England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Thursday, 24th April 2008

1. LORD JUSTICE HOOPER: On 4th December 2007, at the Crown Court at Nottingham, the appellant, as he now is, was convicted of one count of murder. It was for him a retrial. The first trial had taken place in September 2007. At the conclusion of that trial the jury could not agree on a verdict. After a ten day adjournment to obtain a report, the appellant was sentenced to detention at Her Majesty's pleasure with a minimum term of 14 years less 224 days spent on remand.
2. At the time of the offence the appellant was aged 16 years and nine months, having been born on 25th July 1990.
3. He was cycling on the evening of 1st May on the pavement of Upper Parliament Street in Nottingham city centre. He was with two friends. Something then happened at a bus stop as the appellant cycled by involving the deceased, Timothy Smith. The appellant, rather than simply overlooking whatever may have happened, went back to the bus stop and said to the deceased, "What did you do that for?" The appellant then gave a half-hearted slap to Mr Smith. Mr Smith was aged 40 at the time. There was a struggle which lasted certainly less than a minute and did not result in any injuries to either the appellant or the deceased. But the appellant then produced a 7 centimetre kitchen knife and stabbed the deceased in the right chest leading to his death.
4. The appellant ran away, but the next day, having read what had happened, went to the police and admitted that he was the person who had stabbed the deceased man. He identified the place where the knife was to be found and the police found it there. At one of the first hearings the appellant pleaded guilty to manslaughter, a plea which the prosecution did not accept as dispositive of the case.
5. We have had the benefit of what is called a victim impact statement prepared by the deceased's mother. Mrs June Smith. The statement sets out in the most convincing manner the appalling effect this offence has had on her and also upon the deceased's brother. As she says in that powerful statement, "Every day I wake up to face yet another day of misery."
6. In his sentencing remarks the judge said the following:

"Rickell Patterson, please stand up. You have been found guilty by the jury of the murder of Timothy Smith. You stabbed him to death with a knife which you had with you when cycling along a pavement in the very centre of Nottingham on 1st May of this year. It was 6.30 p.m., it was daylight and Timothy Smith was just one of many people waiting for the bus home after work. As you cycled through the bus queue he stepped back from the electronic bus timetable and got in your way, not realising that you were there. Nothing he did justified any action from you, let alone his death, but, notwithstanding that you had chosen to cycle along a crowded pavement, you reacted to his blameless act by remonstrating with him and slapping his face. A scuffle ensued. When he sought to protect himself from you, you took out the knife in your pocket, a kitchen knife with a 7.5 centimetre blade, and without hesitation stabbed him once with it in his right chest, causing his death.

This was a senseless and unprovoked attack on an innocent and unsuspecting member of the public. There is only one sentence which the law allows me to pass and that is detention at Her Majesty's pleasure, because you were under 18 when the offence was committed.

I must, however, determine the minimum term to be served by you before you can be considered for release by the Parole Board. It does not mean that you will be released after that period. It means that that is the minimum period which you must serve before the Parole Board may consider your release.

In assessing the seriousness of your offence, I must have regard to Schedule 21 to the Criminal Justice Act 2003. Since you were under 18 when the offence was committed, the starting point for assessing the minimum term is 12 years. I consider that your offence was seriously aggravated by the fact that without lawful excuse you carried with you into the centre of Nottingham a dangerous knife. As has been said before in other cases, the consequence of carrying a knife is that it is available for use and the fact that it is being carried is evidence that the carrier may be prepared to use it. Your actions show that you were prepared to use it.

In assessing the extent to which this factor aggravates your offence, it is appropriate and necessary to bear in mind that there is considerable public concern at the carrying of knives in public places without lawful excuse. Regard to such concern is consistent with and supports the aim of preventing offending by children and young persons.

I consider that there were some mitigating factors. Firstly, your intention was probably not to kill but only to cause really serious harm. However, it is a likely or possible consequence of stabbing a person with a knife that the person may die, even if that consequence is not intended. It is an extremely dangerous action. In those circumstances, the weight that can be given to this factor is at the lowest end of the scale.

Secondly, you acknowledged your role in Mr Smith's death the next day and handed yourself in to the police. You showed the police where the knife was. Whilst some weight can properly be given to this factor and to your willingness to plead guilty to manslaughter, the appropriate reduction must be very much less than the one-sixth reduction which is appropriate where there is a plea of guilty to murder.

Thirdly, although the fact that your age at the time of the offence was under 18 has been allowed for in the choice of 12 years as the starting point, you were still only 16 years and nine months at the time of the offence and therefore significantly below 18. I consider it proper to take that into account as a further mitigating factor. However, since there is no doubt that you realised it was wrong to carry a knife because of the very serious harm use of it can cause, there is a limit to the effect your age had on your culpability and therefore on the weight which can be given to this factor.

It has been submitted on your behalf that there are two further mitigating factors: firstly, lack of premeditation. I accept that you did not go out with the intention to confront a person with the knife you carried with you, but, as I have indicated, it is an aggravating feature of your offence that you carried a knife with you into a public place and were prepared to use it.

It is also said that you acted to some extent in self-defence. I do not consider that that is a significant factor in this case. It was you who went up to Mr Smith and confronted him.

The last mitigating factor is that you have no previous convictions. Indeed, as is apparent from the documents placed before me, those who know you have spoken very highly of you and it seems that the events of 1st May of this year were, as the author of the report on you said, inconsistent with the experience that various different people in the community have of you. Your progress whilst on remand does appear to support the descriptions of you contained in those references. But with an offence so serious as that which you committed, your previous convictions and your previous character can have but a small effect on the length of the sentence.

Counsel urges me not to make a sentence of such length that it is crushing. However, the seriousness of your offence and the guidance which the courts must follow inevitably leads to a long minimum period. Having taken into account the aggravating and mitigating factor to which I have referred and borne in mind the matters pressed on your behalf by counsel, I have determined that the minimum term which you must serve to reflect the seriousness of your offence is 14 years.

There will be deducted from that period the time which you have spent in custody; that is 224 days. If and when you are released following a determination by the Parole Board, you will remain on licence for the rest of your life, which means that you can be recalled to prison at any time."

7. The judge identified correctly that under Schedule 21 of the Criminal Justice Act 2003, having regard to the appellant's age, the starting point after a trial was a minimum term of 12 years.
8. He accepted a number of mitigating factors. Looking at paragraph 11 of Schedule 21, the first mitigating factor is that the appellant intended only to cause serious bodily harm. The prosecution invited the judge to sentence the appellant on that basis, and, as we have seen in the sentencing remarks, he did so. The judge, however, decided that the weight to be given was at the lower end of the scale, because, he said, it was a likely or possible consequence of stabbing a person with a knife that the person may die.
9. It may be, we know not, that the judge in saying that was relying upon a passage in the case of Peters [2005] 2 Cr App R(S) 101 at 634. However, in paragraph 14 in that case Judge LJ was giving an example whereby this mitigating factor may not carry much weight. His example was where death, even if unintended, is a possible or likely consequence of the offender's premeditated conduct. He then went on to use as an example an abduction and torture case.
10. In our view, the judge ought to have given this mitigating factor more weight than he appears to have done.
11. The second factor to which paragraph 11 refers is lack of premeditation. Clearly in this case there was no premeditation in the sense that those words are used in the statute.
12. It is accepted, and in our view rightly accepted, that neither subparagraphs (d) or (e) can be prayed in aid, i.e, some measure of qualification or some measure of self-defence. The judge rejected self-defence as not being appropriate during the course of his sentencing remarks. We agree with that.
13. The final subparagraph in paragraph 11 refers to the age of the offender. That, of course, is a very important factor. We remind ourselves that we are dealing with someone who was only 16 years old at the time of this offence.
14. To those mitigating factors it can be added, in our view, the remorse identified, the remorse that was shown when the appellant handed himself in and admitted the stabbing. For a young man to go to a police station and admit that he had stabbed is an important reflection on his behaviour and, of course, it is important from the point of view of the deceased's family. The fact that the killer is identified so quickly is something which will, at least in some small measure, ease the pain felt by the family.
15. We are invited to take into account, as the judge took into account, the positive good character of the appellant. It is unusual in cases like this to have reference letters of the kind with which the trial judge and this court have been supplied. A series of letters not from members of the family but from independent persons involved with youth work testify to his positive good character. He had no previous convictions or cautions. One of the writers describes him as "a calm, quiet and shy individual who has steered clear from the more boisterous crowd that populates the area. He has shown a lot of potential to go a long way in life and has been employed by the centre for the last four months." Another person described him as "responsible, punctual, motivated and well mannered, and very enthusiastic to learn." Another described him as polite and well mannered. It seems clear that there has been in his history no sign that he was capable of the terrible violence which he inflicted that day. Positive good character for a 16 year old is of considerable importance.
16. Likewise, the Crown Court report prepared for the sentencing hearing tells us something about this young man, which, again, one might not have expected. During a riot at the young offender institution where he was detained he alerted the staff to what was happening and took action to help ensure the staff's safety. For a young man in a custodial environment to come to the protection of the staff says a good deal about him. The report also shows that he had to move establishments six times in the seven months before he was sentenced.
17. The appellant had received, so the report shows, "excellent reports from each establishment", "indeed, he has not faced a single disciplinary hearing during his time on remand and this is extremely rare for young people with whom the YOT works in custody", "his prison file repeatedly records comments from staff on the wing and education noting [the appellant] is a polite young man with 'an excellent attitude and behaviour'." He is determined to make the best use of his opportunities. What that report shows is that the opinions expressed by those professionals with whom he had been in contact before this offence are reflected in the opinion of those who are looking after him in custody. Those then are the mitigating features.
18. The aggravating feature is one, and one only, but a very serious one; it is the carrying of a knife in a public place. As the judge said in his sentencing remarks, there is considerable and justified public concern at the carrying of knives in public places without lawful excuse. Over and again these courts see the consequences of young people carrying knives and then in a state of panic and confusion using it with either fatal or very serious consequences.
19. What we have to do is to try and balance the mitigating features and that very serious aggravating feature to decide what is the appropriate minimum term. Of course, the appellant is subject to detention for life. All that this court is doing is reviewing whether the judge chose the right term at which point he will become eligible for parole. Of course, that does not mean that he will get parole, and, even if he were to get parole, he would be eligible for recall on licence for the rest of his life. Our task, then, is simply to decide at what point might this appellant be able, should he wish to do so, to seek parole. Whether he obtains parole is, of course, nothing to do with this court and is decided by the Parole Board.
20. Having considered the case very carefully, we have reached the conclusion that the trial judge was wrong to choose a period of 14 years and that he should have chosen a period of 12 years. To that extent this appeal is allowed. The term will be less the 224 days spent on remand.
21. THE COURT ASSOCIATE: The reporting restrictions were lifted in the lower court in this case, my Lord.
22. LORD JUSTICE HOOPER: There are no reporting restrictions. I do not know why it has been listed under an initial.
23. MR EISSA: They were certainly not in place at the end of the trial. It was reported immediately in the local media.
24. LORD JUSTICE HOOPER: There are no reporting restrictions in this case.