England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		21 December 2017

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1. LORD JUSTICE HOLROYDE: In the spring of 2016 Mrs Tracy Wilkinson found Aaron Barley sleeping rough outside a supermarket in her home town. For convenience, and meaning no disrespect, we shall refer to him by his surname. Barley, then aged 23, had in fact recently been released from prison. Out of the kindness of her heart and her desire to help others, Mrs Wilkinson took him to her family home and gave him a meal.
2. The Wilkinson family at that time comprised Mrs Wilkinson; her husband, Peter; their daughter Lydia, then aged 18 and a university student; and their son Pierce, then aged 13. They treated Barley with great kindness and generosity. They provided him with money, meals and, at times, accommodation. They initially paid him for odd jobs around their home, where he became a regular visitor, and then found him employment. Barley told Mr Wilkinson that he just wanted somebody to give him a chance. The Wilkinsons certainly did that. But about a year later Barley brutally murdered Mrs Wilkinson and young Pierce and attempted to murder Mr Wilkinson, upon whom he inflicted serious injuries.
3. For his crimes of murder and attempted murder Barley was on 4th October 2017, in the Crown Court at Birmingham, sentenced to life imprisonment. The learned judge ordered that he serve a minimum term of 30 years.
4. Her Majesty's Solicitor General now applies, pursuant to section 36 of the Criminal Justice Act 1988, for leave to refer that sentence to this court as unduly lenient. We grant leave.
5. We summarise the grim facts of the case to the extent to which it is necessary to do so for the purposes of this hearing. Barley experienced an unhappy childhood. His natural parents died when he was a child. He suffered sexual and physical abuse. He was brought up by foster parents and at times in care homes. He has been assessed as being of normal intelligence, but his education was badly disrupted. Expert evidence from a number of psychiatrists and a neuropsychologist was agreed that he suffers from an emotional unstable personality disorder, probably explained by the unsettled and traumatic circumstances of his childhood, causing him to be prone to what have been described as "behavioural explosions" when he feels he is slighted or abandoned. His medical history shows that he was diagnosed with attention deficit hyperactivity disorder and prescribed medication when he was only about 8 or 9 years old. At other times in his young life he had been diagnosed with post-traumatic stress disorder, depression and latterly the personality disorder. He had been prescribed over the years various forms of anti-psychotic, mood-stabilising and antidepressant medication.
6. Barley had previously been convicted on 14 occasions of a total of 21 offences. The offences involved both dishonesty and violence. Some as a juvenile offender resulted in custodial sentences. His most serious previous offence, and his first sentence in an adult court, was an offence contrary to section 20 of the Offences Against the Person Act 1861, against a former partner, for which in August 2012 he was sentenced to 44 months' imprisonment. We do not know the details of that offence but we can and do infer from the sentence of 44 months, following a guilty plea to an offence which carries a maximum of 5 years' imprisonment, that it must have been a serious example of its kind. It was after his release from that sentence that he was taken in and helped by the Wilkinsons.
7. With the assistance of the Wilkinsons, Barley for a time lived at a hostel, but he ate each evening at the Wilkinsons' home. Mr Wilkinson then assisted him to obtain full-time employment and helped him find accommodation for which Barley was to pay out of his wages. After a time, however, Barley stopped attending work. He fell into dispute with his landlord and was evicted from his flat. His employers tried to assist him but he then left his job without notice.
8. In October 2016 Barley was arrested and charged with offences of theft and assaulting a police officer. He was bailed by the police. He went to the Wilkinsons' house, where he was found asleep on their drive. Once again they helped him. They allowed him to live in their home for 2 weeks before he found other work and a new flat. But again, he soon stopped turning in for work and was eventually sacked. He ceased contact with the Wilkinsons, but it seems that he began to socialise and drink in the area near their home.
9. About a week before the murders, Mrs Wilkinson reported to a friend that she had seen Barley and another man looking over her fence and that Barley had made death threats to her.
10. In the early hours of 30th March 2017 Barley gained entry to the garden of the Wilkinsons' home. Footage later recovered from CCTV cameras showed that he moved around the garden and around the Wilkinsons' parked cars in a manner which made it obvious that he was trying not to be seen. He remained there for several hours, during which time he removed a light coloured jacket which he had been wearing. That left him in dark clothing. He covered his trainers, which were of a bright colour, with dark coloured socks. He had a balaclava or hat.
11. During the time he was lurking in the garden Barley went into a garden shed. That was at about 00.44 in the morning. He emerged armed with a hammer. An hour or so later he tried unsuccessfully to get into the house through a window. He then hid behind bushes until at about 7.30 that morning he saw Mr Wilkinson taking the dog out for the regular morning walk. It is important to note that in the hours which had passed up until that point the CCTV footage shows that Barley had been awake and moving around. This is not a case of his having simply fallen asleep and eventually woken up in the morning.
12. When Mr Wilkinson left, Barley went into the house and armed himself with one or more knives from the kitchen. In her sentencing remarks the learned judge summarised what then happened in the following terms:

"Once he had gone out, you entered the kitchen and removed at least one knife from the kitchen. You went upstairs and stabbed both Mrs Wilkinson and Pierce multiple times in what were violent and sustained assaults involving severe force. The stabbing injuries led to the collapse of Pierce's lungs and one wound almost divided his spinal cord.

Mrs Wilkinson has at least 17 stab wounds consistent with a violent assault, some penetrating a depth of 10 to 15 centimetres. You stabbed her through the bedding and the dirty footprints that you left on the sheets suggest that you climbed on the bed to carry out your attack. You abandoned one knife on her bed. I have no doubt that you intended kill each of them.

When Mr Wilkinson returned just before 8 o'clock in the morning and went to open the kitchen door he was confronted by you, dressed in black, wearing gloves and a balaclava. You stabbed and slashed at him too with a knife. Some of the attack was again caught on the security camera footage as you drove Mr Wilkinson into the garden, your right arm clearly raised above you, knife in hand. As he pleaded with you, you responded, 'Die, you bastard'.

For whatever reason, you then suddenly left, driving off in the Land Rover Discovery parked on the front driveway."

13. The learned judge went on to record that Mrs Wilson had managed to telephone the police. Emergency services attended. Mrs Wilkinson was found dead. Pierce was alive, but it was not possible to save his life. Mr Wilkinson, for his part, underwent surgery for two incised wounds in the abdomen and two in the bowel. He spent a week in critical care in hospital, suffering enormous pain, and received multiple stitches. As at the time of sentencing, Mr Wilkinson had only recently been able to return to part-time work. He is left with permanent scarring.
14. Barley drove away from the house in one of the Wilkinsons' cars. He drove in a dangerous manner before eventually crashing and being arrested. One of the knives which he had used in his attacks was found in the front footwell of that car.
15. On arrest Barley showed no remorse. On the contrary, he said that he was pleased that he had got two victims but was upset that he had not got Mr Wilkinson. He threatened to do the same to the police.
16. He pleaded guilty at an early stage to the attempted murder of Mr Wilkinson. He always accepted that he had killed Mrs Wilkinson and Pierce Wilkinson, but the expert evidence to which we have referred was properly obtained in order to establish whether any partial defence was available to the two charges of murder. When the expert evidence concluded that no such defence was available, Barley promptly pleaded guilty to those charges. The learned judge concluded that he was entitled to receive credit for those guilty pleas on the basis that they had been entered at the first reasonable opportunity.
17. The only apparent explanation for these savage attacks, each of which was intended to kill, is that Barley, who has a history of blaming others for his misfortunes, for some reason felt that he had been let down by the Wilkinsons, and by Mr Wilkinson in particular. It is acknowledged by counsel on Barley's behalf that there was no objective basis for any such belief.
18. Thus on that morning Barley ended two lives, but he blighted many more. In the very moving personal impact statements which we have read, Mr Wilkinson, Lydia Wilkinson and other members of their extended family have set out very clearly the anguish which they have suffered and will continue to suffer. We quote only very brief extracts. Mr Wilkinson expresses in his statement his uncontrollable emotion due to the "vile, callous, barbaric and cowardly act" of Barley. He says: "We cared for Aaron, welcomed him and we showed him love and respect which he had never received anywhere else. The repayment was for him to destroy my family for no reason whatsoever". Lydia Wilkinson, away at university on the morning of the killings, received the dreadful news that her mother and brother had been murdered and that her father had been taken to hospital in a critical condition. She travelled home not knowing whether her father would live. It fell to her to carry out the awful task of identifying the deceased. Unsurprisingly she describes that in her statement as a memory which will stay with her forever. In the statement, which she herself read in the court below, she says that grief has ruined her. Another member of the family with 30 years' experience as a social worker describes the crimes as having caused her to lose her faith in humanity. Mr Wilkinson's father speaks of the deep distress suffered by him and his wife.
19. We have very well in mind those statements, and the knowledge that the authors of them are very far from being the only persons harmed by Barley's crimes. We offer our sympathy to the bereaved. We are sure they will understand that no sentence of the court ever can be, or is intended to be, in any sense a valuation either of the lives of the deceased or of the suffering of those who have been bereaved.
20. The learned judge clearly took great care in considering her sentences and she set out her reasoning with clarity and compassion in her detailed sentencing remarks. She rightly identified a number of serious aggravating features. First, the very significant degree of planning and premeditation. At page 5D she said:

"You broke into the grounds of the house in the very early hours. You emerged from the garden in black disguise even covering your coloured trainers with black socks. You wore gloves and a balaclava. You took care to remove your cream jacket and hide it under a car. You lay in wait for hours. It has been suggested on your behalf that your killing of Mrs Wilkinson and Pierce was opportunistic. You have said in the past that you only intended to kill Mr Wilkinson at the outset and decided to kill Mrs Wilkinson and Pierce only when you were apprehended or startled in the house by someone upstairs and you panicked. I am sure that either by the time you walked so purposefully into the house as can be seen on the footage, or at the latest after you had armed yourself and were standing in the kitchen you had formed the intention to kill Mrs Wilkinson and Pierce."

Secondly, the judge referred to Barley's abuse of his knowledge of the Wilkinson's family home, a knowledge which he had only gained because of their extraordinary kindness and generosity to him.

Thirdly, she pointed to Barley's lack of remorse and to his expression of regret that he had not also killed Mr Wilkinson. She said: "You knew that you were destroying the family, it was what you intended".

21. Fourthly, the learned judge referred to the previous convictions.
22. As to mitigating factors, the learned judge identified Barley's relatively young age and the badly disrupted childhood and childhood trauma which had led to the personality disorder to which we have referred.
23. The learned judge considered, as she was required to do, the provisions of schedule 21 to the Criminal Justice Act 2003. She said that she had considered carefully, by reference to reported case law, whether it was necessary to make a whole life order: that is, an order for life imprisonment with a direction to the effect that Barley should never be released. She said of this issue at page 6H:

"The seriousness of these offences involving two murders and an associated attempted murder, with multiple aggravating features that I have identified, could be said to be exceptionally high. However, principally because of your youth, I am not satisfied the considerations of just punishment and deterrence require a whole life order. The correct starting point in determining the minimum term, not to be applied mechanistically, is thirty years. I bear in mind the principle of totality and the need to pass sentences which reflect the seriousness of the offences and the overall criminality of your offending the round.

Having regard to your overall offending, all the aggravating features and the mitigating features in your case including your youth and background, a minimum term of thirty-five years is in my judgment appropriate before giving credit for your guilty pleas. After such credit of five years the minimum term in each case is therefore thirty years."

The learned judge went on to make the appropriate allowance for the period of time which Barley had spent remanded in custody before sentence.

24. In relation to the offence of the attempted murder of Mr Wilkinson, the learned judge rightly placed it in the highest category of seriousness under the relevant guideline. For such an offence, standing alone, a determinate sentence of the order of 30 years' imprisonment would be appropriate. She found, unsurprisingly, that Barley is a dangerous offender as that term is defined for sentencing purposes. She imposed a discretionary life sentence with a minimum term of 10 years, again subject to the appropriate reduction for time spent on remand in custody. The learned judge took care to explain the effect of her sentencing.
25. The Solicitor General submits that this was a case in which just punishment and retribution required the imposition of a whole life order. He makes that submission in relation to all three offences, acknowledging that the statutory provisions to which we shall shortly come relate specifically to cases of a mandatory sentence of life imprisonment for murder, but submitting that by parity of reasoning a similar result should be reached in the case of the charge of attempted murder. As a secondary and alternative submission, in case his first submission has not been accepted by this court, the Solicitor General submits that in all the circumstances of this case a minimum term substantially in excess of 30 years was necessary to reflect the scale of the harm caused and the level of Barley's culpability.
26. In addition to those points specifically mentioned by the learned judge in the passage which we have just quoted, the Solicitor General points to the following aggravating features. First, the fact that the murders involved an invasion of the Wilkinsons' family home coupled with a profound breach of trust in committing those crimes in the very home where he had been cared for by his victims. Secondly, the particularly brutal and savage nature of the stabbings. Thirdly, and associated with the point just mentioned, the terror which the victims must have experienced. The Solicitor General points out that as a matter of common sense one of the two victims of murder must have been aware of the attack upon the other. Next, the Solicitor General points to the fact that one of the victims of murder was a child aged only 13. Next, he points to the impact, not only on the immediate family, but on the extended family, the many friends of the deceased and the local community generally.
27. Above all the Solicitor General points to the combined gravity of the three offences taken together. All three offences would inevitably be dealt with by concurrent sentences. It was therefore necessary for the minimum term on the murder charges properly to reflect the overall gravity of the offending. The Solicitor General submits, with respect to the learned judge, that she did not give sufficient weight to those matters.
28. In his written response and in the oral submissions which he has made today on behalf of Barley, Mr Hankin QC concedes that the learned judge fell into error in imposing a minimum term which was unduly lenient in its length. He argues however that she was correct to conclude that in all the circumstances a whole life order was not required. He makes the important concession which he does, because he accepts the argument of the Solicitor General that the minimum term imposed failed to give sufficient weight to the combination of offences and the combined gravity of them. As to the issue of whether a whole life order was called for, he makes these submissions. First, by reference to case law, to which we shall shortly come, he submits that this could not be regarded even as a borderline case, and therefore its seriousness was not so exceptionally high as to require a sentence of imprisonment for life. Secondly, accepting that the offences were brutal in their execution but not accepting the submission of the Solicitor General that they could properly be described as "sadistic", Mr Hankin submits it was nonetheless too great a step to regard those offences as calling for Barley to be imprisoned with no realistic prospect of release at any time in his life. Next, he argues that the case does not fall squarely into the terms of relevant provisions of schedule 21, in particular because the initial intention of Barley may have been limited to killing Mr Wilkinson, so that, submits Mr Hankin, any real planning and premeditation was directed towards the associated offence of attempted murder rather than the offences of murder.
29. Next, Mr Hankin points to the young age of Barley, which he submits is important in two respects. First, because the impact of a whole life order will be so much more severe for a young man of that age than for an older offender. Secondly, because of the need for the courts, when dealing with comparatively young offenders, always to take into account the possibility of a lesser level of maturity, insight and understanding than in the case of a mature older adult.
30. Next, Mr Hankin points to the mental health issues which we have summarised. Lastly, he urges the court to take into account the fact that admissions were made and guilty pleas entered. He readily and properly acknowledges that this is a dreadful case. But, he submits, the court must properly set it in the context of other yet more serious offences which are on occasions seen.
31. We are grateful to all counsel for their extremely helpful submissions. We have reflected upon them.
32. The sentence for murder is fixed by law. It is one of life imprisonment. The effect of section 269 of the Criminal Justice Act 2003 is that a court when imposing a mandatory life sentence for murder must specify the minimum term which must elapse before the early release provisions, in other words the provisions relating to release on licence, can apply. The minimum term is the period which the court considers appropriate, taking into account the seriousness of the offence or offences.
33. By section 269(4):

"(4) If the offender was 21 or over when he committed the offence and the court is of the opinion that, because of the seriousness of the offence, or of the combination of the offence and one or more offences associated with it, no order should be made under subsection (2), the court must order that the early release provisions are not to apply to the offender."

34. Section 269(5) is the statutory provision which requires the court to have regard in determining the minimum term to schedule 21 to the Act. That schedule provides three different starting points. By paragraph 4(1):

"4(1) If—

(a) the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is exceptionally high, and

(b) the offender was aged 21 or over when he committed the offence.

the appropriate starting point is a whole life order."

35. In paragraph 4(2) examples are given of cases which would normally fall within that provision. Of relevance for this case, and relied upon by the Solicitor General, is paragraph 2A(i):

"The murder of two or more persons where each murder involves ... a substantial degree of premeditation or planning."

By paragraph 5(1):

"5(1)

If—

(a) the case does not fall within paragraph 4(1) but the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is particularly high, and

(b) the offender was aged 18 or over when he committed the offence.

the appropriate starting point, in determining the minimum term, is 30 years."

36. Again, examples are given. They include, in paragraph 5(2)(f), "the murder of two or more persons".
37. For an adult offender whose case does not fall within either of the paragraphs the appropriate starting point is one of 15 years.
38. Unless a whole life order is imposed the court, having selected the appropriate starting point, should then take into account all relevant aggravating and mitigating factors, in so far as they have not already been taken into account in selecting the starting point, and make an appropriate adjustment to the starting point, whether upward or downwards.
39. We must pause to mention important features of the minimum term. First, it is precisely what it says: the minimum number of years which must pass before the murderer can even be considered for release on licence. Secondly, even when the minimum term expires, release on licence does not follow either immediately or as a matter of course. The Parole Board must make a careful assessment of whether the protection of the public requires the continued detention of the murderer. He will only be released when the Parole Board is satisfied that it is safe to do so. Thus a prisoner may be detained long beyond the expiration of his minimum term and perhaps even for the rest of his life. Thirdly, if and when a murderer is released, he remains subject to the conditions of his licence for life. If he reoffends he may at any time be recalled to continue serving his life sentence.
40. It is these features of the life sentence which provide the public with the necessary protection for the future. Thus the minimum term is intended to be the appropriate term by way of punishment and retribution. It is not necessary for a court to increase that term in order to protect the public.
41. In R v Jones and Ors [2006] 2 Cr App R(S) 19, at paragraph 10 the Lord Chief Justice said:

"A whole life order should be imposed where the seriousness of the offending is so exceptionally high that just punishment requires the offender to be kept in prison for the rest of his or her life. Often, perhaps usually, where such an order is called for the case will not be on the borderline. The facts of the case, considered as a whole, will leave the judge in no doubt that the offender must be kept in prison for the rest of his or her life. Indeed if the judge is in doubt, this may well be an indication that a finite minimum term which leaves open the possibility that the offender may be released for final years of his or her life is the appropriate disposal. To be imprisoned for a finite period of 30 years or more is a very severe penalty. If the case includes one or more of the factors set out in paragraph 4(2) it is likely to be a case that calls for a whole life order, but the judge must consider all the material facts before concluding that a very lengthy finite term will not be a sufficiently severe penalty."

42. Then at paragraph 15 the court went on to say that the court should consider the fact that an offender has pleaded guilty to murder when deciding whether it is appropriate to order a whole life term. Mr Hankin, in his submissions, relies upon those passages.
43. In R v Oakes and Ors [2013] QB 979, a constitution of this court emphasised that the decision as to whether a whole life order is necessary is a discretionary aspect of the judge's sentencing decision: see paragraph 12. Later in the judgment, the court referred to the frequently-expressed principle that a whole life order will very rarely be made and remains a sentence of last resort for cases of the most extreme gravity. At paragraph 29 the Lord Chief Justice put it in this way, that a whole life order -

"is reserved for the few exceptionally serious offences in which, after reflecting on all the features of aggravation and mitigation, the judge is satisfied that the element of just punishment and retribution requires the imposition of a whole life order. If that conclusion is justified, the whole life order is appropriate: but only then. It is not a mandatory or automatic or minimum sentence."

44. These principles were reiterated by the then Lord Chief Justice in the subsequent cases of R v Reynolds [2015] 1 Cr App R(S) 24 and R v Simpson-Kent [2017] EWCA Crim 990. It is because of the need to give close attention to the precise circumstances of the individual case that we have regrettably found it necessary to recite distressing details of the facts of this case.
45. Applying the principles which we have set out to the present case, the learned judge below concluded that the circumstances did not require imposition of a whole life order. Her decision does not of course mean that these were anything other than truly dreadful crimes. It was a conclusion that this was not one of the rare and exceptional cases in which such an order was necessary. We have no doubt that she was entitled to come to that conclusion. Having reflected carefully on the matter we are unable to accept the Solicitor General's submission that the sentences were unduly lenient because the only sentence properly open to the judge was a whole life order.
46. We should add for completeness that even if we had been persuaded of that argument in relation to the counts of murder, we would not have accepted the submission that a similar sentence was necessary on the charge of attempted murder, as to which, in our view, rather different considerations would apply.
47. As to the length of the minimum term, we think that the learned judge was correct in all the circumstances of the case to allow the full credit for the guilty pleas which is permissible. That credit is limited to 5 years. The issue accordingly is whether the minimum term of 35 years before that deduction was made was unduly lenient.
48. We are persuaded that it was. In a difficult sentencing exercise, we are persuaded that the learned judge did fall into error. First, we take the view that she should have given even more weight than she did to the many and grave aggravating features, including not only those specifically mentioned in the sentencing remarks, but also the other points identified by the Solicitor General to which we have referred. We do not accept the submission that these crimes, terrible as they were, are properly to be described as "sadistic"; but the brutality of the stabbings and the terror which the victims must have felt were very grave aggravating features.
49. The element of planning and premeditation was, in our judgment, very strong. Even if it be the case, as to which we make no finding, that Barley had not always planned to murder all three of his victims, he certainly had that intention by the time he entered the house and selected one or more knives suitable for his dreadful purpose. But even looking at the matter on the basis on which Mr Hankin invites us to do, we see no force in his argument that the planning and premeditation was in reality directed to the associated offence. We can see that an argument along those lines might carry some weight in a very different case where, for example, a meticulously-planned high value burglary was chanced upon by a night watchman, who was there and then killed. But in this case - whether he always intended to kill all three, or whether for some of the time he intended only to kill Mr Wilkinson - Barley was lying in wait in the garden with murderous intent. His planning and preparation were directed to carrying out murder. In those circumstances, we are unable to accept this part of Mr Hankin's submissions.
50. As to mitigation, the learned judge correctly identified the factors. However, the comparatively young age of the offender was a feature to which, as it seems to us, the learned judge had already given full weight when she made her decision not to impose a whole life order. It was the factor which she specifically mentioned when explaining that decision. It follows, in our judgment, that the only significant features of mitigation, to be set against the aggravating features when determining the minimum term, were the limited extent to which Barley's personality disorder lessoned his responsibility and culpability for the offences, and the fact that he has always admitted responsibility for the deaths and the attempted murder and pleaded guilty to each other offence at the first reasonable opportunity.
51. Those are undoubtedly factors properly to be weighed in the balance. But in our judgment, they could carry only limited weight. First, whatever his psychological problems, Barley was able to and did plan his attack, equip himself carefully for it and carry it out mercilessly. Secondly, his initial acceptance of responsibility for the killings was in the context of boasting and expressing regret that he had not done more than he did.
52. Weighing those factors in the balance, we accept the Solicitor General's submission that particular weight must here be given to the combination of offending, including as it did the murder of one adult, the murder of a child and the determined attempt to murder another adult. We are driven to the conclusion that the minimum term was unduly lenient. Having considered all the relevant circumstances we conclude that, before giving appropriate credit for the guilty pleas, the minimum term should have been one of 40 years. It follows that when credit is appropriately given, the sentences for murder should have carried a minimum term of 35 years less the days spent on remand.
53. Accordingly, we allow this Reference. We quash the sentences imposed below in relation to counts 1 and 2, and substitute for them increased sentences of life imprisonment with a minimum term of 34 years and 178 days, that period being calculated from the date when sentence was passed in the court below. We are not persuaded that there is any ground to increase the sentence imposed on count 3, which will accordingly remain as passed below.
54. LORD JUSTICE HOLROYDE: Mr Solicitor and Mr Hankin, we are very grateful to you both and those assisting you for your submissions. Is there any matter that remains to be dealt with?
55. THE SOLICITOR GENERAL: No. Thank you, my Lord.
56. LORD JUSTICE HOLROYDE: We would not wish to leave the case without expressing our admiration for the manner in which those to whom the case means so much have listened to this lengthy judgment. We are very grateful to you.