England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		20 October 2008

1. MR JUSTICE DAVID CLARKE: On 11 June 2008 in the Crown Court at Winchester before His Honour Judge Boney QC and a jury, the appellant, who is 24, was convicted of murder. On the following day he was sentenced to life imprisonment and the learned judge, pursuant to Schedule 21 of the Criminal Justice Act 2003, set a minimum term of 22 years less the 195 days spent on remand.
2. The appellant appealed against that minimum term on a certificate granted by the trial judge in the following terms:

"Is it open to a sentencing judge to pass sentence for murder with a 30 year starting point, if he has satisfied (according to the criminal standard) that under section 5(1) of Schedule 21 the seriousness of the offence was 'particularly high' because one of the examples in section 5(2) was made out (robbery), although there is no second count for robbery in the indictment and therefore no finding by the jury supporting the judge's view?"

3. The question arises against a factual background which we can summarise quite shortly. On the evening of 27 November 2007 the deceased, a man in his 40s, died in a bedroom at his house of stab wounds inflicted by a long bladed kitchen knife. The appellant, his girlfriend and the deceased had met that day at the Probation Service office in Bournemouth. They were seen on CCTV to leave those premises at half past 5 in the afternoon. CCTV coverage subsequently captured them purchasing and drinking alcohol in various locations. At about 7 o'clock they returned to the deceased's home address and continued, to together with the deceased's wife, to drink alcohol.
4. At about 8.00 pm, owing to his intoxicated state, the deceased was helped to his bedroom by his wife. Soon afterwards the appellant went to the kitchen, got a cup of water, returned to the sitting room, and then asked to use the bathroom, which he had already done once since arriving at the house. The deceased's wife became suspicious of what he was doing. She went to check on her husband. She saw the appellant leaving her husband's bedroom, claiming to have gone to the wrong room. She went to her husband. He was asleep. She then took £5 from him, fearing that the appellant might steal his money. She wrongly thought that this was all the money her husband had.
5. She returned to the sitting room. She continued to talk to the appellant's girlfriend. She became aware that the appellant had not returned to the room and she heard raised voices from the bedroom. She heard words to the effect uttered by the appellant, "Give me the money because I paid for the booze." She heard the deceased shout back. The shouting continued, the appellant sounding angry and loud. She went towards the bedroom. She saw the appellant coming towards her. He grabbed a £10 note off the bed. He had a large bladed kitchen knife in his hand. Her husband, the deceased, was lying motionless on the bed. The appellant pushed her out of the way, causing her to fall and fracture her wrist. He and his girlfriend then left the address. They climbed over a wall at the rear. They were picked up by a taxi driver, who described them as being out of breath and noticed that the appellant had, as he put it, some scrunched up bank notes. The appellant and his girlfriend went to her grandmother's house, where he was seen by the girlfriend's brother who described him as being a bit drunk.
6. When arrested and interviewed the appellant said he had been at the deceased's address and had argued with him. The deceased had taken hold of a kitchen knife and threatened him. There was struggle. He had taken the knife. He did not recall stabbing the deceased. He denied taking money from him. He agreed that he had fled the premises with the knife and that he had hidden it before getting the taxi.
7. The appellant, though aged only 24, had a substantial criminal record for dishonesty, motoring and drugs offences, but not for violence, though he had in his early teens served a custodial sentence for an assault offence.
8. There was no pre-sentence report. The judge heard mitigation. There was discussion about the appropriate starting point to be taken pursuant to Schedule 21. He adjourned, considered the matter carefully overnight and passed sentence on the following day. He expressed himself satisfied that the appellant had gone into the deceased's room armed with the knife, which he had seized from the kitchen, to obtain money from the deceased. In our view, he was fully justified in forming that view of the facts having presided over the trial.
9. Indeed, that finding is not in itself challenged. Mr Gritt, arguing the case for the appellant before us, relies positively on the fact that the judge made such a finding to underpin the argument which he advances to this court. What Mr Gritt challenges is whether the judge was entitled to have regard to that finding so as to justify taking the higher starting point of 30 years when there had been no count of robbery on the indictment and therefore no conviction of such an offence by the jury.
10. The judge in his sentencing remarks, having reviewed the evidence which he had heard, said:

"All those pieces of evidence support to a greater or lesser extent the view that this was a murder committed during the course of robbery and that the criminal purpose for which you took the knife into the bedroom can only have been robbery."

11. Then, after considering the facts in considerably fuller detail, he concluded at 4B:

"You took advantage of the incapacity through drink of a man who was twice your age, to rob him of money which you realised he had, and you were prepared to use a devastating knife in order to do so. This was a brutal, merciless, and wicked killing."

12. The learned judge then went on to consider Schedule 21 in some detail. He rightly found that this was not a whole life case, namely a murder of exceptionally high seriousness. He then went on to consider whether it was of particularly high seriousness so as to bring it within paragraph 5, with a starting point of 30 years.
13. Paragraphs 5 and 6 of the Schedule are in these terms:

"5(1) If --

(a) the case does not fall within paragraph 4(1) [which we interpose to say is the whole life case] but the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is particularly high, and

...

the appropriate starting point, in determining the minimum term, is 30 years.

(2) Cases that (if not falling within paragraph 4(1)) would normally fall within subparagraph (1)(a) include --

(a) the murder of a police officer or prison officer in the course of his duty,

(b) a murder involving the use of a firearm or explosive,

(c) a murder done for gain (such as a murder done in the course or furtherance of robbery or burglary, done for payment or done in the expectation of gain as a result of the death),

(d) a murder intended to obstruct or interfere with the course of justice,

(e) a murder involving sexual or sadistic conduct,

(f) the murder of two or more persons,

(g) a murder that is racially or religiously aggravated or aggravated by sexual orientation, or

(h) a murder falling within paragraph 4(2) committed by an offender who was aged under 21 when he committed the offence.

6. If the offender was aged 18 or over when he committed the offence and the case does not fall within paragraph (4)(1) or (5)(1), the appropriate starting point, in determining the minimum term, is 15 years."

14. What the learned judge said at page 4F was this:

"I have then to proceed section 5(1) and decide whether it is particularly high. Section 5(2) provides examples of cases which would normally fall within that category, one of them under subsection (c) being a murder done for gain such as one done in the course or furtherance of robbery. For the reasons I have already set out, I do take the view that the seriousness of this offence was particularly high, committed as it was in the course of a robbery."

15. Having made that determination, he then went on to consider and to reject the submission that he was not entitled to make it in the absence of a conviction for robbery, the submission to which we will return in a moment. He then went on to consider the aggravating and mitigating features of the case. He held that there was an aggravating feature, in that the appellant took advantage of a victim vulnerable through extreme drunkenness, but no other aggravating features.
16. He then discussed the mitigating factors at some length. He pointed out that this was not a case of being prearmed with a weapon beforehand. He accepted that he may not have thought about it until shortly before the offence itself. The plan may have only been formed in the final 15 minutes or so; it was premeditated only to that limited extent. He he was not satisfied of an intent to kill; he dealt with the appellant on the basis that it was a killing with intent to do grievous bodily harm. He made reference to the young age of the appellant. He regarded drink as a neutral factor. He took into account the absence of any significant past record for offences of violence. He then went on to announce the end result of a 22-year minimum term.
17. The point taken before the judge and before this court is that since there was no robbery count on the indictment, there was no finding of robbery by the jury. Thus, it is argued, robbery was not a "associated offence" within the meaning of paragraph 5(1)(a) of the Schedule and in the sense further defined in section 161(1) of the Powers of Criminal Courts (Sentencing) Act 2000, that definition being incorporated into the 2003 legislation by section 305(1). Thus, it is argued, the judge was not entitled to make a finding that this was a killing for gain and to place this case on that account into the category of murders of particularly high seriousness.
18. Counsel relies on various authorities to seek to make good that submission. He deals with authorities which cover sentencing for offence which have not been specifically proved by pleas guilty or verdicts of the jury, such as Canavan and others [1998] 1 Cr App R(S) 79, where the court dealt with the problem of specimen counts. He cites cases in involving buggery where issues of consent determined by the judge have arisen. He refers to Taruab Davies [1998] 1 Cr App R(S) 380 in that connection. He relies on other authorities which are well removed from the issue of sentencing for murder and setting minimum terms in the context, for example, of firearms legislation, Ewbank [2002] 1 Cr App R 4.
19. Only one case is cited before us in the context of sentencing for murder, that is Attorney General's Reference No 7 of 2006 (Mcafee and another) [2006] 2 Cr App R(S) 112. That was a case in which the two defendants had been convicted of a murder in the course of a burglary and the deceased's flat had been set on fire after the murder. The judge took that into consideration as an aggravating factor, considering that this was all part of the joint enterprise, even though, as this court held, the fire setting could have been done by either defendant and there was no proper basis for finding at what stage the fire was set, whether it was in the course of the joint enterprise and which of the defendants did it. It is in that context that the passage relied on appears. We read from paragraph 27 of the judgment of the then Lord Chief Justice, Lord Phillips:

"The judge identified other relevant aggravating factors, including the attempt to burn the premises and the body to destroy the evidence. The Attorney General has urged that this was particularly serious aggravation, having regard to the fact that there was a family asleep above Mr Jones' flat at the time. The judge did not find it possible to decide who was directly responsible for the attempt to burn the premises and the body, but concluded that this must have been a joint enterprise. We do not think that in this case it would be right to sentence on the basis that the two offenders were guilty of the serious offence of arson with recklessness as to whether life would be endangered when the relevant facts were in issue, there was no count raising this issue before the jury, the judge was unable to conclude which of the offenders was directly responsible for the fire and made no findings as to the mental element in relation to either of them."

20. In our judgment, neither this authority in the context of murder sentencing, nor any of the other authorities cited, is authority which supports the principal proposition advanced before the judge and before us. The appellant here was sentenced for murder. He was not sentenced for robbery. There was no "associated offence" of robbery for which he was also to be sentenced. The judge was entitled to form his own view, having heard the evidence, on whether the murder was or was not done for gain. It is to be noted that the paragraph refers to a murder done for gain. Robbery is but one of the examples (given in parentheses) of murders done for gain. Some of those forms of gain would not be capable of being pleaded as a separate count in the indictment for murder.
21. In our judgment, McAfee is not authority for the proposition which counsel advances. If there had been only one defendant involved in the offence in that case, and it was without question that he was the one who must therefore have set the fire, then the judge could, in our judgment, properly have taken that into account. The problem in that case was that there were two defendants.
22. A number of the factors set out in paragraph 5(2) as matters which would normally cause a case to fall within the higher starting point are factors which would not involve guilt of a discrete criminal offence. Examples have been discussed in the course of argument, including murder of a police officer, murder involving sexual or sadistic conduct.
23. In our judgment, the learned judge's approach was a proper one. He was both entitled to proceed on the basis that this was a murder for gain and was entitled to take his conclusion into account in considering whether this was a murder of particular seriousness. He was not, however, bound to take the view that because it was a murder for gain it was necessarily a murder of particular seriousness. We refer again to the opening words of paragraph 5(2):

"Cases that ... would normally fall within subparagraph (1)(a) include [those various matters]."

24. We would not, however, take the view that the judge was wrong to take the 30 year starting point in this case, though it may well be that some judges would not have placed this case into that category. Many murders committed in the course of planned or professional robberies or murders committed for high financial stakes would be regarded as being of much greater gravity than this one and room has to be made in the sentencing process for every type of case.
25. In any event, it seems to us that this is a case in which, whichever starting point was correct, the eventual minimum term would lie between the two starting points. It could well be at or close to the level finally arrived at in this case, which itself was almost exactly halfway between the two statutory starting points.
26. We reject the argument which was starkly stated on paper but from which Mr Gritt does withdraw, rightly to some degree, that the judge should not only have taken the lower starting point but should then have gone lower still to take into account the mitigating circumstances which he identified.
27. It seems to us that in all these cases, and this is a good example, paragraph 9 of the Schedule is important. It reads:

"Detailed consideration of aggravating or mitigating factors may result in a minimum term of any length (whatever the starting point), or in the making of a whole life order."

The topic was extensively discussed, and guidance given by this court in Jones and others [2006] 2 Cr App R(S) 19.

28. As to the mitigating circumstances themselves, the judge made reference to the intent to cause grievous bodily harm rather than to kill, though on a careful reading of his remarks he made no positive finding. He was not satisfied that there was intent to kill. But it has been made clear by this court in a number of case, including Peters and others [2005] 2 Cr App R(S) 101, that where the injury deliberately inflicted is one likely to cause death this will not carry much weight as a mitigating factor.
29. Taking all these matters into account, this court has reviewed the case as a whole and the minimum term at which the judge arrived. Though this was a killing for gain, as found by the judge, both the anticipated and the actual gain were paltry. There was no long period of premeditation. It was an action on more than the spur of the moment, as the judge found, but not much more. But it had those elements of seriousness identified by the judge, which, if this had been a 15 year case, would have brought the eventual minimum term substantially higher.
30. We have concluded that the eventual figure was too high, though not by a very wide margin. We will allow the appeal and reduce the minimum term here from 22 to 20 years, again directing that the time spent in custody before sentence be taken into account.
31. We have been invited to give guidance to prosecuting authorities as to the drafting of indictments with a view to further counts being added to indictments for murder. For reasons which will be apparent from the judgment which we have just delivered, we shall decline that invitation. The appeal is, however, allowed to the limited extent indicated.
32. MR GRITT: I have not considered this at all, and I am not sure whether it is something I can ask for, but will your Lordships be minded to certify a point of law?
33. LORD JUSTICE LEVESON: It is not just a question of a point of law. Every case coming to this court has to generate a point of law. The question is, does it generate a point of law of public general importance appropriate for consideration by the House of Lords which a very much higher hurdle.
34. MR GRITT: Indeed. If I had been right, then this appeal might have had substantial consequences for the drafting of murder indictments and that would be a matter of general public importance appropriate for consideration by the House. I have no question to hand. I have been able to draft one in advance and I would ask for time to discuss it with Mr Montague as well.
35. LORD JUSTICE LEVESON: Would it assist if we consider it in principle, however the question was formed, whether we would be prepared to consider certification, or would you prefer first to draft a question?
36. MR GRITT: I would prefer first to draft a question and to consider the submissions I have to make.
37. LORD JUSTICE LEVESON: The difficulty with that, Mr Gritt, is that this constitution remains in existence only for three days.
38. MR GRITT: My Lord, yes. I don't know Mr Montague's availability, but I could return to this court at your Lordship's convenience.
39. LORD JUSTICE LEVESON: Just pause a moment. (Pause). Mr Gritt, if you want to take some time to put a question into writing, given the formulation by the learned judge that may not be too difficult. You may do so. Can I suggest that you have a word with Mr Montague out of court now. You can either put something in writing today or tomorrow, or even by first thing on Wednesday, and we will announce our decision. Unless you have any particular views to the contrary, we would not consider it necessary for counsel further to appear. This is a discrete question which we just have to make up our minds about.
40. MR GRITT: Would your Lordships be assisted by short written submissions as to the question of whether it is of general public importance or not?
41. LORD JUSTICE LEVESON: I would not prevent you from putting in anything that you wish to put in, but neither would I necessarily encourage it. We have the point that was articulated both by leading counsel in the lower court, by the judge in certifying the case and as explained by my Lord in his judgment. Thank you very much.
42. MR GRITT: Grateful.