Practice and Procedure


PUBLISHED May 15, 2003

Where detention was ordered at Her Majesty's pleasure, a minimum term of five and a half years for murder was unduly lenient as the sentencing judge had effectively taken into account the early release provisions twice. The correct minimum term was 11 years.Application by the Attorney-General to refer a sentence under s.36 Criminal Justice Act 1988. On 21 October 2002 at Lewes Crown Court, before Moses J, the defendant, ('H') was convicted of murder after having previously pleaded guilty to conspiracy to prevent lawful burial of a body. A co-accused ('G') pleaded guilty to conspiracy to prevent lawful burial of a body. H was 17 years old at the time of the offence and 18 at trial. In June 2002 he was sentenced under s.90 Powers of Criminal Court Sentencing Act 2000 to be detained in a young offender's institution at her majesty's pleasure for murder with four years for the conspiracy to run concurrently. At the time of sentence the judge was of the opinion that s.82A of the 2000 Act did not apply and did not order a minimum term to be served. When he realised the mistake H was brought back, on 30 July 2002, and the judge ordered a minimum term of five and half years, less 432 days already served. The judge explained that that term represented half of the appropriate period of 11 years. The victim ('V') was an 81 year old retired vicar, who H was living with as a lodger. H had use of V's car and boat. The relationship was strained and in a letter to H's mother, not sent, dated April 2001 V complained that H's behaviour was unacceptable. He asked that H's mother take him back. He wrote that H had been playing loud music late at night and he had tried to call the police. H pulled the phone wire out, took out all the light bulbs, sprayed him with two cans of deodorant, manhandled him into his bedroom and locked him in for two and half hours. It was over the weekend of 28 to 29 April 2001 that V went missing. On 1 May 2001 H was arrested but said he did not know where V was. Later body parts were found and H was re-arrested. On 18 May 2001 G admitted to police his involvement and took the police to two sites where body parts had been disposed of. He told police that H had told him that he had drowned V in the bath and then chopped up the body to dispose of it. It was the prosecution's case that H had come to enjoy the benefits of living with V and had murdered him out of spite and continued to live in the house. The Attorney-General referred the order specifying the minimum period under s.82A of the 2000 Act as unduly lenient as it failed to take into account the gravity of the offence and public concern.HELD: (1) The task for the judge was not easy given the very recent changes in the law, at the time of sentence, as set out in the Practice Direction "Life Sentences" (2002) 3 All ER 412 on 8 July 2002. The Practice Direction stated, at para.49.25, that, when dealing with young offenders, the judge should start with the same starting point as for an adult, 12 years, and then take into account the age and development of the offender. As a rough rule approximately one year ought to be taken off for each year a defendant was below the age of 18. (2) The way the court ought to approach the sentence was considered in R v Hand & Anr (2003) EWCA Crim 309. Longmore LJ held that it was a "four-fold operation, (i) consider the starting point, in the case of a young offender 12 years; (ii) consider aggravating factors; (iii) consider mitigating factors; and (iv) deduct any time spent on remand. It was clear that the initial 12 year starting point took into account the early release provisions. (3) The judge had effectively taken into account the early release provisions twice. The sentence was unduly lenient and when applying the provisions the judge should only have gone through the steps identified. If he had done that the result would have been a minimum term of 11 years. The five and half years would be quashed and 11 years substituted.Leave granted, application allowed.