Samuel, R. v [2007] EWCA Crim 1954

Case No 200701815/A7[2007] EWCA Crim 1954
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of Justice, Strand London WC2Date Monday, 16th July 2007
B E F O R E:
LORD JUSTICE LATHAM
(VICE PRESIDENT OF THE CACD)
MR JUSTICE GRIFFITH WILLIAMS
MR JUSTICE KING
Between
R E G I N ACrown-v-
Between
PERRY SAMUEL
Computer Aided Transcript of the Stenograph Notes ofA Merrill Communications CompanySmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR S MINTZ appeared for APPELLANTMR K SCHOLZ appeared for CROWN
J U D G M E N T
[1]MR JUSTICE GRIFFITH WILLIAMS: On 9th March 2007 in the Crown Court at Mold Perry Samuel, the appellant, pleaded guilty to the murder of his 5-year-old daughter, Caitlin, and 3-year-old son, Thomas. He was sentenced by His Honour Judge Rogers QC to concurrent sentences of life imprisonment, with a specified minimum term of 35 years, less the 120 days he had spent on remand in custody. He appeals against the length of the minimum term by leave of the Single Judge.[2]The appellant, who was 35 years old, his partner, Sarah Graham, who was 23 years old and their two children lived at an address in Bodelwyddan. On 5th November 2006 Miss Graham left the children in the care of the appellant, as she had many times before, to go to a concert in Manchester. Just before 11.00 pm police officers were called to the house as a result of somewhat bizarre telephone calls made by the appellant, in which he made oblique references to some possible problem with the children. When the police officers arrived, they were met at the front door by the appellant, whom they described as being somewhat distant in manner. When asked what the problem was, he told them that the children were upstairs. So it was the police officers found both the children naked and largely submerged in a bath about three-quarters full of water. Attempts to revive both children failed and the appellant, when asked to explain what had happened, said that they had been in the bath at about 9 o'clock that evening but he added the words: "I've done it" and so he was arrested and taken to the police station. At that stage he claimed he had no further memory of what had occurred so far as the children were concerned.[3]A postmortem examination revealed that both children had died by reason of asphyxiation, produced by manual occlusion to the external airways with probable neck compressions in the case of Caitlin. The mechanism was almost certainly the use of a hand or hands over the mouth and nose to prevent breathing. The pathologist considered that the likely time of death was between 8.00 and 9.30 pm that evening.[4]When the appellant was interviewed on 6th November, the account he gave was of running the bath for the children, of the children undressing and getting into bath. He said he then went downstairs to make himself a cup of tea and stood by the front door smoking a cigarette from where he could hear the children splashing about upstairs. He said he went back upstairs and everything went "whacko". He said he could recall kneeling or crouching by the bath and staring at the bathroom wall. He felt as though his head was going to explode. He realised that his jumper was wet and so he removed it and with that he said the children were under the water. He told the police he had no idea how they came to be like that. He was too scared to touch them and he went downstairs and telephoned the police.[5]Interviewed the following day, on 7th November, he denied consistently the possibility that he had strangled or asphyxiated the children and maintained his account of some event happening in the bath but claimed he had no detail memory of it. He was then asked about a statement which had been obtained from Miss Graham, in which she described having telephoned the house that evening to find out if everything was well with the children when the appellant's last words to her were "you don't love me". Asked about the relationship, he described how he became depressed following their separation in February 2006 and on learning of her apparent association with another man. He said that by the time they had resumed their relationship in July 2006, he believed she was no longer seeing the other man but he acknowledged he did check entries on her mobile telephone during the week before 5th November, and he claimed to have seen a text from another man which seemed to refer to his partner attending a concert in Manchester perhaps with that other man. He went on to admit it had crossed his mind that this man was with his partner that evening. When the police put it to him that this was his motive, this is why he had done what he had done to the children, to get back at his partner, he denied that was so. He denied he had done anything to exact some revenge involving the children.[6]The partner, in a statement made subsequently, confirmed that the appellant had indeed seen that text message. It was from another man and she said that following that text message his attitude towards her became more aggressive, although his attitude towards the children remained very much the same.[7]The prosecution case was that the only explanation for these murders was that the appellant must have been exacting some revenge against his partner. In opening the case on behalf of the Crown, Mr Elias QC said that the prosecution felt that they should say that the whole of the evidence in the case was very much to the effect that those who had seen the appellant with his children, over a period of years, described him as both devoted to them and in every respect apparently a model father. That was certainly the view of his partner, Miss Graham.[8]There was a victim impact statement before the court. We consider it unnecessary to refer to that in any detail. Miss Graham explained, as one would expect, the devastating effects upon her of the loss of her two children.[9]Passing sentence the learned

judge said this:

"The aggravating features are two-fold. Firstly, because of their ages they were not only vulnerable but they were quite defenceless, and secondly, you abused the most important position of trust, that of a father for his children. I look for mitigating features. I bear in mind you have pleaded guilty and I accept that you have a mental history which may provide some explanation for your actions although I believe that your motivation was simply malice, malice towards these children's mother."
[10]On behalf of the appellant Mr Mintz submitted that the minimum term is excessive and does not reflect the lack of premeditation, the pleas of guilty and the appellant's history of mental health difficulties.[11]There was a psychiatric report dated 29th January 2007 before the court. It detailed the appellant's past psychiatric history. His first contact with the psychiatric services was in March 1998, when he was still a single man and living alone. He presented then with manic symptoms and was diagnosed with Bipolar Affective Disorder. There then followed a number of admissions, following both hypermanic and manic depressive episodes which included certainly two admissions under section 3 of the Mental Health Act 1983. His last admission was in April 2006, some months before the murder.[12]While none of the criteria for a defence of diminished responsibility were met the appellant's mental history was clearly relevant.[13]Mr Mintz accepts that the starting point in this case had to be 30-years in accordance with the provisions of paragraph 21 of the Criminal Justice Act 2003 and he accepts that the learned judge correctly identified the two aggravating factors to which we have referred. But his submission is that the learned judge seems to have made only a passing reference to the appellant's mental history and said nothing about the lack of premeditation.[14]In the judgment of this Court, the appellant's mental history was an important factor, as was the lack of premeditation and we consider that the minimum term of 35 years was too long. We consider that the aggravating and the mitigating factors in this case balance themselves. Accordingly, in the view of this Court the minimum term should be one of 30 years in respect of both sentences. To that extent and that extent alone the appeal succeeds. The time spent on remand in custody will, of course, count towards those minimum terms.