R v Benjamin Peters, Daniel Roy Palmer and Shantelle Jamine Campbell
| Jurisdiction | England & Wales |
| Judge | Lord Justice Judge |
| Judgment Date | 10 March 2005 |
| Neutral Citation | [2005] EWCA Crim 605 |
| Docket Number | Case No: 200406476 A7; 200405487 A4; 200405878 A4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 10 March 2005 |
[2005] EWCA Crim 605
Lord Justice Judge
Deputy Chief Justice Of England And Wales
Mr Justice Cresswel And
Mr Justice Fulford
Case No: 200406476 A7; 200405487 A4; 200405878 A4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
(1) THE CENTRAL CRIMINAL COURT
HIS HONOUR JUDGE KRAMER
(2) THE CROWN COURT AT SNARESBROOK
HIS HONOUR JUDGE RADFORD
(3) THE CROWN COURT AT WARWICK
HIS HONOUR JUDGE CHAPMAN
Royal Courts of Justice
Strand, London, WC2A 2LL
S. Solley QC and M. Watts for Peters
J. N. Donne QC and A. Orchard for the Crown in Peters
D. Janner QC for Palmer
C.W.D. Aylett for the Crown in Palmer
Miss R. Brand QC for Campbell
Miss J. Newman for the Crown in Campbell
We heard these three appeals together. In unrelated cases, the appellants pleaded guilty to or were convicted of murder. Mandatory life sentences were passed on them. In accordance with s 269(2) of the Criminal Justice Act 2003, the judge determined the minimum term each should serve before the early release provisions would apply. Each now appeals against the minimum term, and the cases have been dealt with in a Guideline Court.
The first linked feature of these cases arises from the fact that the offenders were young. Two of them were 19 1/2 years old when they committed murder, and 20 when sentenced, and the third appellant was just 18 when she committed murder, and not yet 19 when she was sentenced. The second linked feature was that the minimum term was assessed on the basis that, at the time of the killing, the offender intended not to kill but to cause the victim grievous bodily harm. A third feature of general importance emerged during the course of the argument in Peters, and concerned one of the potential problems relating to the calculation of credit to be given to the offender who pleads guilty to murder.
Guidelines, whether resulting from cases decided in this Court, or produced by the Sentencing Guidelines Council, are guidelines: no more, no less. The purpose is to ensure consistency of approach among sentencers. It is critical to any informed understanding of the sentencing decision, however, that the precise circumstances of and in which each crime is committed are different from each other. Each victim is a different individual: so is each defendant. Unless a mandatory sentence is prescribed by statute, as it is for murder, the sentencing decision is not compartmentalised, nor capable of arithmetical calculation. Broad guidance will produce sentencing consistency, but precisely because the circumstances of the offence and the offender vary, and may vary widely, an individual sentencing decision appropriate for the unique circumstances of each case is required. This principle remained unchanged when Parliament created the legislative sentencing framework to be found in s 269 and Schedule 21 of the Criminal Justice Act 200( R v Sullivan [2005] 1 CAR 23; R v Last [2005] EWCA Crim. 106.)
In murder cases, the protection of the public, rightly regarded as the prime consideration, is achieved by the mandatory life sentence itself. The "minimum term" prescribed by s 269(2), to reflect punishment and deterrence, requires the court to assess "the seriousness of the offence, or of the combination of the offence and any one or more offences associated with it" (s 269(3)). In short, the legislative framework itself recognises that even in murder cases an identical level of seriousness cannot be attributed to each case. For the purpose of assessing seriousness the court must have regard to what s 269(5) describes as the "general principles" in Schedule 21, as well as any general guidelines relevant to the individual case, which are not incompatible with Schedule 21.
Schedule 21 provides a series of criteria to be taken into account when the court is determining the appropriate minimum term to reflect the "seriousness" of the individual offence. The process of determination begins with the identification of the starting point, which should normally, but we emphasise, not invariably or inevitably, be taken. None of these provisions enables the court to avoid its obligation to make a careful analysis of all the relevant facts, including the statutory criteria and guidelines. Sentencers have for many years been required to explain their decisions, even if briefly, not only to the offender himself but also for the information of the public generally. Under Schedule 21 they are required to identify the starting point they have taken, and if they depart from what is described as the "normal" starting point, they are obliged to explain their reasons. Nevertheless, the reality, as the statute acknowledges, is that justice cannot be done by rote. This principle applies equally to cases where the judge considers that the seriousness of the offence calls for a longer sentence than the normal starting point, as to cases where the proper minimum term is lower.
Paragraphs 6 and 7 of Schedule 21 identify starting points of 15 years and 12 years as the minimum term for cases which lack the features previously identified in paragraphs 4 (whole life) and paragraph 5(1) and 5(2) (30 years). The court must further address any relevant aggravating or mitigating factors, some, but again not all of which are, nor could be specified in the statute. And accordingly, when making his sentencing decision, the judge is not rigidly bound by or limited to the specific features included in the list of aggravating factors in paragraph 10 or mitigating factors in paragraph 11. As Lord Woolf CJ explained in R v Last, "Schedule 21 does not seek to identify all the aggravating and mitigating factors, it merely provides relevant examples".
The present cases provide two clear examples of unspecified features relevant to the determination of the minimum term, running in opposite directions. One of these deaths occurred as the result of a fight between rival groups of young men in broad daylight, during the course of an incident which was or might well have been witnessed by people and indeed children going about their lawful activities. At the time of this killing, this particular street turned into a dangerous place. Such a crime has a significant public element. It produces huge public dismay. It is therefore an aggravating feature of the case not included in the aggravating features identified in paragraph 10. Another of these cases involves a young woman, just 18 years and 2 months old at the time of the murder, whose life until that date was rightly described by the judge as "wretched". Her catastrophic start, and its link with the killing, and the impact of the killing on her, provide mitigating features, properly to be taken into account, which, again, are not specified in paragraph 11.
One problem arising from the legislative framework is that the sentencing court may approach the decision, or be invited to do so, as if the ultimate sentence represents a mathematical calculation. It does not. Our attention was drawn to R v Warsame [2004] EWCA Crim. 2770. In that case the Court explained its decision by reference to the appropriate bracket of years to be added to the normal starting point to allow for one specific aggravating feature, and to be deducted from it to allow for one mitigating feature. In the course of one of these appeals, we allowed counsel to develop an argument based on a calculation of the reduction from the starting point for individual mitigating factors, by periods of months or years, and then adding back a calculation of the months or years to allow for specific aggravating features. The exercise demonstrated how unworkable such an exercise normally is. Too many factors interlink. In reality, save perhaps in a most exceptional case, we doubt whether the method of determining the sentence adopted in Warsame would be necessary or appropriate to explain how the sentencing judge determined the minimum term. In the final analysis, the true seriousness of the offence, which the minimum term is intended to reflect, inevitably represents a combination, and simultaneously, a balancing of all the relevant factors in the case.
We should further emphasise that Schedule 21 of the Criminal Justice Act 2003 does not affect any change in the practice of this Court when it is invited to consider an appeal against the judge's determination of the minimum term to be served by the defendant. The Court will examine the specified period. If, looked at overall, this Court takes the view that the end result fell within the appropriate range of sentence and the margin of judgment and discretion given to the sentencing judge, nice points, whether or not based on a mathematical calculation, about whether he allowed sufficiently for this, or that specific feature of the case, will not result in a successful appeal. In short, this Court will not interfere with the minimum term specified by the judge unless, in all the circumstances, it is manifestly excessive nor wrong in principle.
Age
Schedule 21 includes repeated references to the age of the offender. Significant distinctions to the normal starting point are drawn between offenders who are aged 21 or over, 18 or over, or under 18 at the time of the offence. Thus, for example, for an offender aged 18 or over whose case does not fall within paragraph 4( 1) or 5( 1) or 5(2), the appropriate starting point is 15 years, but if he is aged under 18, the appropriate starting point becomes 12 years. And quite apart from different starting points...
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