Attorney General Reference No 130 Of 2004 [2005] EWCA Crim 278

Case No 200406119/A7[2005] EWCA Crim 278
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 3rd February 2005
Strand
London, WC2
B E F O R E:
THE VICE PRESIDENT
(LORD JUSTICE ROSE)
LADY JUSTICE SMITH
MR JUSTICE OWEN
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 130 OF 2004
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR M ELLISON appeared on behalf of the ATTORNEY GENERAL
MISS E MARSH QC appeared on behalf of the OFFENDER
J U D G M E N T
[1]THE VICE PRESIDENT: The Attorney-General seeks the leave of the Court, under section 36 of the Criminal Justice Act 1998, to refer a sentence said to be unduly lenient. We grant leave.[2]The offender was born in May 1985 and is now 19 years of age. On 30th September 2004 he pleaded guilty to murder of a woman called Corinne Bailey and to attempting to cause grievous bodily harm to Julie Francis, both of those offences being committed within a comparatively short space of time on 16th August 2003. He was sentenced by Astill J, at the Central Criminal Court, to custody for life for murder, with a minimum term specified of 14 years, less the 1 year and three days which he had spent in custody, that is to say, the term to be served was 12 years and 362 days. That sentence was, of course, imposed in relation to the offence of murder. A sentence of 8 years custody concurrent was imposed for the attempted grievous bodily harm.[3]The circumstances were that the victim of the lesser offence, Julie Francis, was 39 years old and, for some months before she was attacked by the offender, she had offered sexual services to passersby on streets in Croydon, near where the offender lived. But it was her practice, having obtained money in advance, to leave without engaging in any sexual activity.[4]In the early hours of 16th August 2003, under the influence of crack cocaine, prescribed drugs and alcohol, she was working in this way in London Road, Croydon, together with another woman. About 2.30 in the morning the two of them were standing outside a 24 hour shop on London Road. The offender walked past them and gestured to Julie Francis to follow him. She did so. They exchanged names (in both cases false) and she invited him into an alleyway on the other side of the road. Once there, he began to undo his trousers and exposed his penis. She told him she wanted the money upfront. The offender said:
"You ain't getting any fucking money. You ain't going nowhere"
. He punched her hard in the face with his fist and pushed her down, by pressure on her throat, making her sit down. He then tightened his grip on her. She took what cash she had and threw it at him. But he did not take it. He carried on holding her throat. She began to feel weak. She said he kept saying:
"You're going to die", although he was later to deny saying this. She grabbed his hand, screamed for help and begged him to stop. He put his hand over her face and kept hold of her throat. He then came close enough to her for her to bite his neck. He squeezed her throat harder and she believed she must have lost consciousness for a short while. When she came round, the offender was standing over her with his penis exposed and erect. She screamed at him. He ran away. She shouted after him "
Why?" He shouted back:
"You're a prostitute"
. She chased him, believing that she had been raped and she shouted "rape". She sought assistance from a group of young men, one of whom called the police and another of whom helped to chase the offender but he got away.[5]The injuries which Julie Francis sustained in this attack included bruising over her left cheekbone and the bridge of her nose and tenderness of her neck. At first she refused medical attention and discharged herself from hospital. But, after she heard what had happened later that day, so far as the offender was concerned, she submitted to a medical examination.[6]The victim of the murder was a 38 year old woman called Corinne Bailey. She was a married woman with two children, and lived in a flat in Campbell Road, Croydon, which was just off London Road and near the same 24 hour shop to which we earlier referred. A CCTV video camera captured her walking from Campbell Road towards the 24 hour shop, shortly after 4.00 am on 13th August. It also captured her returning towards Campbell Road with a carrier bag. As she returned, the offender was captured on the video, running out of Greenside Road, where he lived, carrying a long piece of wood and running in the direction of Campbell Road, where Corinne Bailey had gone. About quarter-of-an-hour later, he ran out from Campbell Road.[7]Corinne Bailey's body was discovered at about 7.40 am by a passerby. She was lying in a pool of blood, covered in blood, near a parked car in Campbell Road, about 500 metres from the place where Julie Francis had been attacked. Her lower clothing had been removed. Her purse and goods which she had bought from the shop were nearby. There was a bloodstained length of wood nearby.[8]Postmortem examination revealed that she had no less than 68 external injuries. She had been subjected to a violent and sustained attack with a blunt object, involving multiple blows to her head, neck and upper chest. The hyoid bones and cartilages in the neck were fractured, as were a number of facial bones. She had bruises on her face, consistent with punches or kicks. She also bore the marks of gripping, indicating restraint. Her bra was torn and there was a tear to her vulva, indicating a sexually motivated attack involving attempted vaginal penetration.[9]The offender was arrested on 27th September, in Brighton. In interview, he said he had been out drinking with friends on 15th August and could not remember exactly what he had done, or indeed where he had gone. He thought he had got back to his grandparents address in Greenside Road between 2.00 and 3.00 in the morning. On 29th September he was picked out on an identification parade by Julie Francis as being the man who had attacked her. The offender said that she must be mistaken.[10]At a plea and directions hearing, on 17th December 2003, the offender pleaded not guilty to murder and attempted murder. Subsequently, overwhelming DNA and fibre evidence was obtained which demonstrated a connection between him and the deceased.[11]The trial was fixed for 27th September 2004. It appears that, in June, he had conceded to those representing him that he was responsible for the attacks and, from that time, the witnesses knew that there would not be an issue in relation to that aspect of the matter. During the week before 27th September, it was indicated that he would plead guilty to murder and attempting to cause grievous bodily harm. On 30th September the case was listed for that purpose, and he so pleaded.[12]He has only one previous conviction, for theft, in May 2003.[13]There was a psychiatric report before the judge, which indicated that the offender was unable to provide any explanation for his attack on Julie Francis other than that he realised she was a prostitute. He denied saying he was going to kill her, but he had called her, he said,'a slag'.[14]In relation to Corinne Bailey, the offender said he had seen her walking with a bag and had got an urge to run over and hit her. It was not until he had struck the first blow to her head with the wood that he realised she was female. He did not know why he did not stop then. He denied, at that stage, intending to kill her, but no such lack of intent was in due course advanced by way of mitigation. He was not, in the view of the psychiatrist, suffering from any abnormality of mind or mental characteristics capable of providing any defence to murder.[15]The mitigation advanced on his behalf included his plea of guilty and his age, which was just over 18 at the time of the offence and just over 19 at sentence. Once he had admitted the offences, he had expressed remorse. It was emphasised that, although his conduct was plainly sexually motivated, he had not penetrated either woman with his penis; it was said that the injury to the deceased's vulva was manual rather than penile.[16]On behalf of the Attorney-General, Mr Ellison draws attention to what he rightly submits are a number of aggravating features. First, the attack was sexually motivated and involved sexual maltreatment and violence. Secondly, the offender pursued the victim, having armed himself with the piece of wood. Thirdly, he used gratuitous and extreme violence, inflicting multiple injuries, including, in the course of the attack, the use of the weapon, punches and stamping. Fourthly, the murder was committed about 2 hours after his attack on the other woman, by hitting and squeezing her throat, in the course of a sexually motivated attack believing that she was a prostitute.[17]In the light of those aggravating circumstances and in the light of the terms of the relevant Practice Direction, (this being an offence committed prior to December 2003, and therefore being one to which the transitional provisions apply, as set out in the Practice Direction (Crime Mandatory Life Sentences) (No 2) direction of 29th July 2004), Mr Ellison accepts - and this is not contested by Miss Elizabeth Marsh QC on behalf of the offender - that the starting point of 20 years, adopted by the learned judge, was an appropriate one. The judge was entitled to start at 15 to 16 years, as identified in IV.49.26 of the Practice Direction, and then to take into account the aggravating features which justify the upward variation of that starting point.[18]The submissions to this Court have focused on the extent to which the learned judge was then justified in reducing his figure of 20 years to the figure of 14 years. Mr Ellison, on behalf of the Attorney-General, accepts that there are two mitigating features which are relevant. First, the plea of guilty, at the stage and in the circumstances to which we have referred, and secondly, the age of the offender. But, he submits, the figure of 14 years at which the judge arrived, taking those matters into account, was unduly lenient and failed adequately to reflect the seriousness of the crime and to deter others.[19]Miss Marsh, on behalf of the offender, submits that, although the 14 year term could, perhaps, be characterised as generous, it ought not, properly, to be characterised as unduly lenient. She stresses the youth of the offender, in relation to whom, had the offence been committed a little earlier and had a different Practice Direction applied, the starting point would only have been 12 years. As it seems to us, we have to apply the Practice Direction in relation to this offence at the time when it was committed, having regard to the offender's age. But we accept that the offender's age is a matter which properly reduces the figure of 20 years. We also accept that the plea of guilty, in the circumstances and at the time at which it was entered, calls for a discount from the 20 year figure.[20]As it seems to us, the total discount from that 20 year figure, appropriate in this case would have been 4 years, made up as to about 18 months, in relation to the plea of guilty and as to about two-and-a-half years by reference to the offender's age. The 14 year term specified by the judge therefore appears to us to be unduly lenient. Although this is an Attorney-General's Reference, the provisions of the Criminal Justice Act 2003, by a new subsection (3)A, in section 36 of the Criminal Justice Act 1988, have removed in minimum term cases, consideration of the element of double jeopardy which normally arises on an Attorney-General's Reference. Accordingly, we quash the term of 14 years and we substitute for it a term of 16 years custody. The offender will be credited, as against that figure, with the 1 year and three days which he had spent in custody, in relation to the offence of murder. He will therefore serve a term of 14 years and 362 days instead of the 12 years and 362 days ordered by the judge.