Herbert & Ors, R v [2008] EWCA Crim 2501

[2008] EWCA Crim 2501Case No 2008/02872 A3 (1)2008/02776 A3 (2)2008/02873 A3 (3)2008/02875 A3 (4)2008/02907 A3 (5)
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT PRESTON
HIS HONOUR JUDGE RUSSELL
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 29/10/2008
Before
THE LORD CHIEF JUSTICEMR JUSTICE OWENMR JUSTICE CHRISTOPHER CLARKE
Between
RCrownHerbert (1), Harris (2), Joseph Hulme (3), Danny Hulme (4), and Daniel Mallett (5)Defendant
Mr M.J. Shorrock QC for CrownMr R.L. Marks QC on behalf of HerbertMr A.J. O’Byrne QC on behalf of HarrisMr P.C. Reid QC on behalf of Joseph HulmeMr A. Cross QC on behalf Danny HulmeMr D.T. Fish QC on behalf of Daniel MallettHearing Hearing date: 7 th October 2008
JudgmentThe Lord Chief Justice :
[1]The major responsibility for the preparation of this judgment of the Court was undertaken by Mr Justice Owen. The appeal illustrates the practical application of the principles discussed in R v Height and Anderson, handed down today, immediately before this judgment.[2]On 10 March 2008 the appellants appeared at the Crown Court at Preston on an indictment containing two counts and alleging offences committed on 11 August 2007. On count 1 they were charged with the murder of Sophie Lancaster, and on count 2 with the offence of causing grievous bodily harm with intent to Robert Maltby. On re-arraignment each of the defendants pleaded guilty to count 2 and Herbert pleaded guilty to count 1. The prosecution then offered no evidence on count 1 in respect of Mallett, Danny Hulme and Joseph Hulme, and HHJ Russell QC entered not guilty verdicts. Harris was tried on count 1 and convicted on 27 March.[3]The appellants were sentenced on 28 April 2008. Harris, who was born on 17 June 1992, and who was therefore just 15 at the date of the offences and is now 16, was sentenced on count 1 to be detained during Her Majesty's pleasure with a minimum term of 18 years, less time served on remand. On count 2 the judge imposed a concurrent sentence of detention for life pursuant to section 226 of the Criminal Justice Act 2003 with a minimum term of five years and 10 months less time served on remand.[4]Herbert was born on 3 December 1991. He was 15 at the date of the offences, now 16. On count 1 he was sentenced to be detained during Her Majesty's pleasure with a minimum term of 16 years and 3 months, less time served on remand and on count 2 a concurrent sentence of detention for life under section 226 of the Act with a minimum term of five years and 45 days less time served on remand.[5]Danny Hulme, who was born on 23 December 1991, and was therefore 15 at the date of the offences, now 16, was sentenced to detention for public protection pursuant to section 226 of the Act with a minimum term of five years and ten months less time served on remand.[6]Joseph Hulme, Danny Hulme's brother, was born on 14 September 1990, and was 16 at the time, now 18. Like his brother he was sentenced to detention for public protection with a minimum term of five years and ten months less time served on remand.[7]Mallett, who was born on 13 June 1990, and who was therefore 17 at the date of the offences, now 18, was sentenced to detention for public protection pursuant to section 226 of the Criminal Justice Act 2003 with a minimum term of four years and four months less time spent on remand.[8]They appeal against sentence with the leave of the single judge. The Facts[9]This was an appalling crime, but given the youth of the five appellants, the facts must be set out in some detail. In the early hours of Saturday 11 August 2007 the five appellants, all teenagers from the Bacup area, savagely and mercilessly attacked and beat unconscious a young man called Robert Maltby. When his girlfriend, Sophie Lancaster, intervened, two of the appellants, Herbert and Harris turned on her and subjected her to an equally vicious beating. She suffered serious head injuries, never gained consciousness, and died in hospital 14 days later.[10]Robert Maltby was 21 years of age, Sophie Lancaster 20. They had been together for about 2 years, and had been living together at an address in King Street Bacup for about 6 months. Robert Maltby has no recollection of what happened that night; but it has been possible for the police to piece together their movements leading up to the time at which they were attacked. They spent most of the evening at a friend’s house in Bacup leaving at about 11.40 saying that they were going to walk home. Their route took them past a Total petrol station on Market Street. At the petrol station they fell into conversation with a number of local teenagers who had gathered on the forecourt. The conversation was friendly and good natured; witnesses speak of them handing out cigarettes to the group. The group, including Robert Maltby and Miss Lancaster, then moved on to another location, an area outside the entrance to industrial premises known as the Fudge factory, Park Road. Like the garage forecourt it is a place where local youths congregate. At that stage there was no hint of trouble. After a short period the group moved from Park Road, across a road called New Line and into Stubby Lee Park.[11]There are skate ramps in the park and it was in the vicinity of the skate ramps that the five appellants suddenly and without warning or provocation attacked Robert Maltby. He was brought to the ground by punches and kicks. When on the ground he was kicked viciously to the head and body, and at least one of his assailants stamped on his head. During the attack the appellants goaded each other on saying such things as “watch it” and making noises, as one witness put it, “like it were summat good, like they’d done summat good.” Robert Maltby was defenceless and could make no attempt to defend himself as he was beaten unconscious. However, with remarkable courage Miss Lancaster rushed to give whatever assistance to him she could, and as he lay prone, she cradled her boyfriend’s head in her lap, calling for help and shouting at the appellants to leave him alone. Herbert and Harris turned their attention to her and she, too, was subjected to a sustained and vicious attack which involved kicking and stamping until, she too in her turn, was beaten unconscious.[12]The attacks were witnessed by a number of other teenagers. Many were friends or acquaintances of the appellants, but they nevertheless gave statements to the police. The picture that emerged from their statements was of an unprovoked and sustained assault on Robert Maltby by all five appellants involving punching, kicking and stamping followed by a similar assault on Sophie Lancaster by Herbert and Harris. It would appear that the appellants attacked Mr Maltby, not as a consequence of anything that he had said or done, but simply because he and his girlfriend looked and dressed differently to them. A young man and a young woman encountered Herbert in the immediate aftermath of the incident. He said to them “theres two moshers nearly dead upBacup park.”“Mosher” is apparently a term used to describe those who by virtue of their appearance are known as “Goths”. After that encounter the appellants met up with another young man who described them as behaving “in a giddy way,hyper-active and bouncing around doing silly things, it was as though they were boasting what they had done.” Joseph Hulme said to this young man “we have just beaten someone up. Do you want a phone?” and handed him a mobile telephone that had been taken from Robert Maltby. Herbert then said “you want tosee them they are a right mess.” The others were saying similar things.[13]Two ambulances were sent to the scene. The ambulance technicians found the two victims lying side by side and unconscious. It was obvious that each had been subjected to a very serious assault. Their facial injuries were so dreadful that it was not immediately possible to tell which sex either casualty was. They were taken to Rochdale Infirmary. On admission Robert Maltby was agitated, with a Glasgow coma scale of 3. He was sedated, paralysed, incubated and ventilated. A CT scan showed blood around the brain tissue in the right parietal area of the brain. He was then transferred to the intensive care unit at North Manchester hospital where a further CT scan on the following day showed that the subarachnoid blood collection was resolving. By 13 August he was weaned from the ventilator, and on 16 August was transferred to a general ward. He was discharged from hospital on 24 August. In his case there were 22 sites of injury. They consisted of extensive facial injury in the form of multiple bruises, abrasions and severe swelling.[14]On admission Sophie Lancaster had a Glasgow Coma scale of 3 – 4. She too was admitted to intensive care, but died on 24 August never having regained consciousness. She was found to have 17 separate areas of injury to her head and body. They were of a very similar nature to those sustained by Robert Maltby. As in his case the principal target had been her head.[15]Herbert, Harris and Mallett were arrested on 11 August and the Hulme brothers on the following day, 12 August. Herbert was interviewed once on 11 August and twice on 12 August. In his first interview he admitted being in the park when the incident took place, but denied being involved in the assaults. He declined to answer questions in the second and third interviews. Similarly Harris was interviewed on 11 and 12 August. In his first interview he read out a prepared statement in which he admitted being at the skate ramps with the four other appellants. He admitted having struck the first blow by hitting Robert Maltby, saying that he did not know why, but was drunk and was showing off. He said that so far as he could recall he had no further involvement in the assaults. Joseph Hulme was interviewed three times on 12 August. In the first interview he denied that he had been in the park at all claiming that he had been elsewhere with his brother. In the second and third, he admitted being there, but denied taking part in any assault. Danny Hulme was interviewed twice on 12 August. In both interviews he admitted being in the park at the material time, but said that he had not hit either of the victims. Mallett was interviewed on 11 and 12 August. He admitted being involved in the assault on Robert Maltby claiming that he had hit him once with a clenched fist when he was still standing up.[16]After Sophie Lancaster died each defendant was re-arrested and further interviewed. Herbert declined to answer any questions put to him. Harris repeated the account that he had given in the earlier interviews.[17]We have seen the Victim Impact Statements that were before HHJ Russell QC. Sophie Lancaster’s mother speaks in deeply moving terms about her daughter, of the horror of seeing her in hospital, of her daughter dying in her arms when the life support system was turned of, and of the void in her life and the life of her family that will never be filled. She tells how Sophie’s family and friends have established a charity, with the acronym SOPHIE, standing for Stamp Out Prejudice, Hatred and Intolerance Everywhere, in the hope that something positive may come of this terrible tragedy. Robert Maltby and his mother speak of the devastating effect of attack on him. They too speak movingly of the intense difficulty of coming to terms with the consequences of such chilling, random and mindless brutality. On 7 October 2008 Mrs Maltby made a further statement. Sadly it revealed that Robert Maltby has failed to make the physical and mental recovery that had been hoped for at an earlier stage. She says:
“Physically he suffers from poor short term memory and becomes very uncoordinated when tired. His balance is also poor when he is tired. Robert’s main problem is psychological. He has virtually become a recluse and will not leave our home unless absolutely necessary. He is currently undergoing treatment for the serious psychiatric disorder caused by the injuries sustained on 11 August 2007.”
The appeals[18]We propose first to address the issues in relation to count 1 that arise in both the cases of Harris and Herbert, then to consider the issues common to the appellants in relation to count 2. Count 1[19]In setting the minimum term to be served by Harris and Herbert before they can be considered for release on parole, the judge took as his starting point the period of 12 years indicated by schedule 21 of the Criminal Justice Act 2003. Having taken account of the aggravating features, he arrived at a minimum term of 18 years. In the case of Herbert he gave a further discount of one year 9 months to reflect both his plea of guilty to murder and a degree of remorse. It is submitted on behalf of both Harris and Herbert that the judge erred in setting the minimum term at 18 years less the periods served on remand and, in the case of Herbert, less the further discount.[20]In setting the minimum term the judge took account of a number of serious aggravating features, most of which applied both to the offence of murder under count 1, and to the offence of causing grievous bodily harm with intent under count 2, and which he summarised in the course of his meticulous and carefully reasoned sentencing observations:
“I am satisfied that the only reason for this wholly unprovoked attack, was that Robert Maltby and Sophie Lancaster were singled out for their appearance alone because they looked and dressed differently from you and your friends. I regard this as a serious aggravating feature of this case, which is to be equated with other hate crimes such as those where people of different races, religions, or sexual orientation are attacked because they are different. This aggravating feature applies to all of you and I add that the courts are perfectly capable of recognising and taking account of such aggravating features without the necessity of Parliament enacting legislation to instruct us to do so. Further, the extent of the violence in this case although, no weapons were used, is every bit as bad as if weapons had been used. Indeed, because you were wearing ordinary footwear, in the form of trainers, the extent of the injuries shows how much physical force was applied. The brutality of the violence, and the fact that it was so direct reveals a degree of intention to hurt and cause serious injury and pain, which verges on cruel and sadistic behaviour, which, most stabbings and shootings, whether resulting in death or serious injury do not involve. This is also an aggravating feature which applies to all of you. The fact that in the case of Robert Maltby, five of you attacked him and that then when he was unconscious, two of you killed Sophie Lancaster, when each of them was completely defenceless and when Sophie Lancaster was trying to assist her boyfriend with his head in her lap, is also an aggravating feature. There were two victims here, both of whom were unsuspecting and vulnerable. Your numbers overwhelmed them and reveal you to be cowards of the worst kind. This factor applies to all of you in the sense that five of you attacked Robert Maltby with overwhelming odds and additionally to the two of you who killed Sophie Lancaster because the fact that you attacked two victims must be reflected in the sentence. A fact I have to take account of as a mitigating factor is your ages and apart from your pleas of guilty and in some cases the absence of previous convictions which I shall deal with shortly, it is the only mitigating feature in this case. You Brendan Harris, are still only 15, nearly 16, Brian Herbert and Danny Hulme, you are both 16 and you Joseph Hulme and Danny Mallett are 17. You were all roaming the streets of Bacup late at night, drinking to excess. You were obviously out of control. Although young in years and very immature in certain respects, in others your behaviour was not that of children your age but very aggressive, intolerant and callous and violent, which means, in my judgment, that you should not be treated as children. Similarly the lack of previous convictions in the cases of you Danny Hulme and you Daniel Mallett, and the lack of any conviction of violence in your case Joseph Hulme, is of less significance that might otherwise be the case because of the extreme nature of the violence that you were prepared to become involved in. You will of course, receive considerably less a sentence than your friends who are to be sentenced for murder. In your cases, Ryan Herbert and Brendan Harris, you have each been previously convicted of an offence of violence, committed in the same area and involving kicking although, fortunately, with nothing like the consequences. This is an aggravating feature and shows how violent and out of control you were despite your youth. I have read with care the detailed pre-sentence reports prepared upon each of you and the two psychological reports upon you Ryan Herbert. I have also read the various letters and character references submitted on your behalf. It has to be said that your actions on this night are so far removed from the pictures that emerge of your character from those references, that I can only conclude that, when fuelled up with drink and in a gang of like-minded youths, the pack mentality took over. This means that you are unpredictable, which is worrying for the future.”
[21]It is submitted on behalf of Harris and Herbert that the judge erred in a number of respects in his approach to setting the minimum term. First he is said to have been in error in expressing the view that had the appellants had been over 18, the starting point under schedule 21 would have been 30 years. It is argued on their behalf that the case does not fall within the categories identified in paragraph 5(2) of schedule 21. It is correct that the case does not strictly fall within any of sub-paragraphs (a) to (h). But, as explained in R v Height and Anderson,the categories of offence described in paragraph 5(2) are not exhaustive.[22]The question for the judge under paragraph 5(1) is whether the seriousness of the offence, or the combination of the offence with one or more offences associated with it, is particularly high. Consideration of that question will be illuminated by the categories set out in paragraph 5(2), but it does not follow from the fact that a case does not fall within one of those categories, that the seriousness of the offence is not particularly high. (See R v Height and Anderson, referred to earlier).[23]It is clear that the judge took the view that the seriousness of the case was particularly high. He did so with the benefit of having heard evidence at the trial of Harris. As he observed, first, the attack on Robert Maltby made the case very close to a double murder. Second he considered that Robert Maltby and Sophie Lancaster were singled out because of their appearance and the way that they chose to dress, and that that made the case analogous to those in which victims are targeted by virtue of their race, religion or sexual orientation. As he put it “this was a hate crime against these completely harmless people who were targeted because their appearance was different” Third, he took the view that the brutality of the attack on Sophie Lancaster as she cradled Robert Maltby's head in her lap verged on cruel and sadistic behaviour. In our judgment the judge was not only entitled, but fully justified in the view that he took of each of those features of the case, and in his conclusion that looked at over all, the offence was so serious that had the appellants been over the age of 18, it would have been appropriate to take a starting point of 30 years.[24]It is next submitted that the judge erred in his view that in relation to count 1 the only mitigation, save for the additional considerations that applied in the case of Herbert, was the age of the appellants. Counsel argued that two of the mitigating factors identified in paragraph 11 of schedule 21 were present, namely an intention to cause serious bodily harm rather than to kill, and secondly a lack of premeditation. The judge dealt with the first in the following terms – “It is submitted that the case should be treated as one with the intention to cause grievous bodily harm, rather than to kill. Given the savagery of the attack it must make very little difference in the particular circumstances of this case but even approaching the case on that basis because of the aggravating factors and the horrific facts of this case … …”[25]It is clear that the judge took into account that even if an intention to kill was not proved, in the light of the savagery of the attack, that afforded little mitigation. In our judgment his approach cannot be faulted.[26]The judge did not make express reference to a lack of premeditation, but there is nothing in his sentencing observations to suggest that he approached the sentencing exercise on the basis that the appellants had set out that evening with the intention of making a random attack on innocent victims such as Sophie Lancaster and Robert Maltby. On the contrary, his sentencing observations underlined the unpredictable nature of the appellants’ behaviour, which clearly indicates that he was approaching the case on the basis that the attack was not premeditated.[27]The third argument advanced in relation to the minimum term is that the judge failed to make proper allowance for the age of the appellants. It was submitted that he erred in approaching the sentencing exercise upon the basis that the appellant should not be treated as children. That is a point to which we shall return in relation to the sentences imposed on count 2 of the indictment; but so far as count 1 is concerned the judge specifically took as his starting point the indicative period set out in schedule 21 for those under the age of 18, and then concluded that the aggravating features outweighed any mitigation, by which he had in mind the age of the appellants, by a significant degree. In our judgment there is no basis for the argument that he failed to make a proper allowance for the age of the appellants in setting the minimum term.[28]We are therefore satisfied that, even with offenders as young as these when they committed this murder, in the horrific circumstances, a minimum term of 18 years was fully justified.[29]We shall return to the issue of whether sufficient credit was given to Herbert for his plea of guilty. Count 2[30]Two issues arise about the sentences imposed on count 2. First it is submitted that the judge erred in his conclusion that Mallett, Danny Hulme and Joseph Hulme fell within the dangerous offender provisions contained in section 226 of the Criminal Justice Act 2003, Secondly it is submitted that minimum terms based on a notional determinate sentence of 13 years were manifestly excessive, a point also taken on behalf of Harris. The Dangerous Offender issue[31]The judge addressed the issue in the following terms – “I also have to consider whether you fall within the dangerous offender provisions of the Criminal Justice Act 2003. In deciding whether an offender is dangerous, the first thing the court must do is to take into account all the circumstances of the offence: The circumstances of this offence are such that they speak for themselves. Anyone who can act as you five did, must be regarded as a danger to the public. Without the slightest degree of provocation, forming the intention to cause really serious injury and then carrying it out by repeated kicking, stamping and punching, acting as a group to overwhelm by force and numbers a defenceless victim, indicates that you are all dangerous, even without previous convictions, in some cases. Any other conclusion flies in the case of common sense. Further, Joseph Hulme, and despite your lack of previous convictions, Danny Hulme and Daniel Mallett, the fact that you are dangerous is shown by the fact that each of you was prepared to join in an attack upon a helpless victim. The pack mentality that you displayed is regrettably a feature of some young defendants, who come before the courts and who individually may have positive good qualities but in certain circumstances, buoyed up by the conduct of others, that pack mentality can take over. You have displayed that characteristic in this case, which, in my judgment must render you a serious danger to the public, and until the authorities are satisfied that you no longer have that tendency in your character. Accordingly an indefinite sentence is necessary to ensure the continuing protection of the public, from you. I have come to the conclusion that you all represent a danger to the public, in that there is a significant risk of your committing further serious specified offences and that there is a significant risk of serious harm to the public from your so doing. Again in regard to these risks, in my judgment, the facts speak for themselves and the same considerations to which I have just referred apply. It is also clear that you have no moral boundaries, which would enable you to control yourselves. Until the authorities can be satisfied that you no longer pose a risk, the public must be protected from you. I reject the assessments, using the assessment tools, that you pose low or medium risks. The test is, in any event, whether there is a significant risk and I am quite satisfied, for the reasons I have given, that there is such a risk, even in the absence, in some cases, of previous convictions for violence. The fact is, that had each of you been assessed before last August, the assessment would have been that you posed a low risk but the events of the 9 and 10 August have proved otherwise.” Accordingly an indefinite sentence is necessary to ensure the continuing protection of the public, from you. I have come to the conclusion that you all represent a danger to the public, in that there is a significant risk of your committing further serious specified offences and that there is a significant risk of serious harm to the public from your so doing. Again in regard to these risks, in my judgment, the facts speak for themselves and the same considerations to which I have just referred apply. It is also clear that you have no moral boundaries, which would enable you to control yourselves. Until the authorities can be satisfied that you no longer pose a risk, the public must be protected from you. I reject the assessments, using the assessment tools, that you pose low or medium risks. The test is, in any event, whether there is a significant risk and I am quite satisfied, for the reasons I have given, that there is such a risk, even in the absence, in some cases, of previous convictions for violence. The fact is, that had each of you been assessed before last August, the assessment would have been that you posed a low risk but the events of the 9 and 10 August have proved otherwise.”[32]It is submitted that the judge erred in holding that Mallett, and Danny and Joseph Hulme presented a significant risk to members of the public of serious harm occasioned by the commission of further specified offences, and in particular that he failed to pay any or any proper regard to the conclusions drawn by the authors of the pre-sentence reports as to the risk that they presented. It is also submitted that the judge erred in failing to consider whether under section 226 (3) an extended sentence would be adequate for the purpose of protecting the public.[33]There were no previous convictions recorded against either Mallett or Danny Hulme. Each produced a substantial number of testimonials attesting to their positive good character. The authors of the PSR’s prepared in their cases carried out an assessment of the risk of their re-offending by means of the Youth Justice Board’s assessment tools, ASSET and the Risk of Serious Harm ASSET. In both cases the authors concluded that they were low risk offenders. In the case of Joseph Hulme the ASSET assessment was that he was a medium risk offender, having previously been made the subject of a referral order for an offence of witness intimidation. But the author of the PSR in his case expressed the view that he was unlikely to commit another specified offence, a conclusion that was supported by a report from a consultant psychiatrist dated October 2008. A number of impressive character references were also put before the judge in his case.[34]It is submitted that the judge erred in rejecting those assessments of risk, in disregarding the views expressed by the probation officers who had reported on the appellants, and in arriving at the conclusion that each presented a significant risk to members of the public of serious harm occasioned by the commission by them of further specified offences simply by reference to the facts of this case. We do not agree. These appellants committed this horrific attack notwithstanding that two were of previous good character, and the third had not been convicted of any offence of violence. As the judge observed in passing sentence, a risk assessment carried out immediately before this attack would have resulted in a finding that they were at low risk of offending; but their violent and vicious behaviour that night proved otherwise. We do not find any basis upon which to interfere with the judge’s conclusion that the dangerous offender provisions applied.[35]It is then necessary to consider the argument to which subsection 226(3) gives rise, namely whether an extended sentence under section 228 would have been adequate for the purpose of protecting the public from serious harm occasioned by the commission of further specified offences. The judge said that he had “considered and rejected as being inadequate, whether I should pass an extended sentence in any of your cases.” The reason why he rejected the imposition of extended sentences is clear from his sentencing observations. He did not think that such sentences it would be adequate for the purpose of protecting the public, hence his repeated reference to the necessity for the appellants to be detained until the authorities are satisfied that they no longer present a risk. Neither his reasoning nor his conclusion can be faulted. The minimum term[36]In setting the notional determinate sentence the judge had regard to the guidelines laid down by the Sentencing Guidelines Council for assault and other offences against the person. He approached the case as if it was in the highest category for section 18 offences under the guidelines, namely cases in which “victim suffered life-threatening injury or particularly grave injury from a pre-meditated wounding or GBH involving the use of a weapon acquired prior to the offence and carried to the scene with specific intent to injure the victim”. The recommended starting point for cases falling within that category is 13 years, with a sentencing range of 10 – 16 years. The next category down is intended to assist with the approach to cases where the “victim suffered life-threatening injury or particularly grave injury (where the offence was not premeditated)” It is submitted that the judge fell into error in two respects, first in placing the case in the highest category rather than the next category down, and secondly in failing to take any or any adequate account of the age of the appellants.

Judge Russell said:

“This is the worst case of causing grievous bodily harm with intent by kicking that I have come across in 30 years practice as a criminal barrister and in my career as a judge.”
[38]That observation carries considerable weight, coming as it does from a well respected and highly experienced judge. There can be no criticism of his having taken an extremely serious view of the offence. He fully explained his reasons. Even a definitive sentencing guideline is not to be used or approached as if each offence can be put into fixed and inflexible compartments. The assessment of the seriousness of this offence involved a broad judgment of the overall criminality. (R v Height and Anderson) We are satisfied that the aggravating features identified by the judge were such that he was fully justified in placing the case within the highest category, and at the top of the range suggested in the guidelines. By way of emphasis, we record that although these appellants were not convicted of criminal involvement in the death of Sophie Lancaster, the attack on her, and her subsequent death, both followed directly from the merciless attack on Robert Maltby in which these appellants were personally involved and her courageous effort to defend him from it and offer him immediate succour.[39]It is next necessary to consider whether the judge failed to take any or any proper account of the age of the appellants, bearing in mind that the guideline is directed to the sentencing of those over the age of 18. The judge said: “Although young in years and immature in certain respects, in others your behaviour was not that of children of your age but very aggressive, intolerant and callous and violent, which means, in my judgment, that you should not be treated as children”.[40]Counsel for the appellants argue that that passage indicates that the judge fell into error by treating them as adults. But it is clear from his sentencing observations that notwithstanding that passage, he did reduce the notional determinate sentence to reflect their age. Having placed the offence at the top of the range, he reduced the notional determinate sentence to 13 to reflect their youth. In the particular circumstance of this case, we consider that such a reduction was appropriate, and cannot be said to have resulted in a minimum term set at a manifestly excessive level.[41]Two further arguments are advanced on behalf of the three appellants who pleaded guilty only to count two, namely that in the light of the positive evidence as to their good character, unblemished in the case of Mallett and Danny Hulme, and in the case of Joseph Hulme blemished by two relatively minor matters recorded against him, warranted a lesser minimum term. It is clear that the judge took the view that such personal mitigation was far outweighed by the aggravating features of the attack on Robert Maltby. We agree.[42]It is next submitted that the judge was unfair to dismiss their expressions of remorse as hollow. As to that the judge said - “You have shown, in my judgment, little genuine shame, or remorse for your actions and I regard the sentiments of regret, that you have sought to put forward to the youth offending team and through your counsel, as hollow, when put into the overall context to this case, which included your subsequent behaviour on the night … …”. The judge was able to assess the appellants as they appeared before him. We can see no basis for interfering with his assessment.[43]Finally, it is suggested on behalf of Joseph and Danny Hulme that an insufficient discount was allowed for the guilty pleas. The suggestion is that these three appellants would have been willing to plead earlier, and told the prosecution so. However the intimation was made subject to the condition that the prosecution would simultaneously accept that the murder charge in count 1 would not be pursued against them. In short, these were tactical decisions and the appellants were not prepared to and certainly did not plead to count 2 until the date of trial. The judge allowed a full discount to Mallett because he had admitted his guilt in his defence statement and the Crown accepted that the plea was to be entered in any event. That could not be said about either of the Hulmes. As we shall see, in the context of Herbert’s appeal, the judge was well aware that the purpose behind the discount was to secure pleas of guilty “for economic reasons”. Again, as we shall see, normally speaking the discount is assessed as at the date when the guilty plea is entered. The judge was, of course, entitled to make an exception where, in his judgment, as in the case of Mallett, this was justified. That said, we emphasise that normally the full discount for a guilty plea should be withheld if the judge is satisfied that it has not been publicly tendered for tactical reasons, in the hope of obtaining a forensic advantage. We can see no basis for adding to the discount which the judge allowed these appellants. Ryan Herbert[44]The final issue, which arises in the case of Herbert, is whether he was given sufficient credit for his plea of guilty. The judge reduced the minimum term set in relation to count 1 by 5% to reflect the fact that he had pleaded guilty on the day of the trial. He made a further reduction to reflect the fact that the appellant had not sought to minimise his part in the way that others had, and had shown a degree of recognition of the consequences of his crimes.[45]The Sentencing Guidelines Council’s Definitive Guideline on the Reduction in Sentence for a Guilty Plea, as revised in 2007, provides that in sentencing for murder, the maximum reduction for a plea at the first reasonable opportunity will not exceed 1/6 or five years whichever is the lesser, with a recommended 5% for a late guilty plea. The judge approached the case on the basis that the appellant was only entitled to the 5% discount as his plea, in common with those of his co-defendants, was entered on the day of trial. It is however submitted that the discount should have been greater for the following reasons.[46]In his interview by the police the appellant admitted presence at the park at the time of the incident but denied any involvement. But thereafter, as was apparently explained to the judge in mitigation by his counsel Mr Marks QC, the appellant admitted to his solicitor that he had been involved in the attacks upon both Sophie Lancaster and Robert Maltby, and these admissions were incorporated in his defence statement. At the pre-trial review held on 22 February 2008 Mr Marks informed the judge that his instructing solicitor had become concerned about the difficulties that she was experiencing in obtaining instructions from the appellant, and in consequence had instructed a clinical psychologist to examine him. As a result of the provisional view formed by the psychologist about the appellant’s capacity to form the intent necessary for murder, it was decided to instruct a psychiatrist to report. Mr Marks conceded that such inquiries were undertaken late in the day, albeit that that was due in part to the considerable difficulties experienced by his instructing solicitor in gaining access to the appellant in custody. In the event the psychiatric report was not available to the defence until the day of trial. It revealed a disagreement between the psychologist and the psychiatrist as to the appellant’s capacity to appreciate the consequence of his actions. The view expressed by the consultant psychiatrist prevailed; and following a lengthy conference at court, the appellant was advised to plead guilty to murder. It is submitted that bearing in mind in particular the age of an appellant facing so grave a charge, it was both necessary and proper for such an investigation to be carried out; and that in consequence it was not right for the judge to state that the plea could have been entered at a much earlier stage, and for the discount to remain at the minimum level.[47]There is force in this submission. By his defence case statement the appellant admitted being involved in the attack on Sophie Lancaster, and he conceded that he had kicked her. In those circumstances he was admitting that he was guilty at least of manslaughter and that he was personally and directly involved in the attack on her. In our judgment his legal advisers were justified in seeking a second, psychiatric opinion about the mental capacity of this particular young client, before they could advise him whether to plead guilty to murder. And it was to his credit that he accepted this advice and did not seek to run any form of defence based on the psychologists’ reservations about his capacity to form the necessary intentions. In some ways he was in a similar position to Mallett in respect of count 2. Mallett intimated an intention to plead guilty to count 2 but it was not entered at an early stage in the proceedings and his admission of guilt was made in his defence statement. In these circumstances the reduction of 5% to reflect the guilty plea, together with an additional allowance for the fact that this appellant had not sought to minimise his part in the way others had, and that unlike them he had shown an element of remorse, was not fully reflected in the difference in the minimum term imposed on him and that on Harris. In our judgment, the allowance for the guilty plea should have been somewhat higher than it was. We are acutely conscious that a reduction of 9 months in the minimum term (which we think appropriate) might appear to represent tinkering with the overall sentence. We have taken this course because we are conscious, as we have been throughout the hearing of the appeals, and our reflections on it, of the youth of this and indeed all the other appellants. The minimum term to be served by Herbert will be 15 years 6 months rather than 16 years 3 months (less the days served on remand). The sentence of detention during Her Majesty’s pleasure is unaffected. Conclusion[48]The appeals of Harris, Mallett, Danny Hulme and Joseph Hulme will be dismissed. The appeal of Herbert will be allowed to the very limited extent indicated.