England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		04/04/2007

Lord Justice Maurice Kay :

1. Joel Ison Taylor was born on 14 March 1988. Joshua Declan Thomas was born on 19 February 1990. On 10 April 2006 in the Crown Court at Swansea they were both convicted of murder. Thomas was also convicted of robbery. Taylor had pleaded guilty to robbery. On 16 June 2006, the trial judge, Roderick Evans J, sentenced them to be detained during Her Majesty's Pleasure. In the case of Taylor, he ordered a minimum term of 22 years. The minimum term in the case of Thomas was fixed at 18 years. No separate penalty was imposed for the robbery. They now appeal against the minimum terms. Their co-accused Andrew Paul Rafferty was found not guilty of murder but guilty of manslaughter. However, he has leave to appeal against that conviction. He pleaded guilty to the robbery.
2. The murder and the robbery which gave rise to it occurred in the early hours of 18 September 2005 when Taylor was aged 17½ and Thomas was just over 15½. Their victim, Ben Bellamy, was described by the judge as a decent, popular and academically able 17 year old who had a promising life ahead of him until he met the appellants on the promenade to the west of Swansea. The judge described the offence in these words:

"You then decided to rob Ben Bellamy of his phone, of a small amount of cash and his cash card. And in robbing him, you Taylor and you Thomas used on him a degree of gross violence which went far beyond the violence necessary to carry out the robbery … Ben Bellamy was prepared to give you what you wanted, he told you to take what you wanted, but that did not stop your desire for violence. After you two had given Ben Bellamy's card to Rafferty and he left to go to the cash point to try to get money, the violence continued. Although it was the print of your footwear, Thomas, which could be seen on Ben Bellamy's body, I have no doubt that you two are equally responsible for that violence, the punching, the kicking and the stamping. You beat Ben Bellamy until he could not walk or stand. Whether he was unconscious and, if he was, how deeply unconscious, we shall never know. But what is clear is that, while he remained clothed, you two dragged him along the beach because he was incapable of moving himself. There then followed the most worrying and distressing part of this incident. You stripped Ben Bellamy and, having done so, you continued to use violence on his naked body. The sole marks of your trainers, Thomas, were left on his body in places which would normally have been covered by clothes. Then, in an act of cold blood and calculated evil, of a kind which it is difficult to comprehend, you took Ben Bellamy when he was alive out into the sea to a depth of a little under a metre and you drowned him. That was not an act done in temper or panic. It was a determined, cold killing. And it had the advantage, I am sure you thought at least, that his body would be taken out to sea and, if ever found, his naked body and his clothes left on the beach might lead people to think that he had been drowned because he had gone skinny dipping."

3. On any basis, this was a murder of the utmost gravity. The judge, who has a unique knowledge of the locality, said that it had "profoundly affected this city and had touched the essence of the community of which [the deceased] and his family were a part". An observation to like effect was made by one of the reporting probation officers.
4. Taylor had previous convictions, the most recent of which was for unlawful wounding. On 11 November 2004 he was made the subject of an eight months Detention and Training Order for that. It involved the stabbing of a young man in the back. Taylor can only have been released from that sentence about four months before the murder. The records of the Youth Offending Team responsible for his supervision describe his attitude towards the wounding as contemptuous, arrogant and lacking in empathy or understanding. The pre-sentence report in the present case referred to a lack of victim empathy and any level of remorse.
5. Thomas had no previous convictions but on 4 July 2005 he had been cautioned for possessing an offensive weapon in a public place. Pre-sentence and psychiatric reports on him describe attention deficit hyperactivity disorder (ADHD) and a full scale IQ equivalent of approximately 87, giving him a mental age of about 13. He was "one to two years behind academically and in terms of social maturity". This did not impair his ability to know right from wrong but his failure to take his medication for his ADHD "would make it more likely that he would become influenced by others and act on the spur of the moment without thinking through things carefully or indeed at all".
6. The legal framework within which judges now fix minimum terms in relation to indeterminate sentences for murder is contained in Schedule 21 to the Criminal Justice Act 2003. There can be no doubt that Parliament intended it to have the effect of significantly increasing minimum terms, which prescribe the earliest date at which the person may be considered for parole. Whatever judges may think about this restriction of their discretion, it is our duty to give effect to it. The scheme of Schedule 21 is to prescribe "appropriate starting points" by reference to the age of the offender at the date of the offence. If he was under 18, the starting point is 12 years. The starting point for an 18 year old in relation to a murder arising out of a robbery is 30 years.
7. In calculating the minimum terms in this case, the judge referred to three aggravating features: (1) the murder was committed in furtherance of a robbery; (2) gross violence; and (3) the attempt to dispose of the body. He identified as mitigating factors: (1) age; and (2) "maturity or lack of it as described in the reports". He then took into consideration Taylor's previous conviction for wounding as an aggravating feature. Although the judge considered that there was no distinction to be drawn between Taylor and Thomas as regards their participation in the offence, the differential in the minimum terms reflected Taylor's greater age, maturity and relevant antecedent history.
8. The correct approach to Schedule 21 has been considered in a number of cases, with general guidance having been given in, particularly, Peters and others [2005] 2 Crim App (S) 101. As was made clear in that case, the starting points cannot be approached in a mechanistic way. Thus, if two offenders of equal culpability kill in the course of a robbery and one was aged 17¾ and the other 18¼, the statutory starting points would be 12 years and 30 years but significantly divergent minimum terms for the two offenders would be neither just nor rational. The question we have had to consider is the same as in any appeal against sentence, namely whether the sentence imposed was wrong in principle or manifestly excessive.
9. We deal first with Taylor. We have already alluded to the fact that he was only 6 months short of his eighteenth birthday and exposure to the 30 year starting point. We are entirely satisfied that the judge correctly identified the aggravating and mitigating factors. Miss Elwen Evans QC does not submit otherwise. The point she emphasises is age. The difficulty with that submission is that, whilst age is clearly a relevant factor (as the judge acknowledged), the proximity of Taylor to the 30 year starting point shows its limitations. We do not suggest that if he had been six months older his proper minimum term would have been close to 30 years. However, we do not think that it could have been significantly less than 24 years. In such circumstances, it cannot be said that 22 years for a person of 17½ can be said to be wrong in principle or manifestly excessive. We should add that in the course of Miss Evans' submissions there was a debate about whether certain material, for example Taylor's lamentable attitude to his previous offence and his lack of remorse, was relevant to an assessment of dangerousness rather than to the fixing of the minimum term. In our judgment the two are not mutually exclusive. We should also say something about lack of maturity in Taylor's case. The judge acknowledged it and we do not criticise him for so doing. However, the expression "lack of maturity" is not always used in the same sense. The basis for it in Taylor's case was a passage in the pre-sentence report to the effect that he is "an immature young man who had not wholly grasped the full magnitude of what is before the Court today". When used in that sense, immaturity does not denote a clinically diagnosable developmental deficit. Taylor is not unintelligent. At the time of the offence, he had recently enrolled at Swansea College to train in business studies with a view to an eventual apprenticeship in mechanics. We do not consider that immaturity could or should have had a sizeable impact on the fixing of his minimum term. As we do not find it to be wrong in principle or manifestly excessive in the context of the 2003 Act and other decisions of this Court, his appeal is dismissed.
10. We turn to Thomas. He has caused us greater anxiety because of his age and the fact that, in his case, there is evidence of immaturity in the stronger sense to which we have referred. We have very much in mind the assessments to which we have referred. We also remind ourselves that his position is not aggravated by his antecedent history. On the other hand, he was a full participant in a truly appalling murder. The question is whether his age, immaturity and lack of a significant antecedent history are sufficiently recognised in the four year differential in the minimum terms as between him and Taylor. After the most careful consideration, we believe that they are. We acknowledge that a minimum term of eighteen years is very long for a person of his age and circumstances. Indeed, if it had been any longer, we believe that it may well have been describable as manifestly excessive. It seems to us that the judge hit the top of the permissible bracket in Thomas' case but we think that that was probably his aim. In reaching this conclusion we have had regard to the authorities to which we were referred, especially Peters (above) and the recent decision of this court in Attorney General's Reference (H) [2007] EWCA Crim 53, where the minimum term in respect of a fifteen year old who had pleaded guilty to a dreadful murder was increased from 12 years to 15 years. The court indicated that it would have been 18 years but for the plea of guilty. The offender in that case was also of low/average intelligence, emotionally immature and vulnerable. Whilst the court found premeditation in that case, we do not consider that, taking into account all the factors in both cases, it can be said that the term of 18 years in Thomas' case is out of line with the minimum term as explained in H. Accordingly, his appeal is also dismissed.