Mayhew, R v [2008] EWCA Crim 2897

Case No 200802894/A6[2008] EWCA Crim 2897
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 24th October 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE MAURICE KAY
MR JUSTICE McCOMBE
MR JUSTICE SWEENEY
Between
R E G I N ACrownv
Between
JOHN MAYHEW
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr J Walker appeared for Appellant
J U D G M E N T
[1]MR JUSTICE McCOMBE: On 7th April 2008 in the Crown at Teesside before His Honour Judge Fox QC, the Recorder of Middlesborough, the present appellant pleaded guilty on rearraignment to an offence of attempted murder. On 2nd May he was sentenced by the judge to 12 years' imprisonment with a direction that 165 days spent in custody on remand should count towards sentence. He now appeals against that sentence by leave of the single judge.[2]The facts can be summarised as follows. The appellant and the victim of the offence, Mrs Ailsa Mayhew, began a relationship in the mid-1980s. They married and had a daughter in 1996. In 1997 the appellant finished work due to health problems and his wife took over as the breadwinner for the household. He did the housework and took care of the daughter. However, when she started school he began to visit public houses with increased frequency, with the obvious results. The relationship with his wife began to deteriorate. He falsely accused her of having an affair. He refused to discuss his drinking problem but she was reluctant to leave him because of his depressive illness.[3]The complainant reported one occasion on which the appellant had been violent and she had left him following which he made an attempt on his own life. Steps were taken to "section" him under the Mental Health Act.[4]The couple split up in mid-2005 and divorced 6 months later. However, Mrs Mayhew arranged a property for him to rent and live in. The appellant found separation very difficult from the outset, frequently ringing the complainant in a drunken state asking to "come home", as he put it.[5]In December 2006 the complainant formed a new relationship. Some months later the appellant discovered about that and confronted the man involved. In the weeks leading up to the offence the appellant made a number of threatening calls to the complainant in which he threatened to harm her.[6]On 17th November, the date of this offence, the complainant drove her daughter, the daughter of the appellant, who was 11 years old at the time to the appellant's home address as had been arranged between them. Soon after that the daughter went upstairs to her room. It was apparent that the appellant had been drinking. As the couple spoke the appellant produced a large knife that he had purchased earlier in the day and thrust it into Mrs Mayhew's chest. He pulled the knife out and struck a second time. At this point the daughter re-entered the room to witness the attack on her mother. She bravely intervened by pulling the appellant away and trying to restrict his breathing. Her mother was able to getaway but in so doing the appellant was still pulling at her hair and lumps of it came out. He lost a grip on the knife in the struggle with his daughter and she threw the knife out of the kitchen door into the driveway. The appellant dragged the victim back and made another attempt to get a second knife from the drawer. Fortunately that attempt failed when the young daughter slammed the drawer shut on his hand. Both the mother and daughter were then able to make their escape. They left the house and summoned medical assistance.[7]The appellant was arrested nearby. His immediate response was:
"I didn't mean to kill her, I should not have done what I did. I just lost the plot. I hope she's okay. What have I done... It's boiled up and boiled up over a year. I'll never see my daughter again. I didn't intend to kill her, I just wanted to stop her going out tonight."
[8]The complainant sustained a wound to the left breast that penetrated the chest cavity, a slash wound across the left breast and a wound to her abdomen. The wounds were analysed as being caused by two blows. The first blow had entered the abdominal cavity and had a depth of 8 centimetres. The second blow was assessed as being delivered with such force that it entered the breast through the top and exited underneath. Hence, the two wounds. This court has had the benefit of the photographs of the wounds taken some time later, after (fortunately) they appear to have healed without complications, but the signs are still visible. The second wound had the depth of 7 centimetres and a width of 3 centimetres. If it had gone deeper it would have entered the chest wall between the fourth and fifth ribs.[9]When interviewed the appellant issued a prepared statement, echoing the remarks that he had made on arrest but thereafter made no comment.[10]The appellant is 49 years old. He had only two previous convictions, one for criminal damage and threatening behaviour in 1986 and a conviction for driving with excess alcohol in 1998. He was treated by the judge in all material respects as a man of good character.[11]There was before the Crown Court a psychiatrist report, stating that the appellant had suffered from depressive episodes and that his depression had been resistant to treatment. He had suffered from Bipolar Affective Disorder in the past but at the time of the offence, the report stated his condition was a milder one of straightforward depression. The conclusion was that the illness did not affect his capacity to form an intent for his action.[12]The pre-sentence report was also available. In that report it was concluded that there was a low risk of re-offending but a high risk of harm to known adults. The reporting officer stated the view that the appellant's thinking and behaviour caused significant concern. As was clear from the facts of the offence the breakdown of his marriage and mental health problems, together with the abuse of alcohol, played a significant part in the offence. It was acknowledged that the appellant was remorseful and had accepted the wholly unacceptable nature of his behaviour.[13]In passing sentence the learned judge did not expressly refer to the dangerousness provisions of the Criminal Justice Act but it is clear he did not consider that a sentence under that sentencing regime was necessary since he passed the determinate sentence to which we have referred. He expressly took into account the remorse that the appellant had expressed, the appellant's good character and his plea of guilty for which, as we have said, he gave full credit.[14]The credit was given although the plea had not been entered until a relatively late stage of the proceedings. The appellant had always acknowledged that he had stabbed the complainant, but the delay resulted from the perfectly proper advice of the need to obtain a psychiatric report on the appellant's capacity to form the necessary intent. The judge stated that this enabled him to give full credit for the plea of guilty. The judge went on to say that it was owing to the courage of the appellant's daughter that the appellant was not answering a murder charge before the Crown Court. He proceeded to pass the sentence of 12 years' imprisonment that we have already mentioned.[15]On the present appeal it is argued that the sentence was manifestly excessive, having regard to the same mitigating factors that the judge himself had identified. We have been helpfully referred by Mr Walker to a number of authorities, which were set out in his advice on this appeal. We have borne in mind the case of R v Ford [2006] 1 Cr App R(S) 204, in which the relationship between sentencing for the full offence of murder and for the attempted offence was examined. In that case it was decided that in cases where the offence would have fallen into one of the higher brackets of seriousness for the full offence as recorded under Schedule 21 to the Criminal Justice Act 2003, sentences for attempted murder are hereafter likely to be higher than before the Act came into force. However, for offences outside those two categories, no general increase in sentence was likely to be required.[16]In the present case we accept Mr Walker's submission that if the offence had led to the death of the complainant and a murder charge, the minimum custodial term would not have fallen to be fixed under the more serious category of offences. The starting point would have been one of 15 years, the equivalent of course a 30 years determinate sentence.[17]The offence might have been aggravated by the premeditation shown in acquiring the knife and bringing it to the scene, although the appellant told the probation officer that he acquired the knife for use in fishing which was one of his hobbies. There would be mitigation, we acknowledge, in the appellant's mental state falling short of a defence to a murder charge.[18]In these circumstance we consider that the earlier cases cited by counsel do afford some continuing assistance to the court in deciding the appropriate sentence in this case. We have considered in particular R v Palmer [2005] 1 Cr App R(S) 604 and R v Ipek [2006] 1 Cr App R(S) 740. Each concerns serious stabbings of a former domestic partner. In Palmer, after a contested trial, a sentence of 12 years' imprisonment was passed. This court reduced that sentence to one of 10 years. In Ipek, following a guilty plea, a sentence of 12 years was also reduced to one of 10 years. It may be the relative gravity of the injuries in the two cases explain the rather different results there to be found.[19]In the present case the stabs were inflicted with severe force and caused significant wounds. The offence was committed in the presence of the 11-year-old daughter who bravely intervened in the violence at some considerable risk to herself. That, in our judgment, is a seriously aggravating feature of this offence. The young girl also prevented the appellant getting hold of a second knife from a drawer after he had been disarmed of the first one.[20]Before us this morning Mr Walker has particularly emphasised the immediate remorse expressed by this appellant of this offence and the fact that this was the "boiling" over of a problem that the appellant had experienced from various factors that we have mentioned. He also points out that the injuries that the victim suffered were fortunately not long lasting in their complication although, as Mr Walker acknowledges, the psychological effect on both victim and the daughter cannot be underestimated.[21]In common with the learned single judge we can see that the level of sentence was severe and that cogent argument against it can properly be advanced, as been so capably done by Mr Walker before us today. However, in our judgment, given all the features of the case which we have endeavoured to describe, we are not persuaded that the sentence was manifestly excessive. Accordingly we dismiss the appeal.