England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		21 April 2008

Monday 21 April 2008

THE LORD CHIEF JUSTICE:

Introduction

1. This is an appeal against sentence brought with the leave of the single judge. On 14 November 2007, the appellant Gareth Davies was convicted at the Central Criminal Court before His Honour Judge Hawkins QC and a jury of the murder of Egeli Rasta (count 1) and of doing an act intended to pervert the course of justice (count 2). On 11 January 2008 he was sentenced to life imprisonment with a minimum term of 23 years on count 1 (less time spent on remand). A concurrent term of six years' imprisonment was imposed in respect of count 2. No appeal is brought in respect of this element of the sentence.
2. The horrifying facts of this offence can be shortly stated. Egeli Rasta had come from Estonia to work in England in December 2004. By July 2006 she was living in Mitcham and she regularly used Mitcham Common to exercise and to sunbathe.
3. The 4th July 2006 was a particularly warm day. In the afternoon of that day Miss Rasta's friends were unable to contact her by telephone and she then missed appointments on the following days. She was reported missing on 7 July 2006.
4. Cell phone records from her mobile telephone showed that it was being used. The police traced the telephone to the appellant and he was arrested on 13 July 2006. At his home in Mitcham police found a rucksack that contained damp clothing and a baseball cap stained with Miss Rasta's blood, as ascertained by DNA analysis. Next to the rucksack was a holdall which contained a knife. This too was stained with Miss Rasta's blood. The holdall also contained an orange vibrator, a second vibrator which was home-made from a hover part, blue industrial tissue and an opened packet of liquid Viagra.
5. On 16 July 2006 a walker on the common alerted police to a smell coming from a wooded area. The area was searched and Miss Rasta's naked, badly decomposed body was discovered in a shallow grave. It was not possible to determine the cause of death. A length of fishing line was present at the scene where her neck would have been. Blue tissue paper matching that in the appellant's holdall was also found in the copse. Miss Rasta's clothing has never been found.
6. The basis of the second count was the concealment by the appellant of Miss Rasta's body.
7. The crime of murder carries a mandatory life sentence. Section 296 of the Criminal Justice Act 2003 requires the court, unless it decides that the defendant must remain in prison for the rest of his life, to specify in such circumstances the minimum term that he must serve before being considered for release on licence. In fixing the minimum term the court is required to have regard to the seriousness of the offence. In so doing the court is further required by section 296(5) to have regard to the general principles set out in Schedule 21 to the Act.
8. Paragraph 5 of Schedule 21 requires that, in circumstances where the court considers that the seriousness of the offence or a combination of the offence and one or more offences associated with it is particularly high and the offender was aged 18 or over when he committed the offence, the appropriate starting point in determining the minimum term should be 30 years. Cases that will normally fall within this subparagraph are set out in paragraph 5(2) and include a murder involving sexual or sadistic conduct.
9. The only issue that there appears to have been before the judge in relation to the sentence was whether the evidence in the case led to the conclusion that the murder involved sexual conduct so that the starting point was 30 years. Apart from this, aggravating and mitigating factors were agreed between the prosecution and the defence.

The sentence

10. The appellant was 22 years old at the time of the offence. He had a number of previous convictions, but none for violence to the person. The judge had before him a number of expert reports concerning the appellant's mental state. These had concluded that the appellant had difficulties with his memory, was in the bottom 5 per cent of the population for intelligence and was suffering from a personality disorder.
11. The prosecution submitted to the judge that the circumstances of the crime committed on the common involving an attractive young victim who had been stripped naked, permitted the inference that the crime had had a sexual motivation and had involved sexual conduct. For the defence it was argued that such an inference could not safely be drawn as there were alternative explanations for the removal of the clothing, such as to destroy evidence or to enable the body to be more effectively concealed.
12. The relevant portion of the judge's sentencing remarks reads as follows:

"The Crown submit that the circumstances of this crime, committed as it was on the common, a young woman, attractive young woman, with the body found in the copse, stripped naked, allows me safely to draw the inference that it had a sexual motivation and involved sexual conduct. The defence say that in the circumstances of this case it is not safe for me to draw that inference. I have considered very carefully the position and I come to the conclusion that I am driven, in the circumstances of this case on the factors that I have set out, that it had sexual motivation and involved sexual conduct.

I cannot be sure in the circumstances of this case that you had an intent to kill when you committed the crime and that is submitted both by prosecution and defence. You are a young man -- it is submitted by both that that is a factor I should take into account in deciding the appropriate amount -- 22 at the time of the killing. It is agreed you have no previous convictions for violence to the person and I am bound to conclude in the circumstances that this may have occurred suddenly without premeditation.

As to your mental condition, I have been helped by a very detailed series of reports submitted by the defence. You are of low intelligence. You had a very unfortunate background. You suffer from personality disorder and depressive nature and I think in all the circumstances those are also factors that I should take into account in balancing the position.

As I said, the sentence upon you for the murder is a life sentence and I conclude that before you may apply to the Parole Board you must serve 23 years. I give full credit for the time that you have served -- and I am told you have served 542 days -- which will apply towards the sentence, and I will sentence you to six years concurrent for perverting the course of public justice in concealing the body."

13. The reports to which the judge referred include a psychiatric report from Dr Jan Falkowski, dated 7 December 2007, which is entirely in accord with the other reports. He summarised his opinion as follows:

"7. Mr Davies had a deprived and disrupted childhood. He began to abuse drugs at an early age. Mr Davies has difficulties in a number of areas of his interpersonal functioning. He also suffers from emotional instability. This has led him to harm himself at times. These are symptoms of a personality disorder. Mr Davies suffers from a personality disorder which has features of the most emotional instability, schizoid and borderline elements. Although personality disorders may improve to some extent with long- term psychotherapy, they are extremely difficult to treat. It is likely that Mr Davies will continue to experience depressive symptoms from time to time. It is important that he is monitored as he is likely to harm himself or attempt suicide when he is feeling depressed.

8. Mr Davies has a low IQ. It is important to emphasise however that several million people in the United Kingdom would have a similar or lower IQ. Mr Davies' IQ would limit his ability to achieve in some areas, but it would not affect his ability to function on a day-to-day basis. His memory difficulties would also not prevent him carrying out day-to-day activities."

The standard of proof

14. The difference between a 15 year starting point and a 30 year starting point when fixing a minimum term can have very great significance, as this case demonstrates. The question arises as to the standard of proof the court should apply when deciding whether aggravating features exist that lift the starting point from 15 years to 30 years. We asked counsel whether there was any authority which dealt with this question and they told us that they were aware of none. It seems to us that in principle the standard of proof should be the same as that to be applied by a jury when reaching their verdict. The distinction between the factors that call for a 30 year starting point and those that call for a 15 year starting point is no less significant than that which has to be considered by a jury when distinguishing between alternative offences such as, for instance, those under sections 18 and 20 of the Offences against the Person Act 1861. It would be anomalous if the same standard of proof did not apply in each case. Counsel for both the prosecution and the defence were agreed that this is the correct analysis of the position.
15. Was the evidence referred to by the judge such as enabled him to be sure that this was a murder which involved sexual conduct? For the appellant Mrs O'Neill submitted that the evidence did not permit such a conclusion to be reached. The only significant matter relied upon by the judge was the fact that the victim's body had been stripped of its clothing before it was buried. It is at least possible -- indeed Mr Denison for the prosecution said that it was likely -- that the victim would have removed some of her clothing on this day because she was known to sunbathe on the common, and it was a very warm day. Nonetheless, if that were the position, the remainder of her clothing had been removed from her by the appellant. But Mrs O'Neill submitted that it was not right to infer, let alone to be sure from this fact, that there had been the involvement of sexual conduct in this murder. The clothing might have been removed to prevent forensic links with the appellant or to make it easier to conceal the body, or to inhibit identification. Mrs O'Neill submitted that the judge's conclusion was essentially speculative; it lacked the sound evidential basis that was a prerequisite to adopting a 30 year starting point.
16. Mr Denison for the prosecution sought to persuade us that this was not the case. He referred us to matters which were not referred to by the judge: that the copse where the body was found was a place to which the appellant had obviously gone in the past because his name had been carved on a tree, and a beer can was found there with his DNA upon it. He submitted that, when these facts were taken into account in conjunction with the sex aids in the appellant's rucksack, the judge could safely draw the conclusion that some form of sexual conduct had taken place in connection with the murder.
17. We do not accept these submissions. The sex aids found in the appellant's rucksack were forensically examined and bore no trace of the DNA of the victim. The appellant said that they were for his personal use, and there was no reason to doubt this. The appellant's previous convictions give no suggestion of a propensity to sexual offences or indeed offences of violence. The psychiatric report, while it demonstrates personality defects, does not suggest a propensity for sexual offending.
18. At the end of the day the only factor that points to the possibility of sexual conduct having been involved is the fact that the victim's body was left naked. That certainly raises the possibility that sexual conduct was indeed involved, but it does no more than that. One cannot escape from the fact that the appellant must have removed all the victim's clothing from the scene of his crime. Why he did so is again a matter for speculation, but the motive that led him to do so could, it seems to us, have also led him to remove such clothing as the victim was wearing at the time of the offence.
19. For all of these reasons we have concluded that the judge's finding that this crime involved sexual conduct must be set aside and that in those circumstances, in accordance with the requirements of section 21, the starting point for the minimum term for this offence is 15 years.
20. Where does one move from that starting point? At the time of sentencing the Crown accepted that the judge should take into account as mitigation that there was no evidence of an intention to kill and that the offence was unlikely to have been premeditated, in addition to the factors of the appellant's youth and immaturity. Those concessions were plainly reflected by the significant reduction that the judge made from his starting point of 30 years.
21. We were concerned that the judge should accept as mitigation the absence of an intention to kill and the absence of premeditation in circumstances where the appellant gave no positive evidence as to the circumstances of the crime (for he denied his responsibility for it), and in circumstances where it had proved impossible to draw positive forensic conclusions from the body because of its concealment. It seems to us at least arguable that in these circumstances the proper approach of the court was to start with the presumption that the appellant had intended the consequence of his acts, namely the killing of his victim. However, the judge proceeded on the basis that it was common ground that there should be no assumption of an intention to kill or of premeditation.
22. He did so, however, in circumstances where he took a 30 year starting point on the basis that this was a murder connected with sexual conduct. If a starting point of 15 years is taken, the question then is: to what extent should regard be had to the mitigating factors, and to what extent should regard be had to the accepted aggravating factor of the concealment of the body? That is one of the aggravating factors expressly set out in the table at paragraph 10(g) of Schedule 21.
23. Mrs O'Neill realistically accepted that in the circumstances of this case the aggravating feature of the concealment of the body outweighed any effect that should be given to what had been agreed as mitigating factors at the time of sentencing. Implicitly it seems to us that she accepted the force of the submission made by Mr Denison for the prosecution that the concealment of the body was very serious aggravation in the circumstances of this case. Not merely did it result in additional anxiety and distress for the relatives of the victim, but it had the effect of concealing from the court the facts of the offence with the possible consequence that the appellant had benefited by the inability of the court firmly to conclude that this was indeed a murder connected with sexual conduct.
24. We share the analysis of counsel. This was, as Mr Denison submitted, a truly dreadful murder of a wholly innocent victim who had been entitled to expect that she could enjoy the amenity of Mitcham Common without molestation.
25. When we weigh up both the aggravation of the concealment of the body with the factors conceded to be mitigation, we have concluded that it is appropriate to quash the minimum term found by the judge and to replace it with a minimum term of 18 years, giving credit for the time spent on remand. To that extent this appeal is allowed.