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
		5 October 2009

Monday 5 October 2009

LORD JUSTICE RIX: I will ask Mr Justice Burnett to give the judgment of the court.

MR JUSTICE BURNETT:

1. On 19 January 2009, at the Crown Court at Liverpool, before the Recorder of Liverpool (His Honour Judge Globe QC) and a jury, the applicant was convicted of murder and was sentenced to life imprisonment. The period of 32 years (less the 187 days spent in custody on remand) was specified as the minimum term under section 269(2) of the Criminal Justice Act 2003. He renews his application for leave to appeal against sentence and a representation order after refusal by the single judge.
2. The Recorder of Liverpool had tried the case. He concluded that a 30 year minimum term was the correct starting point for the purposes of the Criminal Justice Act. He set out in detailed sentencing remarks the factors that he took into account in deciding the minimum term and in support of his conclusion that it should be 32 years. In his written advice counsel submits that, because the judge was not satisfied that the applicant intended to kill his victim and because the murder was not premeditated, the minimum term should have been less.
3. In refusing leave the single judge made the following observations:

"The minimum term imposed was not manifestly excessive. The starting point of 30 years was clearly correct. The judge identified further aggravating features in that this was a targeted intrusion into the home of a man whom you knew was very vulnerable; your victim was tortured before you murdered him; and you set fire to his house after inflicting a terrible assault upon him. The judge properly cautioned himself to be alive to the overlap between the starting point and the aggravating features he identified. He was entitled to increase the minimum term to the extent he did. This was a dreadful killing, fully deserving the sentence you received."

We agree with those observations. We will outline the facts of the case and the sentencing remarks which in our judgment fully support those conclusions.

4. The 64 year old deceased, Mr Gard, was a man with learning difficulties. He was considered to be particularly vulnerable following the death of his wife in 2006. Since that time a number of people with dishonest motives, alcoholics and drug addicts, had targeted him and visited him at home. Mr Gard's friends and neighbours were concerned for his welfare and contacted the police on a number of occasions. They believed that a number of people were exploiting his vulnerability.
5. In December 2007, the applicant and two others invited themselves into Mr Gard's home. They drank his beer and smoked his cigarettes. Whilst Mr Gard was showing them photographs of his wife, the applicant and the other man went upstairs and stole his Post Office card and his wife's engagement and wedding rings, which they later pawned. Before leaving the house, they violently assaulted Mr Gard, cut his telephone line and threatened to kill him if he went to the police.
6. When Mr Gard was later told by his brother not to let such people into his house in the future, he told him that he was afraid of them and felt they might kill him and set his house on fire if he did not let them in.
7. At about 4am on 13 March 2008, the emergency services were called to a fire at Mr Gard's home. It was later established that there were three separate seats of fire. Mr Gard was found in the bedroom dying from head injuries as the fire was being extinguished. A post-mortem examination found that he had died of head injuries probably from a stamping-type assault, and blows with a fist or a weapon. His face had been smashed in and there was massive blood loss. There was a total of 30 external injuries to his head and face, three of which were non-life-threatening cuts to his neck with a sharp object. There were too many fractures to his face and head to be counted. Additionally, there were twelve fractured ribs.
8. The applicant's fingerprints were found at the scene. In the early hours of the morning on 15 March 2008 he was arrested. Mr Gard's blood was found on his clothing. The applicant declined to comment in interview.
9. The Recorder noted that this was a murder committed for gain in the course of a dwelling-house robbery or burglary. The applicant had broken in and been very violent towards the deceased in circumstances where he had previously been violent towards him when stealing from his property. The appropriate starting point was 30 years. The aggravating features were that Mr Gard was a vulnerable man about whom those close to him were worried that he was being taken advantage of and exploited. After the December incident Mr Gard had been left anxious, confused, upset, very vulnerable and fearful of the return of the applicant and others. The applicant was well aware of that and had deliberately targeted and entered his home in full knowledge of that vulnerability. The matter was further aggravated by the physical suffering Mr Gard must have endured during the course of what happened in the house. Entry had been gained at about 2am and there had been noises consistent with the applicant still being there an hour and three-quarters later. Cuts on Mr Gard's neck showed that he had been tortured, no doubt to find out where he kept his valuable possessions. The full extent of his injuries was evidence of a concerted and determined effort to cause extremely serious harm or to kill. The pathological evidence established that he had remained alive for an hour or two after the beating, although he was probably unconscious. The matter was further aggravated by separate fires being started in different rooms to destroy aspects of the evidence. The Recorder considered whether the applicant intended to cause serious bodily harm rather than to kill. There were so many facial injuries that they could not be counted. The forensic evidence was consistent with the applicant kicking or stamping on Mr Gard as he lay bleeding on the ground. The judge concluded that at the time the applicant was being violent, he either had an intent to kill or if he did not he should have appreciated from his actions that death was a virtual certainty. Thus, concluded the Recorder, there was little mitigation if his intention fell short of a specific intent to kill. The Recorder noted that the applicant was not suffering from any mental illness, although he was of low intelligence. Nonetheless, he knew the difference between right and wrong. He had previously served custodial sentences. The Recorder took account of the relevant guideline cases which are referred to in counsel's advice.
10. In our judgment the approach of the Recorder to this sentencing exercise was meticulous. Having conducted the trial, and so in a position to know the detail of what had occurred, he directed himself to the correct legal principles and carefully weighed all the factors that informed the question of the length of the minimum term. He explained his approach to the question of intent and also fully covered the factual ground encompassed in the suggestion that this murder was not premeditated. The violence inflicted on Mr Gard extended over a long period and could not be described as spontaneous. We are unable to see any error in the Recorder's approach, nor to accept that the minimum term can be criticised. For these reasons this renewed application is refused.

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