England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		11 March 2010

Thursday 11 March 2010

THE LORD CHIEF JUSTICE:

1. This is an application by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court a sentence which she considers to be unduly lenient. We grant leave.
2. The offender is John McFarlane. He is aged 40, having been born in 1969. On 13 November 2009, at the Central Criminal Court, he was sentenced by Bean J to life imprisonment with a minimum term of 20 years imprisonment.
3. The indictment contained a single count of murder. Initially he entered a not guilty plea. However, on 6 November 2009, in the Crown Court at Ipswich, before His Honour Judge Devaux, he pleaded guilty.
4. The victim of the murder was Mary Griffiths. She was aged 38, a mother of three children aged 13, 10 and 8. She and the offender became friends. The offender wanted to have more than a platonic relationship with her. She did not, and he felt rejected. In the early hours of 6 May 2009 he went to her home. He was armed with an axe and a bolt gun of the type used in slaughter houses. He used the axe to force his way into her home. He partially disabled the electricity supply. He then attacked the deceased. She was shot in the shoulder with the bolt gun. Her children intervened to try to help. Eventually, she was dragged outside and, as she lay helpless on the ground, she was shot twice more, in front of her children.
5. The facts in more detail are these. The offender had worked as a slaughterman and stockman in Suffolk for a substantial period of time. He was a married man. The nature of his work meant that he knew precisely what a bolt gun could do if misused.
6. The deceased had been living at an address in Bury St Edmunds with her three daughters, having been divorced from her first husband in 2007.
7. The offender and the deceased met. A platonic friendship developed between them, but the offender gradually became infatuated with her. One of the girls described how the relationship between the offender and her mother had been good at the beginning. They liked each other. She described the offender at that time as her "mum's best friend". However, she noticed a change in the relationship and the offender began to act "very weird", constantly telephoning, and ignoring her mother's requests that he should stop. He did for a while, and then the pattern would resume. The deceased described her relationship with the offender as being that of brother and sister, and certainly not the kind of relationship that he hoped would develop between them.
8. In February/March 2009 the deceased told the offender that he must "back off". The offender was very upset. When they later met he ignored her. On one occasion she went out to her car to find that a tyre had been slashed. The inference that he had slashed it was inevitable. Gradually things settled down. The offender was introduced to the new boyfriend of the deceased, and clearly that was a source of much resentment.
9. In April 2009 the offender left his wife. He telephoned a friend to say that he was feeling suicidal and was thinking of taking a knife and sleeping tablets, and hanging himself in the barn. He was taken to his general practitioner who referred him to the Mental Health Crisis Team. That afternoon he was assessed but was not considered to be a sufficient risk either to himself or others to be detained. He was therefore discharged. He was provided with alternative accommodation by a friend. That was described as the start of the deterioration in his behaviour.
10. On the offender's birthday a party was arranged. A number of friends were invited to it, including the deceased. They spoke. It is clear from the terms and tones of text messages which she sent in the days that followed that so far as she was concerned it remained a relationship between friends and nothing more. The offender's response was to express a clear wish that the relationship between them should develop along the lines that he wished and she did not.
11. The offender began to behave in a suicidal way. There was an occasion when a friend telephoned him. He told the friend that he had a rope around his neck. The friend immediately went to find him. She entered the barn where he was. The offender was seen on the top of a teleporter which had its forks and the cage raised to its highest level. A rope had been tied to one of its rafters and it was hanging down beside him. The offender came down and told the friend and her husband that he had taken some sleeping tablets. They took him home. He was then taken to hospital, where he remained for a short time until he left of his own accord. Following a formal assessment he was deemed "not sectionable".
12. Although it is unnecessary to go through the details of the exchanges of text messages, the last received from the deceased is not without importance. It is timed at just after midnight on 6 May. It expresses her gratitude to friends for helping her in a situation in which she believed that the offender had behaved in a horrible way. She said: "I have amazing friends and family and know my true friends will know the truth. And as for [the offender] he just needs to grow up and act his age. .... Speak soon."
13. At 2.42am the offender reported a burglary at a workshop where to his knowledge rifles were stored. This was obviously a device to create a distraction for the police. The nature of the alleged incident required the response of officers as well as other police officers. The call was made from the offender's mobile phone within in a cell site in the immediate vicinity of the police station at Bury St Edmunds. Such a call would have enabled the offender to see the police response before he left the scene in order to visit the home of the deceased, which was about a mile away.
14. He sent a text message to his wife saying that he still loved her, that his head was "fucked up" and he blamed the deceased. He had to "sort it out once and for all".
15. Armed with an axe and the bolt gun, the offender went to the home of the deceased. Because the family was concerned at the possibility of a visit from the offender and her mother was very upset, one of the children had gone to bed with her mother that night in the main bedroom on the second floor of the house. That was unusual. The child would normally have been asleep in her own bedroom on the ground floor. They both went to asleep.
16. They were both awoken by the noise of the offender smashing his way into the house with the axe, which was later recovered from the kitchen. When he entered the house the offender turned off the main electricity lighting circuits. The deceased was able to activate some lighting in the bedroom when she heard the noise. The offender ran upstairs into her bedroom. He grabbed hold of the deceased and, according to the girl who was sleeping with her mother, he tried to strangle her. One of the other girls heard the noise. Between them they did their best to help their mother. At some stage in this process (and the precise details are not entirely clear) the offender fired a shot from the bolt gun used in a slaughterhouse. The shot caught the deceased in the shoulder and caused a serious wound. The offender continued to try to strangle her. Eventually the deceased managed to push the offender away and to escape through the bedroom door. The offender recovered sufficiently to push one of the children away and he pushed the deceased down the stairs into the hallway. One of the other girls opened the front door and the deceased escaped through it, but she was pursued by the offender who then struck her repeatedly. The deceased was crying out for help. The girls did their best to help their mother, but their efforts were to no avail.
17. As the deceased was helpless on ground, the offender re-loaded the gun. He shot her once in the chest. He then again re-loaded the gun and shot her again in the chest. One of the neighbours had been woken by the noise. He looked out of the bedroom window. He saw what he described as a child's head being "bashed on the pavement". He described the moment when the shots were fired as looking like an execution, "quite clinical .... deliberate".
18. In the immediate aftermath of the attack other people who lived in the vicinity and who had heard it came out. One was an off-duty police officer who was staying in the house next door to the home of the deceased. He walked up to within about 10 yards of the offender and asked him what had been happening. The offender said he had a gun, that he should not come any closer or he would be shot. "It wasn't really aggressive. It was almost quite calm, cool, calculated almost. I almost didn't believe him". The off-duty officer put his hands in the air to demonstrate that he posed no threat and he backed away. The offender held his right hand close to his body as though he had something in it.
19. Help was brought for the deceased. Unfortunately, despite every effort from nearby neighbours, including one who was a nurse by profession, there was nothing that could be done for her. She died from her injuries. Help was required for at least two of the children who were deeply distressed.
20. At about 3.15am the offender was found lying face down in the rear garden at an address in Bury St Edmunds. He had cut his arms with a knife. Armed police officers attended. He was arrested. He told the police that a knife found by his side in the garden was not the one he had used to cut his wrists. He had used a second, much sharper knife that had been in his car. Apart from that, he had nothing more to say.
21. The offender was taken to hospital where his physical injuries were dealt with. He was then taken to a clinic. Eventually he was interviewed. He spoke of his early suicide attempt. As to the incident itself, he said that he could recall being in the street outside the home of the deceased in the dark and that the deceased was there crying, plainly in distress at the consequences of the injuries he had inflicted on her. He recalled cutting his arm and using the knife for the purpose. After that he claimed to have no recollection of events.
22. The court was provided with a number of reports. The offender was seen the day after the murder. An assessment was made that he was suffering from a severe depressive illness with a "cognitive triad of hopelessness, helplessness and bleakness about the future". The psychiatrist noted an accelerating pattern of depressive cognitions, increased suicidal thoughts and organic symptoms of depression. That material was before the judge when he considered sentence.
23. In his sentencing remarks the judge decided that the case fell within the category of offences characterised as offences of murder of particularly high seriousness within the context of Schedule 21 to the Criminal Justice Act 2003. Having reached that conclusion, he selected the starting point as a 30 year minimum term. The first question in this Reference is whether that assessment was too low. The judge took account of such mitigating features as he could find. He identified the depressive illness as a feature which reduced the offender's culpability. Making allowance for that condition, he reduced the minimum term from the starting point to 24 years, and then made allowance for the guilty plea tendered by the appellant at the full level of discount. The judge is not to be criticised for making due allowance for both those features in this case. Nevertheless, the submission is that the overall sentence in relation to the minimum term is unduly lenient. It should be emphasised that the dangerousness element of the case and the risk to the public posed by the offender is dealt with and included in the life sentence which was imposed. There is no issue about the imposition of the sentence of life imprisonment, which is mandatory.
24. We agree with the submission made by the Attorney General that the assessment of the starting point at 30 years was too low.
25. The judge referred to the aggravating features of the case. That was how he reached the 30 year starting point. Our concern is that that starting point did not sufficiently reflect the additional features of aggravation beyond the fact that the deceased had been shot and her fatal injuries inflicted by a gun. The offender deliberately armed himself with an axe in order to force his way into his intended victim's home in the middle of the night. He knew that her children would be there with her. He intended that she should be killed. He arranged to divert the attention of the police away from the address to which he was about to go. He took a lethal bolt gun with him. No one knew better than he what the consequences of the misuse of such a gun could be. He either took it with him already loaded, or, having entered the house, he loaded it while he was there. Having entered the house, he interfered with the electric lights. He then set about his attack. It was a sustained attack. The deceased was shot. She was injured. He tried to strangle her. The efforts of her children to help her were brushed aside. The deceased managed to escape from the house. At some stage the offender re-loaded his gun. Outside in the street she was brought to the ground. He shot her in the chest. He then re-loaded the gun and again shot her. The description of this as a deliberate execution is entirely justified. The motive, so far as it can be discovered from the text messages, was somehow to teach her a lesson.
26. It is a distinctive feature of this dreadful case that the children witnessed their mother's execution and the infliction of these fatal injuries upon her. They tried in every way they could to help her, but their efforts were brushed aside. Their ordeal and the memories of it will scar their lives. They will not have the comfort and reassurance their mother would have been able to give them if she had lived.
27. In our judgment the aggravating features of this case, and in particular the impact of and circumstances in which these young children became involved in this incident, take this case well beyond a starting point of 30 years. We consider that an appropriate starting point should have been substantially higher. We do not propose to make any alteration to the discount the judge made for the offender's depressive illness and for the guilty plea, both of which had to be taken into account. However, making every allowance for that and treating them compendiously as a ten year discount, we consider that the proper starting point for this case would have been a sentence of 40 years.
28. In those circumstances the minimum term will be re-assessed and we shall order that it will be a period of 30 years rather than the 20 years ordered by the judge.
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