O'Brien, R v [2005] EWCA Crim 173

Case No 04/4627/A3[2005] EWCA Crim 173
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Monday, 24 January 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE CLARKE
MR JUSTICE ELIAS
MR JUSTICE OWEN
Between
R E G I N ACrown-v-
Between
MICHAEL O'BRIEN
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR MICHAEL EVANS appeared for APPELLANTMR PETER JOYCE QC appeared for CROWN
J U D G M E N T

LORD JUSTICE CLARKE: This is the judgment of the court.

[2]The appellant is Michael O'Brien, who was 22 at the time of the offence. On 12th July 2004, at the Crown Court at Nottingham, before His Honour Judge Pollard and a jury, the appellant was convicted of murder and of making a threat to kill. He was sentenced to life imprisonment for the murder and to 3 years' imprisonment concurrent for making a threat to kill. The total sentence was life imprisonment with a specified period of 23 years 1 month and 23 days. He appeals against the minimum period by leave of the single judge, Tomlinson J.[3]The facts may be shortly stated. The appellant associated with a man called Salmon. They both had an animosity to a group of people associated with a family called Gunn, who had considerable influence over their community and a number of public houses in a district of Nottingham. The background to the offence was that a firearm was discharged at Salmon's home by persons unknown at a time when Salmon was inside the house. Salmon did not, however, make a formal complaint about that incident.[4]On the evening of 29th August 2003 the appellant and Salmon were out together and about 10 pm they met up with two women at a public house. Shortly before midnight they tried to gain entry to a nightclub, but they were refused entry. An argument then took place between the appellant and one of the doormen, during which he made threats to shoot the door staff. The threat implied that he was going to leave and arm himself, before returning. That was the basis of the count which alleged making a threat to kill.[5]The two men then went to a snooker club, where they met two girls, whom they took back to Salmon's home address. They stayed at Salmon's house with the girls for about two hours, before Salmon's girlfriend called from a public house called The Sporting Chance asking for a lift home. The appellant and Salmon went to The Sporting Chance. Salmon's girlfriend and two other women got into the car. The appellant went into The Sporting Chance, where he was confronted by a number of the customers, including a member of the Gunn family, who struck him on the head with an ashtray, causing a cut above his left eye. He then ran to Salmon's house, which was a short distance away, where he was treated for his injury. After Salmon had taken the women home, he rejoined the appellant in his house. Having armed himself with a shotgun, the appellant walked back to the public house with Salmon. Gunn and some others were waiting to leave in a car, but as the car drove towards the exit of the car park the appellant discharged the gun from close range, hitting the driver, Marvyn Bradshaw, in the head and a passenger, Lyndon Leith, on the arm. He then returned on foot with Salmon to Salmon's house. Mr Bradshaw subsequently died from his injuries.[6]The appellant has a substantial number of previous convictions. They are mostly for theft but include attempted burglary and burglary, and, more significantly, two robberies committed in June and July 1999. It is right to say, however, they do not include firearms offences or offences of violence or anything like that with which this case is concerned.[7]In passing sentence the judge said that it was clear that the appellant had been forced to leave the public house and, as he left, he was injured by an ashtray. The jury had resolved that that did not justify what he subsequently did. He had armed himself with a single-barrelled shotgun and, having loaded it, went back to the public house and shot a wholly innocent man in the back of his head. There was no doubt that he intended to kill him because of what he had said to one of the women. Apart from the very limited mitigation that came from his age, there was no mitigation. The mandatory sentence was life imprisonment, but the court had to specify the length of time he would serve. Had he fallen to be sentenced under Schedule 21 of the Criminal Justice Act 2003 the appropriate starting point would have been 30 years. However, the Act required the appropriate period to be calculated as the law stood at the time he committed the offence. The recent case of Sullivan gave the relevant guidance, and therefore the appropriate starting point was 12 years. The aggravating feature was the deliberate and calculated use of a firearm after he had left to arm himself with it, announcing his intention to kill and then going and carrying it out. He had not shown one shred of remorse. This was a very serious case indeed and the courts would do what they could to deter and eradicate gun crime. There would be a slight reduction in the minimum period to 24 years to reflect his age. The 10 months 3 days he had spent on remand would be deducted from that period. The sole question in this appeal is whether that minimum period of 24 years was manifestly excessive.[8]In granting leave to appeal the single

judge said this:

"It is difficult to describe the minimum term as either inappropriate or manifestly excessive. However because of the uncertainty introduced into the transitional provisions by the need to have regard to the practice followed by the Secretary of State and because it is early in the application of these provisions, it is in my judgment appropriate that this minimum term be considered by the full court."
[9]The relevant principles are not in dispute and were expressly referred to by the judge. They are set out in Sullivan [2004] EWCA Crim 1762, which was handed down on 8th July 2004. The starting point is Schedule 21 of the Criminal Justice Act 2003 ("the Act"). Section 269 provides:
"269 Determination of minimum term in relation to mandatory life sentence (1) This section applies where after the commencement of this section a court passes a life sentence in circumstances where the sentence is fixed by law. (2) The court must, unless it makes an order under subsection (4), order that the provisions of section 28(5) to (8) of the Crime (Sentences) Act 1997 (referred to in this Chapter as 'the early release provisions') are to apply to the offender as soon as he has served the part of his sentence which is specified in the order. (3) The part of his sentence is to be such as the court considers appropriate taking into account-- (a) the seriousness of the offence, or of the combination of the offence and any one or more offences associated with it, and (b) the effect of any direction which it would have given under section 240 (crediting periods of remand in custody) if it had sentenced him to a term of imprisonment. (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. (5) In considering under subsection (3) or (4) the seriousness of an offence (or of the combination of an offence and one or more offences associated with it), the court must have regard to-- (a) the general principles set out in Schedule 21, and (b) any guidelines relating to offences in general which are relevant to the case and are not incompatible with the provisions of Schedule 21."
[10]This is not a case in which it was appropriate for the court under section 269(4) to make no order under section 269(2). The court must therefore fix "the part of the sentence defined by section 269(3)". It is not in dispute that it was appropriate to give credit for the period of ten months and three days that the appellant had spent on remand in accordance with section 269(3)(b). The court thus had to determine the part of the sentence which it considered appropriate taking into account the seriousness of the offence in accordance with section 269(3)(a).[11]In considering the seriousness of the offence, the court was bound to have regard to the general principles set out in Schedule 21 under section 269(5)(a) and to any relevant guidance within section 269(5)(b). The judge did that and, applying section 29, held that the appropriate starting point was or would have been 30 years. It is not suggested that the judge was wrong in that regard. He was, in our view, plainly correct having regard to the provisions of paragraph 5(1) and (2)(a) of Schedule 21 because the murder involved the use of a firearm. The judge held that it would be appropriate to make a slight reduction from the starting point of 30 years having regard to the appellant's age.[12]He no doubt did so pursuant to paragraphs 8 and 9 of Schedule 21, which provides:
"Aggravating and mitigating factors 8. Having chosen a starting point, the court should take into account any aggravating or mitigating factors to the extent that it has not allowed for them in its choice of starting point. 9. Detailed consideration of aggravating or mitigating factors may result in a minimum term of any length (whatever the starting point), or in the making of a whole life order."
Again, Mr Evans does not challenge that conclusion. However, he submits that that starting point is irrelevant on the facts of this case.[13]The appellant's case is governed by Schedule 22 to the Act (see section 276). Schedule 22 provides, so far as relevant:
"Schedule 22 MANDATORY LIFE SENTENCES TRANSITIONAL CASES. Sentences passed on or after commencement date in respect of offences committed before that date. 9 Paragraph 10 applies where-- (a) on or after the commencement date a court passes a life sentence in circumstances where the sentence is fixed by law, and (b) the offence to which the sentence relates was committed before the commencement date.

(b) "

[14]This case is governed by paragraphs 9 and 10 because the murder was committed on 30th August 2002, which was of course before the commencement date, which was 18th December 2003.[15]In Sullivan this court considered what was the practice followed by the Secretary of State before December 2002. In paragraph 23 of the judgment of the court in Sullivan, which was delivered by the Lord Chief Justice, the court identified the purpose of paragraph 10, namely to avoid the offender having a minimum term which would be contrary to Articles 5 and 7.1 of the European Convention on Human Rights. They prohibit a heavier penalty than could have been imposed at the time the offence was committed. Since a minimum term is a "penalty" for this purpose, it follows that the minimum term calculated in accordance with Schedule 21 must not exceed the minimum term which would have been capable of being imposed at the time the offence was committed, namely 30th August 2003. As the court observed in paragraph 26 in Sullivan, the problem was to identify what was the practice of the Secretary of State prior to December 2002. The court concluded that the best guide to that practice was the practice directions issued by Lord Bingham CJ and Lord Woolf CJ, although, as the court put it in paragraph 27:
"There remain at least two more complications. First, as has been made clear by the Secretary of State, in the most serious cases he tended to select a higher figure than that indicated by the judiciary. Secondly, by the date of the decision in Anderson, the Secretary of State had not yet made a determination in a case where the offender was sentenced after the date of the latest practice direction (31st May 2002)."
[16]The court considered a number of directions given by Lord Bingham and Lord Woolf. It first considered a letter sent to the judges on 10th February 1997 and a practice statement dated 27th July 2000 which identified a period of more than 30 years in very rare cases and a 14-year norm. The court then considered the advice of the Sentencing Advisory Panel of 15th March 2002, which noted that minimum terms varied "widely above and below the 14-year norm" and suggested three starting points. They were a higher, middle and lower starting point, namely 15/16 years, 12 years and 8/9 years. The court in Sullivan held, at paragraph 31, that there was no inconsistency between Lord Bingham's 14 years and the Panel's 12 years, which was designed to cover the case "that arises from a quarrel between two people known to each other". The advice was implemented in a practice statement handed down on 31st May 2002 by Lord Woolf [2002] 1 WLR 1789.[17]The practice statement included the Panel's description of the kind of case suitable for a 12-year starting point. It then set out some of the paragraphs of the May 2002 practice direction, to which we shall return in a moment, and summarised the position thus in paragraph 33:
"On examination of these passages it can be seen that there are a series of starting points in this practice direction: a reduced starting point of 8/9 years for a case with reduced responsibility (para 49.11); a normal starting point of 12 years (para. 49.10); a higher starting point of 15/16, years (para. 49.13); 20 years and over in an especially grave case (para. 49.20); and in an extremely serious case, 30 years can be appropriate; and finally in cases of such exceptional gravity (for which there is to be no minimum term) that there is in effect a whole life term (para. 49.19)."
[18]In paragraph 34 the court emphasised the fact that both Lord Bingham's approach and the 2002 directions give the judge a considerable degree of discretion.[19]In paragraph 38 and following the court considered a later practice direction, dated May 2004, which set out guidance previously given by a letter from Lord Woolf to the judges dated 16th December 2003. However, as we read the judgment, the court decided that the court should use the May 2002 practice direction and not the subsequent direction in the future in respect of cases where the offence took place after 31st May 2002 and before 18th December 2003.[20]Since the decision in Sullivan and indeed since the decision of the judge in this case, a new practice direction dated 29th July 2004 has been issued. It amends the Consolidated Criminal Practice Direction handed down by the Lord Chief Justice on 8th July 2002 and replaces that of 18th May 2004. It reflects the decision in Sullivan: see paragraphs IV 49.14 to 21. The practice direction reproduces the relevant paragraphs of the May 2002 practice direction: see paragraph IV 49.22. For present purposes the following paragraphs of the July 2004 practice direction are relevant: "IV.49.22 For the purposes of sentences where the murder was committed after 31 May 2002 and before 18 December 2003, the judge should apply the practice statement handed down on 31 May 2002 reproduced at paras 49.23 to 49.33 below. IV.49.23 This replaces the previous single normal tariff of 14 years by substituting; a higher and a normal starting point of respectively 16 (comparable to 32 years) and 12 years (comparable to 24 years). These starting points have then to be increased or reduced because of aggravating or mitigating factors such as those referred to below. It is emphasised that they are no more than starting points. The normal starting point of 12 years IV.49.24 Cases falling within this starting point will normally involve the killing of an adult victim, arising from a quarrel or loss of temper between two people known to each other. It will not have the characteristics referred to in para 49.26. Exceptionally, the starting point may be reduced because of the sort of circumstances described in the next paragraph. IV.49.25 The normal starting point can be reduced because the murder is one where the offender's culpability is significantly reduced, for example, because: the case came close to the borderline between murder and manslaughter; or the offender suffered from mental disorder, or from a mental disability which lowered the degree of his criminal responsibility for the killing, although not affording a defence of diminished responsibility; or the offencer was provoked (in a non-technical sense), such as by prolonged and eventually unsupportable stress; or the case involved an over reaction in self-defence; or the offence was a mercy killing. These factors could justify a reduction to 8/9 (equivalent to 16/18 years.) The higher starting point of 15/16 years IV.49.26 The higher starting point will apply to cases where the offender's culpability was exceptionally high or the victim was in a particularly vulnerable position. Such cases will be characterised by a feature which makes the crime especially serious, such as: the killing was 'professional' or a contract killing; the killing was politically motivated; the killing was done for gain (in the course of a burglary, robbery etc); the killing was intended to defeat the ends of justice (as in the killing of a witness or potential witness); the victim was providing a public service; the victim was a child or was otherwise vulnerable; the killing was racially aggravated; the victim was deliberately targeted because of his or her sexual orientation; there was evidence of sadism, gratuitous violence or sexual maltreatment, humiliation or degradation of the victim before the killing; extensive and/or multiple injuries were inflicted on the victim before death; the offender committed multiple murders. Variation of the starting point IV.49.27 Whichever starting point is selected in a particular case, it may be appropriate for the trial judge to vary the starting point upwards or downwards, to take account of aggravating or mitigation factors, which relate to either the offence or the offender, in the particular case. IV.49.28 Aggravating factors relating to the offence can include: the fact that the killing was planned; the use of a firearm; arming with a weapon in advance; concealment of the body, destruction of the crime scene and/or dismemberment of the body; particularly in domestic violence cases, the fact that the murder was the culmination of cruel and violent behaviour by the offender over a period of time. IV.49.29 Aggravating factors relating to the offence will include the offender's previous record and failures to respond to previous sentences, to the extent that this is relevant to culpability rather than to risk. IV.49.30 Mitigation factors relating to the offence will include: an intention to cause grievous bodily harm, rather than to kill; spontaneity and lack of premeditation. IV.49.31. Mitigating factors relating to the offender may include: the offender's age; clear evidence or remorse or contrition; a timely plea of guilt. IV.49.32 A substantial upward adjustment may be appropriate in the most serious cases, for example, those involving a substantial number of murders, or if there are several factors identified as attracting the higher starting point present. In suitable cases, the result might even be a minimum term of 30 years (equivalent to 60 years) which would offer little or not hope of the offender's eventual release. In cases of exceptional gravity, the judge, rather than setting a whole life minimum term, can state that there is no minimum period which could properly be set in that particular case. IV.49.33 Among the categories of case referred to in paragraph VI.49.26 some offences may be especially grave. These include cases where the victim was performing his duties as a prison officer at the time of the crime or the offence was a terrorist or sexual or sadistic murder or involved a young child. In such a case, a tern of 20 years and upwards could be appropriate. IV.49.34 In the following guidance, judges should bear in mind the conclusion of the court in Sullivan that the general effect of both these statements is the same. While Lord Bingham does not identify as many starting points, it is open to the judge to come to exactly the same decision irrespective of which was followed. Both pieces of guidance give the judge a considerable degree of discretion." (The paragraphs in the May 2002 practice direction to those which are equivalent to paragraphs IV 49.23 to IV 49.33 practice direction are paragraphs 49.9 to 49.20.)[21]Mr Evans submits that in arriving at a minimum period of 24 years the judge must have taken too high a starting point, perhaps by having regard to a starting point of 30 years which would have been applicable under Schedule 21. We are not persuaded that the judge in fact did that, if only because he said that he took a starting point of 12 years. But, if he did, we accept the submission that he was wrong to do so.[22]It is plain from the principles set out in Sullivan above that the essential question is what would have been the starting point under the May 2002 practice direction.[23]As to the starting point of 12 years, paragraph IV 49.24 provides that "cases falling within this starting point will normally involve the killing of an adult victim, arising from a quarrel or loss of temper between two people known to each other". That, in our judgment, is a far cry from the present case. The appellant used a firearm to commit this murder. It is true that use of a firearm is not included in the list of cases in paragraph IV 49.26 which considers the higher starting point of 15/16 years. However, as its opening words indicate, that paragraph is concerned with cases in which the offender's culpability is exceptionally high. In our judgment this is such a case. The list of particular cases in the paragraph is a list of examples of such a case. In this case the appellant made a random decision to kill the victim in cold blood. We are of the view that the appropriate starting point here is the higher starting point of 15/16 years provided for in IV 49.26.[24]In this case there is an important aggravating circumstance within those identified in IV 49.28, namely the use of the firearm. In deciding what the relevant period should be, the essential question, in our judgment, is whether this was an "especially grave" offence of the kind contemplated by paragraph IV 49.33 as meriting a term of 20 years and upwards. Mr Evans submits that it is not. He points to the appellant's age, to the fact that there was no long period of planning or premeditation here and to the fact that, apart from two robberies, the appellant does not have a record of violence and has not previously been convicted of using a firearm.[25]Against that

the judge said this:

"The aggravating feature in your case, which I have spelled out now, is the use of that firearm in a calculated and deliberate way, going to arm yourself with it, announcing your intention to kill and then going and carrying that out. You have never shown a shred of remorse for what you did."
[26]We agree. We have reached the conclusion that it was appropriate to take the 15/16-year starting point and not the 12-year starting point apparently taken by the judge.[27]In conclusion, taking account of the aggravating features identified by the judge which we have just quoted, but having regard to the submissions made by Mr Evans, we have concluded that 24 years was manifestly excessive. We accept Mr Evans' submission that this case does not fall within the "especially grave" category of case under IV 49.33 and that an appropriate period should have been 18 years less the 10 months 3 days on remand. The result is that, subject to the precise calculation depending upon which month is considered, the relevant period is 17 years 1 month and 28 days.[28]We should add that if we had concluded that this was a case in which the starting point was 12 years or, indeed, the 14 years referred to by Lord Bingham, having regard to the aggravating features and the other factors of the particular case, the right figure would in any event be 18 years.[29]For those reasons this appeal is allowed to that extent.