Title: No
Author: Lynn
Last saved by: BAILII
Company: Merrill Corporation

No. 2009/05403/A1
Neutral Citation Number: [2009] EWCA Crim 2611
IN  THE  COURT  OF  APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London WC2

Thursday 26 November 2009

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)

MR  JUSTICE  SIMON

and

MR  JUSTICE  ROYCE
- - - - - - - - - - - - - - - - 

ATTORNEY GENERAL'S REFERENCE No. 83 of 2009

UNDER  SECTION  36  OF

THE  CRIMINAL  JUSTICE  ACT  1988

R E G I N A

- v -

PATRICK  JOHN  ANDREW  MOORE
- - - - - - - - - - - - - - - - 

Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
165 Fleet Street, London EC4A
Telephone No: 020 7404 1400; Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - 

Mr R Whittam QC appeared on behalf of the Attorney General

Miss S H Goddard QC appeared on behalf of the Offender
- - - - - - - - - - - - - - - - 

J U D G M E N T
Thursday  26  November  2009

THE LORD CHIEF JUSTICE:
1.  This is an application by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1998 for leave to refer to this court a sentence which she regards as unduly lenient.  The sentence was imposed in the Crown Court at Manchester on 17 September 2009 following the offender's plea of guilty to manslaughter on the grounds of diminished responsibility, which plea was accepted.  We grant leave.

2.  The offender is Patrick Moore.  He is 44 years old, having been born in April 1965.  He had a number of previous convictions, including one for wounding with intent for which a substantial sentence of imprisonment was imposed.

3.  The offender had faced a count of murder to which he had entered a not guilty plea.  Following his plea of guilty to manslaughter on the grounds of diminished responsibility, he was sentenced to imprisonment for public protection.  The judge, His Honour Judge Henshell, specified a minimum period of 38 months' imprisonment (less 227 days already spent in custody on remand).

4.  The offender was a heavy drinker.  He suffered from Alcohol Dependency Syndrome; he was an alcoholic.  He would drink regularly in the street with others who suffered from the same condition.  

5.  The deceased, Derek Beardsall, was aged 53 when he died.  He was estranged from his wife.  He had resorted to heavy drinking following a breakdown with severe depression.  He had received treatment from the Mental Health Services.  By the time of his death he was living in his own accommodation in the community.  Despite his problems, he remained in regular contact with his wife, his children and his grand- children.  Although relationships could not be resumed because of his alcohol dependency, he remained close to his family.

6.  The two men met through a mutual friend.  In the summer of 2008 the deceased allowed the offender to move in with him at his flat because the offender had nowhere else to go.  At one time the three of them were living there: the offender, the deceased, and the mutual friend who had introduced them.

7.  Their relationship was governed by the fact that the offender and the deceased were alcoholics.  It was volatile.  There were a number of violent incidents for which the offender was responsible and in which he was the aggressor.  It is clear from the evidence that, as between the two men, the offender had the upper hand.  He was violent and intimidated the deceased who, from time to time, would leave his own flat to sleep on a park bench to get away from the offender.  The deceased had complained that he had been stabbed in the leg.  His wife had seen an injury which would have been consistent with that complaint.  He told her that he felt very intimidated by the offender.  Indeed he observed that "one day this bloke is going to kill me".

8.  Eventually the offender moved out of the deceased's flat into other accommodation.  Nevertheless, the two men continued to meet and to drink together.

9.  On 30 January 2009 the deceased and the offender spent most of the day drinking outside the garage of their mutual friend.  The mutual friend left work at 3pm.  He was told by the deceased that he (the deceased) was going to spend the rest of the afternoon at the offender's flat so that he could continue to drink.  They made their way to the flat.  

10.  Nothing more was heard until the offender contacted the friend on his mobile phone at about 8.30pm.  He said that he needed help because he had had a "ruck" with the deceased.  The friend said that he could not help because he did not have transport and he asked the offender to get the deceased some help if he was hurt.  The offender declined and hung up.

11.  The friend was troubled and he decided to try to find out what had been going on.  Eventually there was another call to him from the offender who aggressively demanded that the friend should come and pick him up.  When the friend declined, the offender hung up again.

12.  The friend, in company, went to the flat of the deceased.  They sought help from the deceased's new flat mate.  Eventually the offender was contacted by telephone and they met outside a social club, where he said that he had been in a fight.  The offender appeared to have an injured hand.  He kept saying "sorry" over and over again, and left.

13.  Eventually the offender was contacted on his mobile telephone and asked if he would hand over the keys to his flat.  He refused at first.  He then agreed to a meeting and finally handed over the keys.  He said, "I've done him in.  He's your fucking mate.  Get him out of my flat".  He said that he wanted the keys back in the morning.  He added that if anyone "grassed" him up, he would kill their kids and indeed the kids of the deceased.

14.  Finally, those involved in this protracted process went to the offender's flat where they observed blood seeping out from under the door on the communal landing.  The police were contacted.

15.  The police found the body of the deceased lying face down on the hall floor. 

16.  Later that afternoon the offender surrendered himself to the police station.  He said that he had had an argument with a mate and that he had come to hand himself in.  He said, "It got out of hand and I went back and found him dead".  He was arrested and interviewed.  In his interviews he accepted that he and the deceased had become extremely drunk.  An argument had started and had ended in a fight.  He said that he had little recollection of what had happened, but believed that he had reacted when the deceased had struck him on an injured collarbone.  He said, in a suggestion of self-defence which was later abandoned, that the deceased had kept coming at him with punches and kicks and that he had only reacted to the violence offered by the deceased.  The fight had spilled out into the hallway and eventually the deceased had fallen to the ground where he lay motionless.  The offender said that he thought the deceased might have been play-acting.

17.  It was clear that this was not the kind of fight which the offender had suggested it was.  He had no visible signs of injury, apart from some bruising and swelling to his left thumb and a graze on his right forefinger, which were injuries consistent with him having inflicted blows to the deceased.  On the other hand, the deceased had sustained extensive head, facial and chest injuries.  His injuries included a fractured nose, a possible fracture to the cheekbone and broken ribs.  His airways were filled with blood.  The likely cause of death was partial asphyxiation.

18.  Forensic examination of the flat revealed "extensive blood spatter" throughout.  The blood was that of the deceased.  Its distribution demonstrated that he had been injured in more than one part of the flat.  There was evidence that the offender had conducted a desultory attempt to clear up some of the blood after the attack and had taken steps to try to avoid any linkage between the clothes which he had worn at the time of the killing and the time of his arrest.

19.  It was accepted that the offender had been extremely intoxicated and that his intoxication, which arose from Alcohol Dependency Syndrome, was directly responsible for his behaviour.  Nevertheless, despite his intoxication, it is clear from his later conduct that he had in mind the taking of steps to seek to cover his involvement in the death.

20.  The offender has a number of previous convictions for offences of dishonesty, criminal damage and public order offences.  He has received a number of custodial sentences for offences of assault occasioning actual bodily harm and other offences of violence.  In April 2001 he was sentenced to five years' imprisonment for wounding with intent.

21.  The court was supplied with two psychiatric reports: Dr Bijral, dated 3 August 2009, and Dr Ness, dated 26 August 2009.  They supported the contention of diminished responsibility.  Dr Bijral summarised the risk posed by the offender as currently at a high risk of relapse if given the opportunity to drink.  As to the likelihood of behaving in a violent and aggressive way, his ability to remain abstinent from alcohol is a significant factor.  He said: 

		"If [the offender] were to relapse to drinking alcohol at any point in the future, even if this was following years of abstinence, he would be at high risk of behaving in a violent and aggressive manner while intoxicated.  Further, this violent behaviour could lead to significant harm to others, especially people known to and living in proximity to him; for example neighbours, house mates, drinking partners, or intimate partners". 

22.  In his sentencing remarks the judge addressed the detailed facts of this case.  He concluded, undoubtedly correctly, that the deceased had been beaten to death by the offender.  He said:

		"No weapons were used, but it was a vicious attack in which you now accept you were at no stage defending yourself."

The judge took account of the extensive injuries suffered by the deceased and the cause of death; the deceased had in effect drowned in his own blood.  There was nothing to suggest that the deceased had fought back at any stage.  The only injuries which the offender had sustained were explained by the blows that he had delivered to the deceased.  The judge also took into account that, following the attack on the deceased, the offender had made attempts to enlist the support of his friends to help him move the deceased and conceal his involvement in his death.  The offender had made no attempt to seek help for the deceased who, he must have known, was seriously injured at the very least.  His behaviour after the attack and his failure to address the injuries and condition of the deceased was probably explained by the alcoholism.  

23.  The judge took account of the decision in R v Wood, to which we shall return.  He recognised by reference to Schedule 21 to the Criminal Justice Act 2003 that the offender had not intended to kill and that he had not used any weapon during the attack.  The judge regarded the violence used on the deceased as considerable but not at the level inflicted in Wood, "where there was throughout an intention to kill and where weapons were both carried and used".  The judge took the view that the level of seriousness did not require a life sentence.  On the other hand, he concluded (and it has not been suggested otherwise) that the offender posed a significant risk of serious harm to the public if he were at large.  

24.  In our judgment the offender is plainly dangerous.  The sentence of imprisonment for public protection was entirely justified.  He must not be released until public safety is assured.  We pause to note that one question for any future Parole Board assessment will undoubtedly be whether the offender is cured of his addiction to alcohol.  It may be that that will never be established.

25.  In considering the minimum period to be served before consideration could be given to the possibility of release, the judge concluded that, balancing all the circumstances, a custodial term in the region of eight years would have been appropriate.  Thereafter, the appropriate discount to be allowed for the guilty plea (which was not offered at the earliest available opportunity) was somewhere in the region of 20%.  Having reduced the sentence of eight years to take account of that period, he then had to halve the period in accordance with the statutory requirement, hence the result of 38 months (less the time spent in custody on remand).  It is that aspect of the sentence which is criticised by the Attorney General as being unduly lenient.

26.  The contention on behalf of the offender is that the sentence was lenient, but not so lenient as properly to be described as unduly lenient.  In our judgment this was an unduly lenient sentence.

27.  When assessing the appropriate period to be served by the offender, the salient features start with the fact that the offender has previous convictions for violence and at least one previous conviction for major violence.  On any view the present offence involved a ferocious, sustained attack against a defenceless man who appears from the evidence to have been helpless, and who had already been subjected to a significant level of intimidation sufficient to drive him out of his own home on occasions.  The prosecution accepted that the offender's mental responsibility for his actions at the time when he beat the deceased to death was substantially diminished.  That must affect the offender's level of culpability, although he was not disabled from making attempts to avoid any connection being drawn between his activity in the attack on the deceased and an attempt to avoid responsibility for his actions.  In fairness, he handed over the keys to the flat where the killing had taken place and eventually surrendered himself to the police.

28.  In sentencing the offender the judge allowed for an element of mitigation in the context of Schedule 21 arising from the absence of premeditation or an intention to kill.  Although we do not criticise that finding, care should be taken to avoid the risk of a double level of mitigation.  Where the culpability for the killing has been reduced from murder to manslaughter on the grounds of diminished responsibility because the offender's mental responsibility for his actions has been reduced, there is a danger of double counting the absence of premeditation or any intention to kill.  If the offender's responsibility had not been diminished, the facts of this case nevertheless indicated a significant and brutal attack on the deceased.  In any event if he did not intend to kill, he would have been reckless about the consequences of the violence which he administered.  

29.  Our attention has been drawn to two authorities R v Wood [2009] EWCA Crim 651; [2010] 1 Cr App R(S) 6, and R v Kehoe [2009] 1 Cr App R(S) 41.  Kehoe was a case at the lowest level of seriousness, while Wood was very much graver for the reasons identified by the judge, namely that the offender carried and used two potentially lethal weapons, and there was no doubt whatever about his intention to kill.  In Wood the court sought to identify some of the salient features which apply in cases of diminished responsibility manslaughter.  It said:

		"21.  .... the culpability of the defendant in diminished responsibility manslaughter may sometimes be reduced almost to extinction, while in others, it may remain very high.  .... we can discern no logical reason why, subject to the specific element of reduced culpability inherent in the defence, the assessment of the seriousness of the instant offence of diminished responsibility manslaughter should ignore the guidance [in Schedule 21].  Indeed we suggest that the link is plain."

Attention was drawn to the operation of Schedule 21 and how a 30 year term for the purposes of Schedule 21 would represent the equivalent of a 60 year determinate sentence.  The court said:

		"This reality cannot be ignored and the vast disproportion between sentences for murder and the sentences for offences of manslaughter, which can sometimes come very close to murder, would be inimical to the administration of justice."

We bear in mind those observations.  Here  we are considering an offence of that gravity which has resulted in death.  That is a hugely significant feature.  Taking the matter in the round and allowing for an appropriate discount for the guilty plea, we have concluded that the sentence should have been twelve years rather than the starting point taken by the judge.  This must then be halved.  

30.  Accordingly, the minimum period imposed on the offender will be altered so as to reflect a six year minimum term.  There will be an allowance for the time spent in custody on remand in accordance with section 240 of the Criminal Justice Act 2003.

SMITH BERNAL WORDWAVE