, unless the contrary is stated).
20. There is no criticism of either judges' approach to his sentencing of these three applicants. It is conceded by all counsel that 16 years was the correct starting point. It is further conceded that for this offence a substantial uplift above that starting point was to be expected. The following submissions are common to all three applicants.
21. First, it is submitted that the uplift of eight years from 16 years was too great. Specifically, counsel for Wilson and Matthews have submitted that, in the case of each of their clients, 20 years would have been sufficient. Secondly, it is common to all submissions that the judge failed to give proper weight to his finding that there was no intention on any of these applicants to kill. In the case of Wilson and Raven, their age means that they will be old men, perhaps very old men, at the date when they are eligible for release: in Wilson's case, 78; in Raven's case, 67. It is submitted that that is another reason why the assessment of 24 years was too long.
22. Individually, the following submissions are made on behalf of each applicant. First, for Wilson, Mr Reid QC submitted that he is a man of good character. Further, he relies on the fact that it was him, through the medium of Moran, who alerted the police to what was happening at Burnt House Farm. Thereby he prevented further injury to the surviving witnesses and, it is submitted, made the discovery of those involved in these offences more likely. The judge, in his sentencing remarks, dealt with that matter and accorded credit for it. However, against that he balanced the fact that it was Wilson who was the driving force behind these offences. Next, Mr Reid, on behalf of Wilson, submits that it is important for the court to remember that these applicants fell to be sentenced under the transitional provisions before Schedule 21 of the Criminal Justice Act 2003 came into force. He submits that the court may now be conditioned by the starting points now in force and ought to be careful to observe that the starting points for the transitional provisions were lower.
23. So far as Raven is concerned, he will be 67 when eligible for application for parole. It is submitted on his behalf that the judge rightly treated him as a man of effectively good character. On his behalf, Mr Mills submits that he was far less responsible for the physical infliction of the injuries than those others who are present at the scene. Thirdly, his evidence at trial was that Matthews and More were the main perpetrators of the violence. The result is that his safety in custody will be at risk for some time to come. Reliance is placed, not to any great extent, on the fact that he was responsible for some small acts of compassion so far as the victims are concerned. Mr Mills submits that, faced with a sentence of this length, this court ought to make some reduction to give his client a glimpse of light at the end of the tunnel.
24. So far as Mr Matthews is concerned, Mr Roach, on his behalf, makes a number of submissions. Firstly, he submits that Wilson was the ringleader, and instigator of this crime. It is submitted that Matthews played a subordinate role and that therefore the sentence in respect of him should be much less. Furthermore, it is submitted on his behalf that, at the scene in the barn, Raven was said by Natalie Waters to be the ringleader. The prosecution did not place the applicant at the forefront of the violence in the barn. Next, it is submitted that, although there was evidence that Matthews was involved in the planning of the attack, he bought the horsebox and was involved in reconnoitring the scene, the prosecution were unable to establish his role in the violence. Finally, reliance is placed upon the fact that he is the youngest of these three applicants.
25. All those submissions on behalf of each of three applicants are such that it is submitted that the assessment of the determinate period of 24 years is too long and ought to be reduced.
26. Poole J, in our judgment rightly, described the crimes committed by all three applicants as exceptionally sadistic. The attack on the deceased and his family was pre-planned, made for gain, extremely violent and prolonged. Poole J, who heard all the evidence in the first trial, which included Matthews, specifically referred to matters which might be thought, in the case of Wilson and Raven, to be distinguishing features, one between the other. However, he saw no reason to distinguish between them. We see no reason for saying that that conclusion was unjustified.
27. David Clarke J did not have the benefit of seeing Wilson or Raven give evidence. However, in his sentencing remarks he made it clear that he had considered whether or not to distinguish between Matthews and Raven and Matthews and Wilson. He decided that Raven and Matthews were acting together as a team. Again, we see no reason to differ from that conclusion.
28. The minimum term of 24 years undoubtedly represented a severe sentence for each one of these applicants, but the facts as we have related them speak for themselves. The offences were very grave and called for very substantial minimum terms. In the circumstances, in our judgment, they were not manifestly excessive and these applications must be refused.
29. MR MILLS: My Lord, may I raise the matter of representation orders in this case. These were applications for leave to appeal referred to the full court. The terms of the representation order are that if leave is granted for the presentation of the appeal the representation order would cover. I would respectfully ask the court to consider extending representation orders to the presentation of the applications themselves.
30. LORD JUSTICE GAGE: Yes.
31. Do you have a representation order or not, Mr Roach?
32. MR ROACH: My Lord, yes.
33. LORD JUSTICE GAGE: Yes.
34. These were, as we have described them, very long terms. We think that all of you ought to have representation orders.
35. MR MILLS: I am grateful.