Michael James Brennan v The Crown
| Jurisdiction | England & Wales |
| Judge | Lord Justice Davis,Lady Justice Rafferty,Mrs Justice Elisabeth Laing,Lord Justice Jackson,MR JUSTICE KING |
| Judgment Date | 19 June 2015 |
| Neutral Citation | [2014] EWCA Crim 2422,[2014] EWCA Crim 2387,[2014] EWCA Crim 78,[2014] EWCA Crim 1400 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | PTA/8/2013, 1/2014, 2/2014, 4/2014,No: 2014/1425/B5,No: 201304921 A6,No. 2007/00188/A3,Case No: 201401425B5 |
[2014] EWCA Crim 1400
Lady Justice Rafferty DBE
Mrs Justice Elisabeth Laing DBE
and
Mr Justice William Davis
No. 2007/00188/A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Miss F Krause appeared on behalf of the Applicant
Friday 27th June 2014
I shall ask Mrs Justice Elisabeth Laing to give the judgment of the court.
This is a renewed application for leave to appeal against sentence following refusal by the single judge. The applicant also applies for an extension of time of seven years and two months. Counsel appears on his behalf pro bono and we are grateful to her for that.
On 28 th February 2006 in the Crown Court at Manchester the applicant pleaded guilty to escape, contrary to common law. On 8 th September 2006 the applicant was convicted on a separate indictment of attempted murder. On 12 th December 2006 the court imposed on him a sentence of imprisonment for public protection, with a minimum term of nine years for the attempted murder, and a concurrent sentence of four years' imprisonment for the escape.
His co-defendant, Leanne Murphy, was convicted after trial and was sentenced to six months' detention, suspended for two years, for assisting an offender.
On 17 th September 2004 in the Crown Court at Bolton the applicant had been sentenced to six years' imprisonment for two robberies and other matters.
On Wednesday 2 nd March 2005 while serving that sentence at Her Majesty's Prison Forest Bank the applicant told a custody officer that a cell door had slammed on his hand causing injury. His hand appeared to be swollen and bruised. There were no X-ray facilities in the prison. The doctor in the prison health-care unit made arrangements for an X-ray at Hope Hospital. The applicant's hands were cuffed together and his right hand was further cuffed to the left arm of a prison officer. That officer and a second officer who had the keys to the handcuffs escorted the applicant to hospital in a taxi for an X-ray appointment.
The taxi, a Ford Transit minibus, arrived at the prison. The applicant and the two prison officers got in. The vehicle drove off. A 4x4 vehicle pulled out and joined the traffic behind the minibus. There were two men in the vehicle, a driver, and a front seat passenger. They both wore balaclavas. The 4x4 overtook the minibus and pulled in sharply in front of it, forcing it to stop. The front seat passenger from the 4x4 walked round to the front of the minibus and smashed the window in the side door with a pistol. He said: "Open the fucking door". The second officer complied. The man pressed the pistol to the second officer's temple. He ordered him to take off the cuffs. The second officer took the keys out and unlocked the cuffs. The applicant went willingly over to the 4x4 and got in. The 4x4 then sped off.
The officers returned to the prison and reported the matter.
On the night of Friday 18 th November 2005, while still at large, the applicant attended a house party in Blackley. He was invited by Leanne Murphy, one of a number of women present. The complainant, Richard Lomas, was also present. The two men sat opposite each other on sofas. In the early hours of the morning they had an argument. The applicant rose to his feet. He approached the complainant. He produced a knife with a blade of six to eight inches. He stabbed the complainant seven times – five times in the chest, once in the face and once in the scalp. The applicant left the party in a vehicle driven by Leanne Murphy.
He was arrested on the night of Tuesday 22 nd November 2005 in connection with a different matter. He declined to comment when interviewed.
The applicant is now 30 years old. He was born on 17 th September 1983. He has appeared before the courts on eleven previous occasions. In 1999 he was given a conditional discharge for robbery. In 2000 he was fined for having a bladed article. In 2001 a short custodial sentence was imposed for two weapons offences. In 2004 he received concurrent sentences of five and six years for two robberies, with short concurrent sentences on other matters. It was that sentence that he was serving at the time of these offences.
The author of the pre-sentence report said that these offences showed strong links with others capable of serious violence, and an escalation in the level of violence compared with previous offences. The use of the knife was planned. It was possible that the applicant was prepared to inflict serious violence to attain status and reputation. In the circumstances he had to be assessed as being at the highest level of risk of causing serious harm if he were in the community. The risk of re-offending was high. His motivation to achieve status through violent crime suggested he was ambitious as a career criminal, and such motivation has to be at the expense of any regard for a victim. He realised that he could be given an indeterminate sentence. He had planned the escape, but had expected his accomplices to use a baseball bat and a machete, rather than a gun, with which to threaten the prison officers. He wanted to escape because he had become addicted to heroin in prison and owed money for drugs. He continued to deny the attempted murder in interview.
Passing sentence, the judge said that the escape showed a considerable degree of cunning and determination. No physical injury was caused, but the mental scars would last for many years.
Eight and a half months later the applicant had stabbed another man seven times. The jury had found that his intent was to kill that man. The offence was aggravated by being committed on the run and because he clearly carried a knife as a matter of course. He showed no remorse.
At the outset of his sentencing remarks the judge said that the mechanics of passing sentence were not straightforward. It is important to analyse what the judge said in order to understand the structure of the sentence which he passed and his reasons for using that structure.
First, the judge said that if both the current offences had been committed before 4 th April 2005 he would have ordered the sentences to be served at the end of the applicant's sentence for robbery. He would also have ordered the two sentences to run consecutively to each other, while having regard to totality.
Second, the attempted murder post-dated 4 th April 2005 and triggered the dangerous offender provisions. Attempted murder was an offence specified in Schedule 15 to the Criminal Justice Act 2003. The judge decided that an indeterminate sentence was appropriate for that offence. In those circumstances, he said, it was not acceptable sentencing practice either to order such a sentence to start at the end of the applicant's current sentence, or to order such a sentence to run consecutively to the sentence for escape. The sentences he would pass, therefore, had to, and would, reflect the fact that, first, they were to start immediately, and not at the end of the current sentence in December 2008; and second, that they would be concurrent with each other. This meant that it was appropriate, and in accordance with the practice of this court, to increase the notional determinate sentence for the principal offence of attempted murder so that "in reality the sentence which you serve for these offences is not artificially reduced and does not become shorter than the principles of retribution and deterrence that the overall public interest requires".
It is thus clear that the judge's intention was to achieve, in total, a length of sentence which properly reflected the overall criminality of the applicant's behaviour and was not artificially shortened by the complications which ensued from the need to pass an immediate indeterminate sentence on a serving prisoner – complexities which were compounded by the undesirability of ordering a determinate sentence for escape to run consecutively to an indeterminate sentence. The judge went on to explain that had the sentences been determinate, the offence of escape would have merited six years after trial. That was reduced to four years in view of the applicant's guilty plea at the first opportunity.
The starting point for murder was fifteen years – the equivalent of a 30 year sentence. The appropriate determinate sentence for the attempted murder, bearing in mind the applicant's age and other factors, was thirteen years. If the two sentences were ordered to run consecutively, that would lead to a total of seventeen years to start at the end of the current sentence, that is in 2008; and in the light of the former provisions, a three year sentence. Having regard to the principle of totality, both sentences would be reduced by one year, giving a total of fifteen years to start at the end of the current sentence. That would be increased to eighteen years to reflect the fact that the indeterminate sentence was to start immediately, rather than at the end of his existing sentence, which had a further three years to run.
The offences were not serious enough to justify a life sentence, but because the applicant had already been convicted of two offences of robbery, and because of the nature of the current offences, the judge was required to assume, in short, that the applicant was dangerous, unless such a conclusion was unreasonable. He did not consider that it was. The judge took into account the applicant's willingness to carry and, where necessary, to use, knives. The judge was therefore required to impose a sentence of imprisonment for...
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