England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
(HIS HONOUR JUDGE LICKLEY KC] [T20227453]

		Royal Courts of Justice The Strand London LC2A 2LL
		18 September 2024

MRS JUSTICE THORNTON:

Introduction

1. On 3 April 2023, in the Central Criminal Court, the appellant pleaded guilty to the murder of Ailish Walsh who was aged 28 when she died on 15 December 2022.
2. On 24 August 2023 the appellant was sentenced to imprisonment for life, with a minimum term of 27 years, less 247 days spent in custody on remand. The sentence, we observe in passing, should have been expressed as a minimum term of 26 years 117 days. We were told today that the time spent on remand was incorrectly stated as 247 days, when it was in fact 248 days and has been corrected under the slip rule.
3. The appellant now appeals against sentence by leave of the single judge.

The Facts

4. The appellant and Miss Walsh had been in a relationship since spring 2021 and resided together. At the time of her death Miss Walsh was 22 weeks pregnant with the appellant's child.
5. On 15 December 2022, at approximately 3 pm, Miss Walsh messaged the appellant, asking him about another woman and accusing him of lying. She asked the appellant to leave the flat, before she left the flat herself.
6. Between approximately 5.30 pm and about 7.20 pm she did not respond to the appellant's messages and calls. At 8.36 pm CCTV footage shows the appellant and Miss Walsh together entering the premises where they resided. At 9.06 pm a friend of Miss Walsh's father, Miss Mannion, received a message from Miss Walsh saying that the appellant was taking drugs and she was trying to get him out of the flat.
7. Having left the flat briefly, the appellant returned. At 9.09 pm Miss Mannion called Miss Walsh. During the call Miss Mannion could hear muffled noise and a commotion. She could hear Miss Walsh screaming and then a breathless voice, which she thought was that of the appellant, saying something like "You can't do that to me. I won't let you do that to me". The phone then cut off.
8. CCTV footage shows that at 9.14 pm the appellant left the premises, having changed his clothes. He did not return. Messages were subsequently sent on Miss Walsh's mobile phone to Miss Mannion to the effect that there was no need for anyone to go to the flat because Miss Walsh and the appellant were sorting things out. Those messages were sent by the appellant, pretending to be Miss Walsh.
9. At 10.02 pm Miss Walsh's father and his friend arrived at the flat to find Miss Walsh's body in the bedroom with a 15 kilogram dumbbell on her right leg and a pair of scissors on the floor. Her face was badly injured, swollen and bloody. There was blood all over the carpet. Paramedics attended. Miss Walsh was declared dead at 11.02 pm.
10. The appellant was arrested later that evening. He was wearing the same clothing he had been seen wearing on CCTV when he left the flat with Miss Walsh lying fatally injured. Whilst being conveyed to the police station the appellant said that he had been taking cocaine, cannabis and alcohol that night.
11. The appellant subsequently pleaded guilty to the murder of Miss Walsh, although not at the first opportunity.
12. Prior to sentencing the appellant, the judge heard evidence from the forensic consultant pathologist, Dr Cieka who examined Miss Walsh's body on 17 December 2022.

The Evidence of the Forensic Pathologist

13. Dr Cieka's evidence was described by the sentencing judge in his sentencing remarks as a very important aspect of the evidence in the case. It provided not only an explanation for why Miss Walsh had died, but an interpretation of the nature and extent of the appellant's assault upon her and the multiple injuries caused.
14. The injuries to Miss Walsh included 46 stab wounds and four incisions. The sharp force injuries were grouped in several areas, consistent with infliction by the pair of scissors recovered from the scene. 30 of the stab wounds and all the incisions were to the face and front neck area. There was a single stab wound to the abdomen and six to the genital area. A stab wound to the left jugular vein had divided the vein and would have led to blood loss, cardiac arrest, unconsciousness and rapid death within minutes. There were also blunt force injuries which were consistent with being inflicted by the 15 kilogram dumbbell found with Miss Walsh's body.
15. The foetus was normally formed. Its gestational age was estimated at 22 weeks and six days. It was highly unlikely that the foetus could have survived independently outside the womb.

The Sentencing Remarks

16. In his sentencing remarks, the judge set out the facts. He found that from around 9.09 pm and 9.14 pm on 15 December 2022 the appellant had carried out a ferocious and extremely violent attack upon Miss Walsh with at least two weapons. He left her to die. He made no effort to contact emergency services.
17. The judge summarised the medical evidence given by Dr Cieka and concluded that the stab and incised wounds were deliberate and forceful acts directed at particular parts of the deceased's body. He found that the appellant had targeted the deceased's face. The wound to her abdomen was deliberate and directed towards the foetus.
18. The judge rejected the submission that the appellant could not have been responsible for or intended the death of the baby, as the baby would not have survived independently from the mother. The judge found that the appellant was directly responsible for the death of the foetus as he had murdered the mother. In murdering her, the appellant knew full that the foetus would not have survived, and therefore he intended the foetus to die with her mother. The stab wound to the abdomen was deep and towards where the foetus was positioned. In that moment the appellant clearly intended fatally to injure the foetus, or at the very least to cause it really serious bodily harm.
19. The judge concluded that the appellant has subjected the deceased to a ferocious, brutal and savage assault, using weapons and targeting parts of her body and areas that would have caused significant pain and discomfort. The appellant had intended to disfigure Miss Walsh. The judge found that the attack thus had elements that were sadistic in nature, and there was a distinct possibility that Miss Walsh was aware of what was being done to her. He concluded that the appellant had taken drugs in the lead up to the murder. He observed that the appellant had two previous offences of violence, where the appellant caused injury, against females (his sister and mother). He attacked his mother by hitting her repeatedly to the head and neck with a metal pole, for which he was sentenced to 12 months' imprisonment.
20. Having directed himself to the need to determine the correct starting point, before adjusting for aggravating and mitigating features, the judge identified the following aggravating factors:

a) planning (not to a minor degree);

b) abuse of trust (this was an extreme example of domestic abuse);

c) mental and physical suffering caused before death (there were elements of sadistic behaviour in the targeting of the deceased's face, and sexual elements in the stabbing of the vaginal area;

d) the deliberate and intended termination of the pregnancy;

e) the use of weapons (scissors and a dumbbell);

f) the appellant was under the influence of drugs at the time of the offence;

g) the attack was ferocious, targeting the face, abdomen and genital areas; there was gratuitous violence;

h) the appellant took Miss Walsh's phone to send messages to divert attention; and

i) his previous convictions demonstrated a history of violence to women.

21. The judge concluded that these factors aggravated matters to a very significant degree.
22. The judge considered that there were no mitigating factors: he rejected the submission that the appellant did not intend to kill; the extent and nature of Miss Walsh's injuries demonstrated an intention; there was some premeditation; and he rejected the suggestion that the appellant was remorseful.
23. The judge concluded that the combination of the factors he had identified made the offence very serious. He assessed culpability as very high. In his judgment, if a starting point of 15 years was adopted, the combined effect of the aggravating features of the case required a very significant and substantial upward movement from that starting point. By that he said that he meant an upward adjustment to, or close to, the next relevant category set out in paragraph 3 of Schedule 21 to the Sentencing Act 2020.
24. That said, in his judgment the combination of the many, very serious aggravating factors meant that this case should be categorised as one where the seriousness of the offence was particularly high. In coming to that conclusion, the judge stated that the aggravating factors identified did not require him to make any further upward adjustment. The minimum term starting point was, therefore, 30 years' imprisonment. There were no significant mitigation factors to reduce that starting point. There would be a reduction for three years for the guilty plea. Accordingly, the minimum term would be 27 years. The appellant had spent 247 (we now know it to be 248) days on remand in custody, and that period was to be deducted from the minimum term.

The Grounds of Appeal

25. The following grounds of appeal are advanced before us:

1. The judge erred in finding that the appellant had an intention to kill the foetus;

2. The judge erred in finding that the offence was aggravated by a significant degree of planning and/or preparation;

3. The judge erred in classifying the seriousness as particularly high by finding that the offending was sadistic and sexual in nature, which resulted in a starting point of 30 years; and

4. The judge erred in not reducing the sentence for remorse.

Analysis

26. We begin our analysis of the sentence by observing that the Crown Court sentenced the appellant without a pre-sentence report. In our view, a pre-sentence report is not necessary.
27. As the sentencing judge directed himself, pursuant to section 322 (2) and (3) of the Sentencing Act 2020, when considering the seriousness of the offence when determining the minimum term, the sentencing judge must have regard to, first, the general principles set out in Schedule 21, and to any sentencing guidelines relating to offences in general which are relevant to the case and are not incompatible with the provisions of Schedule 21.
28. The judge identified the relevant guidelines as the general guidance on overarching principles, and the domestic abuse definitive sentencing guideline. He correctly identified that the selection of the starting point and the identification of relevant aggravating and mitigating features were matters for him: see R v Brooks [2023] EWCA Crim 544. He was not bound by the submissions of the parties in this respect. He was also correct that under paragraph 3 of Schedule 21 the test as to whether the seriousness of the offence is particularly high is not whether one of the categories of case in subparagraphs (2)(a) to (h) applies, but rather whether the seriousness of the case is in all the circumstances "particularly high". It is therefore open to a judge to adopt a 30 year starting point, even though neither of the paragraphs in subparagraph (2) applies.
29. All that said, however, the categories of case listed in subparagraph (2)(a) to (i) indicate that Parliament has set a high bar for a finding of "particularly high" seriousness of offending. We bear in mind in this regard that paragraph 8 of Schedule 21 provides that detailed consideration of aggravating features may result in a minimum term of any length, whatever the starting point. As applied to the present case, that paragraph has the effect that the 15 year starting point can be increased to any length.
30. Accordingly, we express the view that when considering whether a case falls within the scope of paragraph 3 of Schedule 21, it is appropriate to consider whether the circumstances of the case, though not within any of the specific categories or descriptors in subparagraph (2), are nonetheless of commensurate seriousness with those categories.
31. The grounds of appeal and the submissions advanced before us today contend that the judge erred in finding that the criteria in paragraph 3(e) applied to the present case, namely, a murder involving sexual or sadistic conduct.

We do not read the judge's sentencing remarks as a finding that the paragraph 3(e) category of case applied. This is because the judge referred to elements of sexual of sadistic conduct in the context of finding there to have been physical or mental suffering before death. However, for the avoidance of doubt, applying the test in R v Bonellie [2008] EWCA Crim 1417, which was cited to us, we do not think that there was sufficient evidence to conclude that the murder involved an enhanced pleasure in the infliction of pain. The facts of this case are very different from R v Khan [2021] EWCA Crim 428, where the Court of Appeal accepted that the death was accompanied by sadistic conduct. Nor was the death of the victim sexual in nature, or accompanied by sexual activity that increased the ordeal: see R v Walker [2007] EWCA Crim 2631.

32. The judge was entitled to find that there were many very serious aggravating features of this case. In our view, he was entitled to make the findings he did as to the aggravating features, which he sets out on page 11A to F of his sentencing remarks, which included that there was planning and not to a minor degree, albeit not significant.
33. It was, as the judge said, an extreme case of domestic abuse with very considerable pain and suffering inflicted before death. There was a clear intention to kill Miss Walsh, and the judge was entitled to infer that the appellant also intended to kill the foetus The judge was also entitled to reject on the evidence that was before him, and is before us, the appellant's expression of remorse and any other mitigation. The judge came to the view that the combination of aggravating features justified a 30 year starting point.
34. Having carefully considered the factors in question, we have come to the view that the present case falls just below the level of paragraph 3 of Schedule 21. We agree, however, with the judge when he said that if a starting point of 15 years was adopted, the combined effect of the aggravating features of this case required a very significant and substantial upward movement from that starting point.
35. It follows that we reject most of the grounds of appeal advanced before us. However, we allow the appeal on the basis that the starting point should have been 15 years, to be increased very substantially. In our view, the starting point of 15 years should have ben increased to 28 years. Allowing ten per cent for the guilty plea, as the sentencing judge did, and rounding in the usual way in the appellant's favour, this reduces to 25 years, from which 248 days should be deducted.

Decision

36. We therefore allow the appeal. We quash the sentence imposed below and substitute for it a sentence of life imprisonment, with a minimum term of 24 years and 118 days.
___________________________