England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SHEFFIELD
MR JUSTICE McCOMBE
T20117153,T20117190

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/12/2012

Lord Justice Hughes:

1. These defendants were all convicted, after trial, of murder. Their appeals challenge the minimum term which the judge attached to the mandatory life sentence which each received.
2. We take the facts essentially from the concise summary given by the judge in the course of conspicuously careful sentencing remarks.
3. The defendant Lee Griffiths is the father of the defendants Thomas and Luke Griffiths and the stepfather of Mark Jackson. Lee and others were concerned in a commercial operation for the supply of drugs, chiefly heroin. The operation was centred on a bungalow in Grimsby. It bought, and sold on, about half a kilogram of heroin every seven to ten days. The purchase price was £10,000 or more each time. Retail sales were made both from the bungalow and via a number of street sellers. Lee was the mastermind and leader of this team of drug dealers. His son Thomas was a trusted secondary participant. One of the minions used as a driver and a street seller was the deceased, Adam Vincent. Vincent was himself an addict and in very bad health as a result. He was in hospital for two weeks at the end of January 2011 but discharged himself against advice and returned, despite a parlous state of health, to the trade. Lee Griffiths became convinced in February 2011 that Vincent had betrayed the gang, either by stealing some thousands of pounds, or by doctoring the drugs, or by informing on the others. That conviction of Lee's was connected in his mind to the arrest of Lee, Thomas and a driver (Frow) on 11 February, when they were stopped in a car containing drugs. It was also fuelled by Lee's own use of drugs, including crack cocaine. In consequence of Lee's belief, arrangements were made by the four defendants to apprehend, beat and interrogate Vincent. Serious violence was inflicted on him over a period of between one week and two, culminating in his death on Monday 28^th February in the hands of the gang, still being tortured. He was freed from time to time, and seen to be bearing injuries. This period was not the first time he had been injured; when in hospital in January he was seen to have air pellets lodged in his chest and neck. Within the period leading up to his death, one occasion was spoken of by a gang member who gave Queen's evidence: Lee had interrogated Vincent with a knife to his neck, Thomas had punched him in the face, and Luke had kicked him hard to his side. Vincent was in such fear that he lost control of his bowels. By the time he died, Vincent had damage to his spleen and multiple broken ribs, probably attributable to stamping, and had been struck at least three times to the head by some weapon such as an axe, a hatchet or a golf club; these last blows were the immediate cause of death. Having killed him, the defendants dismembered his body crudely but effectively with a hacksaw, dividing it into six parts. Those parts were then disposed of in separate watercourses during the night of 2/3 March, and using a vehicle which had been acquired specifically for the purpose. Some of the clothing of the deceased, and some pieces of bone, were burned at a remote location in the early morning of 3 March, and other potentially incriminating material was burned in a bonfire at the bungalow. Friends of the defendants who had some knowledge of Vincent being in the hands of the gang were told peremptorily to keep their silence.
4. All four defendants were convicted by the jury of murder. All were also convicted of conspiracy to pervert the course of justice by dismembering and disposing of the body. Lee and Thomas were convicted of conspiracy to supply class A drugs. Jackson was acquitted of the drugs offence, and the jury failed to agree as to Luke on that count, and was discharged from reaching a verdict.
5. Lee Griffiths was 42 at the time of the murder. He had some twenty two previous convictions, chiefly for dishonesty and vehicle offences. There was no prior conviction for violence except one public order offence, although he was found in possession of pepper spray in 1999.
6. Luke, his younger son, was 19 at the time of the murder. He had no previous conviction or caution.
7. Thomas was 21 at the time of the murder. He had no previous conviction but had sustained a reprimand for assault in 2005. Reports showed that his behaviour had been troublesome from his childhood, during which he had also been bullied. He had a low IQ, assessed as mild learning difficulties and some signs of paranoid, aggressive and anti-social personality disorder.
8. Mark Jackson was 26 at the time of the murder. He had previous convictions since the age of 16, which included disorder and violence. He had served sentences of 6 months for affray, and of 18 months (twice) for assault occasioning actual bodily harm and wounding. There were also offences of dishonesty.
9. The judge approached the fixing of minimum terms with considerable care. He applied himself directly to sections 269 and 270 and to Schedule 21 of the Criminal Justice Act 2003. He correctly reminded himself that the Schedule was not to be applied mechanically but that sentences reflecting the true criminality involved were to be passed. He was, however, required by section 270 to state which of the starting points set out in Schedule 21 he adopted, and did so as 30 years.
10. The Crown had submitted that this case fell directly within paragraph 5(2)(c) of the Schedule, namely that it was murder done for gain. It contended that the murder was done in aid of preserving the profitable illegal trade in drugs. It was not contended that any other of the examples of particularly serious conduct contained in paragraph 5(2) applied. In particular, this was not said to be a murder involving sadistic conduct; the violence, though sustained and considerable, had not been done for pleasure.
11. The judge did not hold this to be within the terms of paragraph 5(2)(c), ie a murder done for gain. He reminded himself, correctly, that the cases itemised in paragraph 5(2) are simply examples of what the court will normally hold to be murders of which the seriousness is "particularly high", and that the list is in no sense exhaustive. What he then said was this:

"In my judgment a murder in perceived protection and enforcement of the interests of a commercial drugs supply business, even if not precisely a killing for gain, is very closely analogous to it. There can be no sensible distinction in seriousness, in my judgment, between such a murder and a murder committed in the course of a robbery of burglary, two of the specific examples given in the statute…

….the fatal attack was motivated by the perceived need to extract retribution on Mr Vincent for having damaged the gang's interest and to enforce a primitive discipline within the gang."

12. The judge then identified aggravating factors in:

i) the vulnerability of the victim;

ii) the physical suffering inflicted on him prior to his death; and

iii) the dismemberment and disposal of the body.

13. The judge also identified mitigating factors. In the case of the younger defendants, their age was such. For all defendants, he expressly found that he was prepared to proceed on the basis that there had not been an intention to kill, but rather an intention to do grievous harm, and death had resulted. For much the same reason he rejected significant premeditation as an additional aggravating factor.
14. The judge held that the synthesis of those factors took the sentence up from the starting point of 30 years to 35. In so concluding, he made no further addition for the count of conspiracy to pervert the course of justice, plainly because that had been treated as a factor aggravating the sentence already and to do so would be to count it twice. He observed that, had it stood alone, it would have justified a sentence of about 8 years (thus the equivalent of a minimum term of 4 years). Nor did he add to the sentences, in the cases of Lee or Thomas, for the count of conspiracy to supply drugs, taking the view that it was already reflected in the long minimum terms which were arrived at after considering the background of drug dealing. He did observe that if it had stood alone that count would have called for sentences of not less than 12 years for Lee and 9 years for Thomas.
15. We entirely agree with the judge's self direction that Schedule 21 cannot be applied mechanically, and that paragraph 5(2) is in no sense an exhaustive list of the kinds of case which a court may determine to be of particularly high seriousness. This court has said so on too many occasions to list. A mechanical application of the Schedule is apt to create absurd anomalies, such as that corrected in R v Height & Anderson [2008] EWCA Crim 2500; [2009] 1 Cr App R(S) 676, where a simplistic application of the schedule would have resulted in the paid contract killer being subject to a starting point double that of the employer who incited and engaged him and for whose purposes the killing was carried out. Nor can the Schedule be applied in an arithmetical manner, by adding or subtracting years attributable to separate features of the case: that was demonstrated to be unworkable in R v Peters and others [2005] EWCA Crim 605; [2005 2 Cr App R (S) 101 at 627; see paragraph [8]. As was observed in R v Jones [2005] EWCA Crim 3414; [2006] 2 CR App R(S) 18 at 117, the very large gaps between the starting points identified in the Schedule present a sentencer with considerable difficulties in his quest to match the penalty to the infinitely variable circumstances of crime. It is nonetheless clear that it was not Parliament's intention that the Schedule should be applied mechanically by fitting each case into the nearest available starting point and making only minor adjustments to it. That is clear from paragraph 9 of the Schedule, which says:

"Detailed consideration of aggravating or mitigating factors may result in a minimum term of any length (whatever the starting point)…."

16. The principal challenge mounted here to the judge's sentence involves the contention that this was not a murder for gain. However, as we have pointed out, the judge did not say that it was, and it was quite unnecessary to force the case into the straitjacket of paragraph 5(2)(c) in order to arrive at the conclusion that the right starting point was 30 years. What the judge did conclude was that this was a murder committed in pursuit of a large-scale and very serious criminal enterprise and for the purposes of enforcement of loyalty or of primitive discipline. The question raised by this appeal is this: where on the scale of murders does this situation lie? Was the judge entitled to treat it as of a seriousness comparable to the examples listed in paragraph 5(2) or was he not?
17. Mr Barnes QC, for Thomas Griffiths, submitted to us that because paragraph 5 is concerned with murders of especial gravity it would be wrong for the court to go outside its express terms and, in effect, extend the concept of a murder done for gain. That is tantamount to a submission that the examples given in the paragraph are exhaustive, which is an argument which Mr Barnes correctly disclaimed, and we reject it. Nor can we accept his argument that a murder can only be done for gain if the gain or potential gain is identified. The point does not arise because the judge did not treat this as murder for gain, but in any event, although no doubt it will often be possible to identify the gain, there can clearly be cases where gain is the purpose but the mechanism and amount are obscure. Mr Barnes further submitted that the judge's findings in this case amounted to no more than a motive of revenge for supposed misbehaviour on the part of the deceased, and that that does not bring a case within paragraph 5(2). We agree that revenge is a frequent motive for murder and that by itself it will not ordinarily make the offence of particularly high seriousness if otherwise it would not be. But the converse is also true. If the offence is of particularly high seriousness properly comparable with the examples set out in paragraph 5(2), the fact that revenge is a component will not save it from the heightened starting point. This was not, on the judge's findings, comparable to the case identified by Mr Barnes of revenge against a cheating spouse. This was torture, and eventually murder, in the furtherance of a serious criminal enterprise, to keep the enterprise intact and to discipline its members. There was ample evidence of threats to others as well as to the deceased. The fact that prolonged interrogation was going on is a further indication of this purpose.
18. We conclude that the judge was entitled to hold that this murder, bearing these characteristics, was comparable with the examples given in paragraph 5(2). Some of those might, in particular circumstances, be less serious, as for example the owner of a lawfully held shotgun who, in the course of a drunken argument with a friend, uses the gun on him. We are not to be taken as holding that all murders committed in the course of criminal enterprises will be of particularly high seriousness – it will depend on the scale of the enterprise and the circumstances of the killing, and it is clear that some will not be at all suitable for a 30 year starting point. But the combination here of the pursuit of large-scale drug dealing, with enforcement of criminal discipline, and with sustained torture sufficiently justify the conclusion arrived at by the judge. The incidence of potential gain, in the sense that the drugs business was no doubt very profitable, is not the determining factor. The position could easily be the same if a similar killing were carried out to enforce discipline in one's followers in a different form of criminal enterprise which was not principally acquisitive, such as gang warfare or the sexual exploitation of minors.
19. After thought, the judge adopted the same starting point for each defendant. In our view he was right, on the facts of this case, to do so. He did not, in doing so, forget that the defendants Luke Griffiths and Mark Jackson had not been convicted of the drug conspiracy, a matter which is of some significance and to which we will return. Since all the defendants were equally involved in the killing, and since the killing was very plainly for the purpose of preserving the criminal enterprise intact and of disciplining its minor members, all were equally affected by its characteristics. We are unable to agree with the submission, made for Luke by Mr Harbage QC, that the proper inference is that he was acting from no more purpose than to obey a dominant father. We do not doubt that father was dominant, nor that Luke was influenced greatly by him, and this is of relevance later in the exercise. But he very clearly knew what the background and purpose of the torture and murder was and he was fully involved in it.
20. Limited challenge has been mounted to the judge's identification of aggravating factors. We agree that the victim was vulnerable in the sense that he was ill and dependent on drugs. We also agree with the submissions made on behalf of the defendants that these conditions were self inflicted. Perhaps more significantly, we are quite satisfied that the subservience of the deceased, which was part of his vulnerability, is already factored into the sentencing process because it was part of the enforcement/punishment characteristic of the offence.
21. We have no doubt that we should reject the contention that the sustained ill-treatment of the deceased was irrelevant as mere historical background or separate but similar prior conduct. It may be that in other cases prior similar misconduct would not be sufficiently connected to the killing to be relevant to the adoption of the starting point, but in this case there was the clearest evidence of a single course of conduct involving repeated "interrogation" and serious violence, culminating in injuries to which the deceased succumbed. It was all part of the murder. However, as with the vulnerability of the victim, we take the view that this factor has already been part of the calculation of the correct starting point and ought not to result in a further increase beyond it.
22. No one has contended that the callous dismemberment and disposal of the body do not aggravate the offence and justify an increase in the minimum term. We agree.
23. The principal mitigating or reducing factor in this case, affecting all defendants, is the absence of an intention to kill. We agree that in a case of sustained violence in pursuit of an intention to cause grievous harm, this is of less force than it might be in cases of sudden spontaneous attack, but it is still necessary to recognise the difference between this case and a similar one of gang enforcement in which there was a deliberate execution. Such cases are, unhappily, by no means unknown, and we are sure that they are yet more serious than the present case.
24. The objective in applying Schedule 21 is to do substantial justice by fitting the punishment, so far as can be done, to the individual features of the case, whilst remaining loyal to the general framework of the schedule. We have reached the clear conclusion that in this case the aggravating factor constituted by the disposal of the body and the mitigating factor of the absence of intended killing in broad terms balance each other. The judge, having said that he arrived at 35 years, imposed a minimum term of 32 years on Lee Griffiths. That meant that he added more than he subtracted. We are persuaded that in his extremely careful sentencing the judge somewhat undervalued the force of the absence of intent, and to the extent that he added for the vulnerability of the victim and/or the sustained torture did not entirely eliminate an element of double counting.
25. Lee was one of two defendants convicted of the substantial drugs conspiracy. We have no doubt that the judge was right to say that in his case the sentence for that, had it stood alone, would not have been less than 12 years. In point of fact, like the judge, we think it should have been longer and we have no doubt that the two cases cited to him involving sentences of about 12 years after trial were ones of lesser scale than the present; neither involved as much heroin as this one. The drugs alone would have called for a sentence of about 14 years, or the equivalent of a minimum term of 7. We do not agree that the drug dealing has already been factored into the sentence; what has been factored in is the fact that the killing was in pursuit of the criminal enterprise and for the purpose of discipline and enforcement against minor operatives. The antecedent drug dealing remains. But we do agree that once one is dealing with a minimum term as long as 30 years, the equivalent of a determinate sentence of 60 years, which no court would ever impose, the general principle of totality leads to the conclusion that it is not appropriate to add further to it for the drugs supply itself.
26. Accordingly we arrive at 30, not at 35 years, and we remain there for Lee Griffiths, rather than the judge's figure of 32.
27. The remaining consideration concerns the relative positions of the several defendants. The judge made adjustments for the ages of the younger defendants and for the absence of any relevant previous conviction in the cases of both Luke and Thomas Griffiths. Having done so, he imposed minimum terms as follows: 29 years for Jackson, 27 year for Thomas Griffiths and 26 years for Luke Griffiths.
28. It is important to stand back and view the sentences together. It is abundantly clear that Lee was the dominant member of this group and that the impetus for the treatment of the deceased came from him. All the other defendants were either his sons or his stepson; they were for that reason particularly under his influence. Moreover he was, on the judge's finding, clearly at times irrationally dominant, probably in part because of the intake of crack cocaine. Further, the defendants Luke Griffiths and Jackson are entitled to say that, because they were not convicted of the drugs offence, there ought to be some recognition of that fact in the relative standing of their sentences to that of Lee. Thomas Griffiths cannot say this. Next, as the judge recognised, both Luke Griffiths and Thomas Griffiths have no relevant previous convictions. The same cannot be said of Mark Jackson, who has a significant history of violence. Lastly, there must, as the judge held, be adjustment in recognition of the ages of those two defendants, 19 and 21 respectively, especially in the case of Luke Griffiths,who was only 19. We agree that a sentence of a minimum term of 26 years on a man of 19 is a very severe sentence.
29. Adjusting for these various factors and checking the outcome by standing back to view the overall picture, we conclude that the minimum terms ought to be as follows: for Jackson and for Thomas Griffiths, for the different reasons we have identified, 25 years, whilst for Luke the term should be 23 years.
30. We have tested our conclusions by asking ourselves what would have been the outcome if the right starting point had been 15 years. In that event, the first adjustment would have had to be a considerable uplift for the fact that the offence was committed in aid of a major criminal enterprise and to enforce discipline within it. That would have led us to a term of about 25 years. There would then have had to be a significant adjustment upwards for the drugs offence itself in the cases of Lee Griffiths and Jackson, and there would have been a further upward adjustment in all cases for the dismemberment and disposal of the body. There would have been a reduction for the absence of intent to kill and the necessary adjustments to achieve a fair relative balance between the defendants. The result would not have been very different from the one at which we have arrived by the different route, and indeed would not have been even if, contrary to our view, the criminal enforcement aspect of the case only took the minimum term up to somewhere between 20 and 25 years. That this should be so is not surprising, still less unfair. As paragraph 9 of Schedule 21 makes clear, the eventual sentence may be of any length, whatever the starting point. Its length depends, in the end, on the overall circumstances of the case.
31. For the foregoing reasons, these appeals against sentence are allowed to the limited extent that we substitute minimum terms as follows:

Lee Griffiths: 30 years

Luke Griffiths: 23 years

Thomas Griffiths: 25 years

Mark Jackson: 25 years.