England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT ST ALBANS
HIS HONOUR JUDGE GULLICK
T20147076

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/01/2015

Lord Justice Bean :

1. This appeal against sentence in a murder case, brought by leave of the single judge, raises once again the issue of when a weapon is to be treated as having been "taken to the scene" for the purposes of paragraph 5A of Schedule 21 to the Criminal Justice Act 2003.

The facts

2. The appellant lived alone at Flat 51 Guinness House on the Panshanger estate in Welwyn Garden City. Rachel Lowes lived at Flat 50, next door to the appellant, with her 18 month old daughter. Scott Stone, the deceased, was her partner and the father of the child. He would visit regularly.
3. When Ms Lowes moved into her flat in September 2013 she initially became friends with Leaigh Josling, who lived at flat 53, just across the hallway from the appellant and Ms Lowes.. As time went on the two women fell out. In the weeks and months leading up to the offence there had been on-going arguments and complaints were made.
4. The appellant was a close friend of Ms Josling and they spent a good deal of time socialising with each other. Ms Lowe had made complaints about the appellant playing loud music at all times of the day and night and that this had interfered with her baby's sleep.
5. Ms Lowes heard rumours circulating locally that the appellant was a paedophile. There appears to have been no truth whatever in those rumours, but they seem to have coloured her view of the appellant.
6. On the night of Saturday 15th March 2013 Stone stayed with Ms Lowes. The following morning they had an argument and Stone left at about 10.30am on Sunday 16th March 2013. They continued to exchange angry text messages. Stone spent the afternoon drinking with a friend and then arrived back at his mother's home at 5.45pm. At the time of his death he had a blood-alcohol level equivalent to two and a half times the drink drive limit.
7. The flats had balconies. Shortly after noon Ms Lowe saw the appellant on his balcony drinking and listening to music. At about 2.00pm another person saw him still doing the same thing.
8. In the afternoon that Sunday Ms Lowe took her daughter to visit her sister. She returned just after 6.30pm. As she approached the block of flats she saw the appellant in the car park behaving strangely. He entered the block first and she followed a minute later. She took the lift up to her flat and entered the communal area
9. As Ms Lowe walked to her front door the appellant walked past her and she thought he said "fat whore" or something similar. When he repeated those words she told him to, "fuck off" as she went to enter her flat.
10. The appellant approached Ms Lowe angrily. She struggled to push her front door open and get her daughter's buggy inside. The appellant shouted at her and tried to force his way into her flat. She pushed against the door, but the appellant put his foot in the door so that she could not close it. He continued to insult her and said "You shouldn't have kids". Eventually he stepped back and she was able to close the door. She shouted that she was going to all the police, which she did at 6.35pm.
11. The appellant visited Ms Josling and then left the building to buy some beer for her. He returned after five minutes, delivered the beer and returned to his own flat.
12. Meanwhile, Ms Lowe had sent a text message about what had happened to Jamie Mitchell, a friend of Stone. After phoning Ms Lowe, Jamie Mitchell rang Stone. Jamie Mitchell described Stone as being "fuming". When Stone left his mother's house she said that he was "quite clam, but annoyed".
13. As Lowe kept watch at the window for the police to arrive she saw Stone arrive. It was 7.13pm when he started to bang on her door. By the time she opened the door Stone was at the appellant's front door. He was banging and kicking the door and shouting words to the effect, "Get the prick out here".
14. Ms Lowe took hold of Stone and told him the police were coming and he should come away. However, Stone was angry and he returned to the appellant's door and resumed banging on it.
15. Suddenly the appellant's door opened and without saying a word the appellant plunged a knife into Stone's chest. 80% of the blade entered, to a depth of 23 centimetres. That fatal blow damaged the left lung and penetrated through the heart and came to a halt to the left of his spine. As Stone was bent forward clutching his chest the appellant chopped him over the head with the knife causing a wound and a groove in the skull. That blow was later found to have been a substantial blow and required a great deal of force. The appellant pushed Stone to the end of communal hallway and out of sight around the corner.
16. The appellant returned and went back into his flat. He was holding the large knife.
17. Police officers arrived. Stone was found in the stairwell, collapsed against a wall in a pool of blood. Although paramedics reached the scene quickly they were unable to save him. He had lost a great deal of blood. He was declared dead at the scene at 8.14pm.
18. The appellant took the knife that he had used to stab Scott Stone into his own flat, made some effort to wash off the blood and placed it into the kitchen drawer.
19. The appellant then left his flat and then crossed the corridor to the flat of Ms Josling. He took a small knife with him. Ms Josling described him as being quite calm. He told her, "Call the police, I reckon I'm going to get arrested for that". He then put the knife down and used Ms Josling's phone to call the police. during that call he said, "Someone's just attacked my door, I was so scared…that I got a knife…". He went on to say, "He's gone now, but to be honest with you I stabbed him with a knife". The prosecution described the appellant as being "strikingly calm" during that call.
20. At 7.30pm the appellant was found in Ms Josling's flat and he was arrested for attempted murder. In response he shrugged his shoulders. At the police station, when arrested for murder he responded, "You're not serious".
21. When samples were taken by a Scenes of Crime Officer it was noticed that the appellant had small stab wound to the back of his right leg. The appellant said, "He must have stabbed me". He was taken to hospital and the wound was stitched. It was not clear how the wound was caused. There was no evidence that Stone used a knife during the incident. When interviewed on 17th March 2014 the appellant chose not to answer any questions.
22. A knife recovered from the appellant's home was the knife that killed Scott Stone. It was about 11 inches long with a blade that had a maximum width of just over one inch. DNA from blood stains matched that of Scott Stone. Attempts had been made to wash the knife.
23. A post mortem concluded that the cause of death was a single stab wound to Stones chest which would have required moderate or more force. Two other significant wounds were a 7 centimetre wound to the top of the head, with a grove cut into the skull to a depth of almost half a centimetre, suggesting a chopping type action with a heavy bladed weapon
24. There was also a 4 centimetre curving wound, or cut, on the right cheek, through partial thickness of the skin only. That appeared to have been caused by a knife.

The statute and the authorities on it

25. The Criminal Justice Act 2003 (Mandatory Life Sentence: Determination of Minimum Term) (Order) 2010 amended Schedule 21 of the Criminal Justice Act 2003 (the 2003 Act). After paragraph 5 a new paragraph 5A was inserted. This provides:

"(1) If –

(a) the case does not fall within paragraph 4(1) or 5(1),

(b) the offence falls within sub-paragraph (2), and

(c) the offender was aged 18 or over when the offender who committed the offence,

(d) the offence is normally to be regarded as sufficiently serious for the appropriate starting point, in determining the minimum term, to be 25 years.

(2) The offence falls within this sub-paragraph if the offender took a knife or other weapon to the scene intending to –

(a) commit any offence, or

(b) have it available to use as a weapon,

(c) and used that knife or other weapon when committing the murder."

26. The leading authority on paragraph 5A is the decision of this court on four appeals, reported as Kelly and others [2012] 1 Cr App. R.(S) 56; [2011] EWCA Crim 1462. Lord Judge CJ said:

"The structure of Schedule 21 [to] the Act (identified in a series of judgments of the Court of Appeal Criminal Division) requires the starting point for the assessment of the minimum terms for adults convicted of murder to be identified by reference to murders of exceptional seriousness (full life); of particularly high seriousness (30 years); and murders where the seriousness is neither exceptional nor particularly high (15 years). Cases which would normally fall within the exceptional and particularly high levels of seriousness are listed and exemplified in paragraphs 4 and 5 respectively. Nevertheless these lists do not create impenetrable compartments and every case will be subject to its own specific and individual features of mitigation and aggravation. Therefore cases which are not expressly described in paragraphs 4 and 5 may be treated as cases of exceptional or particularly high seriousness, and cases which on their face appear to fall within one or other of the paragraphs may, on examination, be assessed at a lower level of seriousness than at first appeared. Precisely the same considerations apply to murders committed by offenders aged under 18 years for whom the starting point would normally be 12 years. These principles are clear from authorities such as R v. Last [2005] 2 Cr App R (S) 64, R v Peters [2005] 2 Cr App R (S) 101, R v Jones [2006] 2 Cr App R (S) 12, R v Height and Anderson [2009] 1 Cr App R (S) 117, R v M, AM and Kika [2010] 2 Cr App R (S) 19 and R v Inglis [2010] EWCA Crim 2637. Thus in Height and Anderson the court observed (at para. 29):

"We have lost count of the number of times when this court has emphasised that these provisions not intended to be applied inflexibly. Indeed, in our judgment, an inflexible approach would be inconsistent with the terms of the statutory framework. No scheme or guidance or statutory framework can be fully comprehensive, and any system of purported compartmentalisation or prescription has the potential to produce injustice. Even when the approach to the sentencing decision is laid down in an apparently detailed, and on the face of it, intentionally comprehensive scheme, the sentencing judge must achieve a just result."……….

In the context of murder committed with a knife before the coming into force of paragraph 5A of schedule 21, in M, AM and Kika this court had already emphasised (at para 7):

"… [I]t is always an aggravating feature of any case involving injury – and of course death – that the injury or death has resulted from the use of a knife or any other weapon. … The question for the sentencing judge in the end is not for compartmentalisation of the specific offence within this or that paragraph of the Schedule but the proper judicial assessment of the appropriate sentence to reflect the facts of the individual case and its seriousness and such mitigating features as there may be. Justice simply cannot be done by a mechanistic filling in of "tick boxes" and unconsidered assignment of cases into compartments. … Deaths in circumstances like these outrage and horrify the collective conscience of the community as a whole. We repeat…anyone who goes into a public place armed with a knife or any other weapon and uses it to kill… and who is brought to justice, must anticipate condign punishment."

These observations illustrate the way in which this court addressed what, at first sight, appeared to be an overly prescriptive, unnecessarily complex, and, on occasions, wholly artificial, apparently all embracing, statutory framework within which sentencing judges were required to assess the appropriate minimum term following conviction for murder. We say "at first sight" because, as we have said, careful study of the statutory language makes clear that paragraphs 4(1) and 5(1) identify not the ultimate decision but "the appropriate starting point", and paragraphs 4(2) and 5(2) specify the cases of murder which would "normally" but not inevitably trigger a finding of exceptional or particularly high seriousness. In short, on close analysis, Schedule 21 did not create a stepped sentencing regime with fixed dividing lines between the specified categories.

This is the background against which we turn to consider paragraph 5A and its inclusion within schedule 21. It does not provide that the seriousness of an offence of murder committed with the use of a knife or other weapon falls within the "exceptionally high" or "particularly high" level of seriousness. .,,,,

It is also plain from the structure of paragraph 5A, particularly by reference to paragraph 5(2)(b) ("a murder involving the use of a firearm or explosive"), that it is not the legislative intention that every murder involving the use of a knife or other weapon to inflict fatal injury should normally fall within the 25 year starting point. Had that been the intention, it would have been a simple matter to follow the language of paragraph 5(2)(b) and substitute "a murder involving the use of a knife or other weapon". Therefore paragraph 5A does not provide an entirely comprehensive framework which governs the starting point for the assessment of the determinate term for murders committed with a knife or other weapon. Indeed the first requirement before it bites is the specific intention required by paragraph 5A(2) when the knife or other weapon is taken to the scene, itself a distinct intention from the intention required at the time when fatal injury was inflicted.

The primary practical difficulty however arises from the provision that the offender "took the knife or other weapon to the scene". Miss Wass Q.C. submitted that the purpose of the new provision is to deter the possession of knives in public (whether or not carried with murderous intent or with a victim in mind) and to underline the additional gravity of committing murder with a knife in those circumstances. In general this reflects the broad guidance already offered on this issue in R v M, AM and Kika, and we agree. However the language of paragraph 5A is not so limited. If a man makes up his mind to kill his partner and walks back to their home, and there picks up a knife in the kitchen and kills her with the knife, he will not have taken the knife to the scene. On the face of it this offence would not fall within paragraph 5A. If a man in exactly the same frame of mind walks home and buys a knife on the way and kills his partner in the kitchen in exactly the same circumstances, then on the face of it paragraph 5A would apply. We doubt whether anyone would believe that justice would be represented by the assessment of the starting point for respective minimum terms for each of these defendants at 15 years and 25 years respectively. The culpability levels are the same: the consequences are similarly catastrophic. Yet, unless examined in the context of the decisions of this court about the way in which the provisions of schedule 21 should be approached, a literal interpretation of paragraph 5A might produce this disparate result.

The second of these examples forcefully underlines that paragraph 5A is not confined to murders committed with the use of a knife which has been taken out onto and used on the streets. It does not follow that a murder committed with a knife in the offender's home, or for that matter in the victim's house, automatically falls outside the ambit of paragraph 5A.

Further problems arise in the context of what is meant by "the scene". If the victim is in the kitchen, and the defendant takes a knife from a drawer and kills him or her, for the purposes of paragraph 5A that knife was not taken "to the scene". If in the same example the kitchen is at one end of the living room with no partition between the two, the victim is in the living room and the defendant takes a knife from the kitchen drawer and kills her, then again for the purposes of paragraph 5A this knife was not "taken to the scene". The situation will be additionally complicated if one of the doors in the premises through which the assailant went with the knife had been open, or closed, or locked. The present group of cases demonstrates the difficulties."

27. It is instructive to examine the facts of the four cases with which this court was then concerned. Kelly took a knife from the kitchen of a house upstairs where the victim had locked himself into the bathroom. The defendant broke down the bathroom door and cut the victim's throat. This court found (at paragraph 21) that the knife had not been taken to the scene but that the minimum term of 25 years set by the trial judge was nevertheless fully justified.
28. Bowers had taken two kitchen knives out of his parents' house and run towards the victim who was on the pavement outside coming towards him and swinging a rounders bat. Bowers stabbed the victim with each of the knives. It was held, affirming the decision of the trial judge, that the knives had been taken to the scene (paragraph 27). The mitigating factors included the defendant's age (19 at the time of the offence), lack of premeditation and what the sentencing judge described as "a small degree of provocation". A sentence of 20 years was upheld in this court.
29. Balraj Singh lived in a bedsit above the factory where he worked. He took a knife from the bedsit downstairs to the factory where he stabbed the victim. This court held that the case was analogous to cases such as Bowers where the knife was taken out of the defendant's home into the street. The defendant was of previous good character. A minimum term of 20 years was upheld. Lord Judge CJ said that it could be seen "either as reflecting a lower starting point than 25 years or as making generous allowance for the appellant's personal mitigation".
30. Harding and others was a more complicated case involving several defendants. It is not necessary to set out all the details. The victim was killed in the bedroom of his home by Harding. Harding had armed himself with two knives: one was a combat knife brought to the scene by Roberts, the other knife came from the kitchen of the victim's home. Harding stabbed the victim fifteen times using both knives. The jury convicted Harding, Roberts and Harding's partner, Ms Robinson of murder. The trial judge found that Harding had known that Roberts was to bring the combat knife to the scene and this court held that "there was ample evidence of planning for this attack". It was irrelevant that it was Harding rather than Roberts who used the knife since "that is the very essence of joint enterprise" (paragraph 52).
31. We should refer, as the trial judge did, to two other authorities. In Folley [2013] EWCA Crim 396 the defendant took a kitchen knife from his flat and killed the victim on the landing outside the flat. This court upheld the finding of the trial judge that the knife had been taken to the scene and that a starting point of 25 years was therefore appropriate. In Senechko [2013] EWCA Crim 2308, on the other hand, the defendant took a kitchen knife from a flat to the balcony of the flat where he stabbed the victim in the neck. This court held that the trial judge's starting point of 15 years was "undoubtedly correct". The appropriate minimum term on the facts was held to be 18 years.
32. We consider that the following emerges from the cases cited to us:

(a) A knife taken from a kitchen to another part of the same flat or house, including a balcony (Senechko), will not normally be regarded as having been taken to the scene, even if a door is forced open (Kelly);

(b) Conversely, if the knife is taken out of the house or flat into the street (Bowers), or into another part of the premises (Balraj Singh), or on to a landing outside a flat (Folley), it will normally be regarded as having been taken to the scene.

(c) However, a starting point is not the same thing as a finishing point. The judgment in Kelly and others emphasises the importance, in cases of similar culpability, of avoiding major differences in sentence based on fine distinctions. As the Lord Chief Justice observed by way of example in the passage cited above, to make a distinction of ten years in the minimum term between the case of a man who kills his partner with a knife from the kitchen of their home and a man who kills his partner with a knife which he bought on the way home would not represent justice in anyone's assessment. If a case is only just within paragraph 5A, because a knife was taken from a kitchen and used to inflict a fatal wound a short distance outside the door of the flat or house, this principle may well lead to a minimum term of less than 25 years (Bowers, Balraj Singh).

The sentence in the present case

33. Passing sentence in the present case. Judge Gullick said:-

"…Having regard to the seriousness of this offence and in conjunction with the fact that a knife was taken to the scene, the starting point in your case is a minimum term of 25 years.

I regard the following as aggravating features in your case. Firstly, the downward chop to the head of Scott Stone with the knife was carried out by you after the fatal injury to his chest had been caused, producing a lengthy wound and underlying groove in the skull. Secondly, your previous convictions for violent offences over the last almost thirty years … although I remind myself that the last conviction recorded against you was in 2009. Thirdly, your many other convictions of offences for dishonesty, each of these many convictions is an aggravating feature in itself."

34. The judge went on to say that he regarded the following matters as mitigating features: an intention to cause serious bodily harm rather than to kill; a lack of premeditation; and the fact that the defendant acted "under a real sense of fear that violence was going to be done to [him] and reacted accordingly". Taking into account the aggravating and mitigating features, he imposed a minimum term of 22 years.
35. We agree with the judge that this case fell within paragraph 5A. We also consider, and Mr Hardyman realistically concedes, that the second attack with the knife plainly makes the case more serious than that of a defendant who takes a step or two out of his front door and strikes a single fatal blow.
36. With respect to the judge, however, we think that the appellant's convictions for offences of dishonesty were almost entirely immaterial; and even his record for offences of violence was of limited significance, given the long time since they were committed and their relatively minor nature.  He had a number of convictions for violence in the period 1978-96: none of these resulted in a sentence longer than the six months imprisonment he received for assault on the police in 1996. Since 1996 he had twice been convicted of threatening behaviour, receiving a community sentence in 1999 and a sentence of four weeks imprisonment (in respect of two incidents) in 2009; and conditionally discharged, also in 2009, for resisting or obstructing a constable in the execution of his duty.  All these convictions were adduced in evidence before the jury at his trial for murder, together with an admission that none of them involved the use of a knife or other weapon. Certainly he was not of good character; but these antecedents do not amount to significant aggravation in a case of murder.
37. We are conscious of the fact that the experienced sentencing judge, unlike ourselves, had heard the evidence at the trial. Nevertheless, taking into account his findings of lack of intention to kill, lack of premeditation and a real fear of violence, we consider that the minimum term of 22 years did not give adequate weight to these mitigating factors. We allow the appeal to the extent of quashing that minimum term and substituting one of 20 years.