Kelly v R. [2011] EWCA Crim 1462

[2011] EWCA Crim 1462

Case No 2011/01099/A1 (1); 2011/00924/A6 (2);

2011/00034/A6 (3); 2011/00894/A8 (4);

2011/01232/A8 (5); 2011/01661/A8 (6);

2011/01463/A8 (7); 2011/01060/A8 (8).

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM:

THE CROWN COURT AT GUILDFORD (H.H. Judge Critchlow) T20107117

THE CROWN COURT AT NORWICH (H.H. Judge Jacobs) T20107144

THE CENTRAL CRIMINAL COURT (The Recorder of London) T20107142

THE CROWN COURT AT MOLD (Griffith-Williams J) T20107163

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 16/06/2011

Before

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

LORD JUSTICE LEVESON

MR JUSTICE BEAN

Between

MARLON KELLY (1)Appellant

S Wass QC for Kelly

M Clare for Bowers

J Cole for Singh

S Mintz for Harding

D Travers for Roberts

D J Bould for Ashleigh Robinson

E M Evans QC for Hollie Robinson

S Medland QC for Barr

A Edis QC and C Harris for Crown

Hearing Hearing date : 12 th May 2011

Judgment

The Lord Chief Justice of England and Wales:

[1]The appeal of Balraj Singh, brought with leave of a single judge and the remaining cases, all applications referred to the Court of Appeal by the Registrar of Criminal Appeals, were linked and were listed for hearing on the same occasion. Each of them raised questions about the determination of the minimum term to be served following conviction for murder committed with a knife. In short, therefore, the court was required to examine the ambit and impact of the Criminal Justice Act 2003 (Mandatory Life Sentence: Determination of Minimum Term) (Order) 2010 (“the Order”). At the conclusion of the hearing, the appeal was dismissed and the applications were refused. Each member of the court has contributed to the preparation of this judgment.

The Approach to the Legislation

[2]The Order amended Schedule 21 of the Criminal Justice Act 2003 (the 2003 Act). After paragraph 5 a new paragraph was inserted. This provides:

“5A – (1) If – (a) the case does not fall within paragraph 4(1) or 5(1), (b) the offence falls within sub-paragraph (2), and (c) the offender was aged 18 or over when the offender who committed the offence, (d) the offence is normally to be regarded as sufficiently serious for the appropriate starting point, in determining the minimum term, to be 25 years. (2) The offence falls within this sub-paragraph if the offender took a knife or other weapon to the scene intending to – (a) commit any offence, or (b) have it available to use as a weapon, (c) and used that knife or other weapon when committing the murder.” (a) commit any offence, or (b) have it available to use as a weapon, (c) and used that knife or other weapon when committing the murder.”

[3]Before examining the terms of the Order we must briefly remind ourselves of its context, and the authorities in this court which have interpreted Schedule 21.

[4]Section 269(5) of the 2003 Act requires the court determining the minimum term in relation to the mandatory life sentence for murder to 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.”

[5]In short, therefore, paragraph 5A now represents another “general principle” to which the court must have regard when making the determination. The structure of Schedule 21 of the Act (identified in a series of judgments of the Court of Appeal Criminal Division) requires the starting point for the assessment of the minimum terms for adults convicted of murder to be identified by reference to murders of exceptional seriousness (full life); of particularly high seriousness (30 years); and murders where the seriousness is neither exceptional nor particularly high (15 years). Cases which would normally fall within the exceptional and particularly high levels of seriousness are listed and exemplified in paragraphs 4 and 5 respectively. Nevertheless these lists do not create impenetrable compartments and every case will be subject to its own specific and individual features of mitigation and aggravation. Therefore cases which are not expressly described in paragraphs 4 and 5 may be treated as cases of exceptional or particularly high seriousness, and cases which on their face appear to fall within one or other of the paragraphs may, on examination, be assessed at a lower level of seriousness than at first appeared. Precisely the same considerations apply to murders committed by offenders aged under 18 years for whom the starting point would normally be 12 years. These principles are clear from authorities such as R v. Last

[2005] 2 Cr App R (S) 381

, R v Peters

[2005] 2 Cr App R (S) 627

, R v Jones

[2006] 2 Cr App R (S) 12

, R v Height and Anderson

[2009] 1 Cr App R (S) 656

, R v M, AM and Kika

[2010] 2 Cr App R (S) 117

and R v Inglis

[2010] EWCA Crim 2637

[6]Thus in Height and Anderson the court observed (at para. 29):

“We have lost count of the number of times when this court has emphasised that these provisions not intended to be applied inflexibly. Indeed, in our judgment, an inflexible approach would be inconsistent with the terms of the statutory framework. No scheme or guidance or statutory framework can be fully comprehensive, and any system of purported compartmentalisation or prescription has the potential to produce injustice. Even when the approach to the sentencing decision is laid down in an apparently detailed, and on the face of it, intentionally comprehensive scheme, the sentencing judge must achieve a just result.”

[7]In Inglis, a case of murder committed as a “mercy killing” where the offender was the victim’s mother and in a position of trust, and carefully planned the killing of her particularly vulnerable son (all features of aggravation) the court was satisfied that, notwithstanding that these facts would normally aggravate the offence of murder, they should not: “… be taken to aggravate a murder committed by an individual who genuinely believes that her actions in bringing about the death constitute as act of mercy” (paragraph 53).

[8]In the context of murder committed with a knife before the coming into force of paragraph 5A of schedule 21, in M, AM and Kika the court had already emphasised (at para 7):

“… [I]t is always an aggravating feature of any case involving injury – and of course death – that the injury or death has resulted from the use of a knife or any other weapon. … The question for the sentencing judge in the end is not for compartmentalisation of the specific offence within this or that paragraph of the Schedule but the proper judicial assessment of the appropriate sentence to reflect the facts of the individual case and its seriousness and such mitigating features as there may be. Justice simply cannot be done by a mechanistic filling in of “tick boxes” and unconsidered assignment of cases into compartments. … Deaths in circumstances like these outrage and horrify the collective conscience of the community as a whole. We repeat…anyone who goes into a public place armed with a knife or any other weapon and uses it to kill… and who is brought to justice, must anticipate condign punishment.”

[9]These observations illustrate the way in which this court addressed what, at first sight, appeared to be an overly prescriptive, unnecessarily complex, and, on occasions, wholly artificial, apparently all embracing, statutory framework within which sentencing judges were required to assess the appropriate minimum term following conviction for murder. We say “at first sight” because, as we have said, careful study of the statutory language makes clear that paragraphs 4(1) and 5(1) identify not the ultimate decision but “the appropriate starting point”, and paragraphs 4(2) and 5(2) specify the cases of murder which would “normally” but not inevitably trigger a finding of exceptional or particularly high seriousness. In short, on close analysis, Schedule 21 did not create a stepped sentencing regime with fixed dividing lines between the specified categories.

[10]This is the background against which we turn to consider paragraph 5A and its inclusion within schedule 21. It does not provide that the seriousness of an offence of murder committed with the use of a knife or other weapon falls within the “exceptionally high” or “particularly high” level of seriousness. Indeed it is striking that unlike paragraphs 4 and 5 this new starting point does not describe the level of seriousness of the offence at all, perhaps because of the difficulty of finding an appropriate adjective to describe the seriousness of an offence which is not, at any rate on first consideration, to be treated as “particularly high” but which simultaneously must be approached as more grave than an offence of ordinary seriousness. As a matter of semantics therefore the seriousness of an offence falling within paragraph 5A is “normally” marginally lower than “particularly high”. And this very brief semantic discussion reveals that paragraph 5A requires the flexibility of approach already adopted by the decisions of this court in the context of paragraphs 4 and 5 of Schedule 21.

[11]It is also plain from the structure of paragraph 5A, particularly by reference to paragraph 5(2)(b) (“a murder involving the use of a firearm or explosive”), that it is not the legislative intention that every murder involving the use of a knife or other weapon to inflict fatal injury should normally fall within the 25 year starting point. Had that been the intention, it would have been a simple matter to follow the language of paragraph 5(2)(b) and substitute “a murder involving the use of a knife or other weapon”. Therefore paragraph 5A does not provide an entirely comprehensive framework which governs the starting point for the assessment of the determinate term for murders committed with a knife or other weapon. Indeed the first requirement before it bites is the specific intention required by paragraph 5A(2) when the knife or other weapon is taken to the scene, itself a distinct intention from the intention required at the time when fatal injury was inflicted.

[12]The primary practical difficulty however arises from the provision that the offender “took the knife or other weapon to the scene”. Miss Wass Q.C. submitted that the purpose of the new provision is to deter the possession of knives in public (whether or not carried with murderous intent or with a victim in mind) and to underline the additional gravity of committing murder with a knife in those circumstances. In general this reflects the broad guidance already offered on this issue in R v M, AM and Kika, and we agree. However the language of paragraph 5A is not so limited. If a man makes up his mind to kill his partner and walks back to their home, and there picks up a knife in the kitchen and kills her with the knife, he will not have taken the knife to the scene. On the face of it this offence would not fall within paragraph 5A. If a man in exactly the same frame of mind walks home and buys a knife on the way and kills his partner in the kitchen in exactly the same circumstances, then on the face of it paragraph 5A would apply. We doubt whether anyone would believe that justice would be represented by the assessment of the starting point for respective minimum terms for each of these defendants at 15 years and 25 years respectively. The culpability levels are the same: the consequences are similarly catastrophic. Yet, unless examined in the context of the decisions of this court about the way in which the provisions of schedule 21 should be approached, a literal interpretation of paragraph 5A might produce this disparate result.

[13]The second of these examples forcefully underlines that paragraph 5A is not confined to murders committed with the use of a knife which has been taken out onto and used on the streets. It does not follow that a murder committed with a knife in the offender’s home, or for that matter in the victim’s house, automatically falls outside the ambit of paragraph 5A.

[14]Further problems arise in the context of what is meant by “the scene”. If the victim is in the kitchen, and the defendant takes a knife from a drawer and kills him or her, for the purposes of paragraph 5A that knife was not taken “to the scene”. If in the same example the kitchen is at one end of the living room with no partition between the two, the victim is in the living room and the defendant takes a knife from the kitchen drawer and kills her, then again for the purposes of paragraph 5A this knife was not “taken to the scene”. The situation will be additionally complicated if one of the doors in the premises through which the assailant went with the knife had been open, or closed, or locked. The present group of cases demonstrates the difficulties.

[15]In Harding and others, to the knowledge of all, one knife was undoubtedly taken to the scene, but a second knife, which was also used, was taken by the defendant from the kitchen drawer and carried to where the victim was lying in a bedroom, where he was killed. The Crown accepts that this particular knife was not “taken to the scene”. Kelly is much more problematic. The victim was upstairs in a locked bathroom when the defendant took the knife from the kitchen broke down the bathroom door and killed him. The question whether the knife was taken to the scene is arguable either way. But assuming that it was not, it is difficult to see how it would make any difference to the eventual determination of the minimum term. In Balraj Singh the defendant took a knife from an upstairs kitchen in his own premises and went downstairs into the working area of the factory. He did not have to travel outside, he simply walked through an open door a distance of some 50 metres and killed the victim. It is difficult to avoid the conclusion that this knife was “taken to the scene”. In Bowers, in very brief summary for the purposes of the present discussion, the victim came to the defendant’s house armed with a rounders bat, and the defendant armed himself with a knife and came out of his house on to the pavement where he stabbed the victim. That knife was taken to the scene. In Edwards, the Reference by the Attorney General heard on the same date as the present group of cases (where the victim was in the living room next to the kitchen, and the defendant took the knife from the kitchen drawer and killed her), that knife was not “taken to the scene”.

[16]Problems of the kind we have identified arise equally starkly in the context of murders committed with a knife taken to the scene where two or more offenders are convicted of murder on the basis of joint enterprise. Harding provides a stark example. Given some of the difficulties which can arise in joint enterprise murders where a weapon is used by one, but only one, of the murderers, the difficulties for sentencing judges are likely to multiply. There will continue to be convictions for multi-handed murders where one or more of the defendants was not aware that a knife or knives were being taken to the scene but who, once violence erupted, were participating in it well aware that the knife would be or was being used with murderous intent. Although guilty of murder they were not party to the taking of the fatal weapon to the scene. For them, their offence is aggravated by the fact that they participated in a knife murder. Paragraph 5A would not provide the starting point in the sentencing decision. For those who did take part or were party to the taking of the knife to the scene, then it would, but care has to be taken not to double count the fact that they participated in a knife murder which has already been factored into the normal paragraph 5A starting point. The judge will therefore be required to make the necessary findings of fact to identify the appropriate starting point, and thereafter to reach the sentencing decision required by the justice of the case. On the basis of the single case currently before us, we cannot give any broader guidance.

[17]With these considerations in mind we turn to the appeal and applications in this present group of cases.

R v. Marlon Kelly

[18]On 7 February 2011, in the Crown Court at Guildford before the Recorder of Guildford, His Honour Judge Critchlow, and a jury, Marlon Kelly (who is 32 years of age) was convicted of murder and sentenced to life imprisonment, with a period of 25 years (less time spent on remand) specified under s. 269(2) of the 2003 Act.

[19]Kelly and Anthony Grey were close friends of a similar age who earned their living by selling heroin to addicts in the Redhill area. On 10 May 2010, they both stayed the night at the home of Kelly’s girlfriend. Next morning Tom Jones, a heroin addict, called at the premises in order to buy some drugs. About 10 minutes later neighbours saw Mr Grey open the bathroom window in the maisonette and cry for help. Kelly had taken a knife from the kitchen, gone upstairs to the bathroom and broken down the door to get to Mr Grey. He then plunged the knife into his neck, severing the carotid artery and jugular vein. Having done that, without giving or calling for assistance, he watched as Mr Grey choked on his own blood. Kelly then closed the bathroom window; washed the murder weapon to remove blood from it; and pretended to know nothing about the attack claiming to have been asleep at the time. At his trial, his defence was that Mr Jones had been the killer.

[20]In passing sentence Judge Critchlow noted that Kelly had previous convictions including for discharging a firearm (incidentally, whilst wearing body armour) for which he had been sentenced to 6 years’ imprisonment. In addition, he was a dealer in heroin. The judge continued:

“In view of your use of that particular knife, the amount of force that you used and the place where you stuck the knife, I have no doubt that you intended not just to cause grievous bodily harm but to kill him……I find also there was premeditation. You killed him after a row, whether it was to do with what emerged from phone calls that morning or an argument over drug money, but you rowed with him and deliberately went and armed yourself with a knife and went from the kitchen upstairs with the intention of killing him. I find that was premeditated and you took a knife to the scene accordingly. The starting point is 25 years, as I find, and it can be said you took the knife to the scene, just as with a man who took a knife out with him when going out to commit an offence or having a knife available to use as a weapon. You armed yourself in the kitchen with that knife intending to kill him and having stabbed him upstairs you then washed that knife back in the kitchen…….In deciding the minimum term I have regard to the physical suffering inflicted on Mr Grey by stabbing him where you did, so that he died in agony, writhing in pain and struggling for breath while you stood by, as I find, doing nothing.

(c) ”

[21]The sole ground of appeal advanced by Miss Wass QC on the applicant’s behalf is that, as a matter of law, the case did not fall within paragraph 5A of Schedule 21 to the 2003 Act, since the knife was not “taken to the scene”. For the reasons already given, we agree. We do not consider that a knife taken from the kitchen of a home, whether a flat, maisonette or house, to another room in the same home even if a locked door was forced, falls within “taken to the scene” in paragraph 5A. Mr Edis QC for the Crown laid emphasis on the fact that the bathroom door was locked and the applicant had to break it down to get at the victim. We take due note of that feature, which we regard as seriously aggravating the offence.

[22]In our judgment on the facts of the case, the minimum term of 25 years set by the judge was fully justified. Kelly had a bad record. He had intended to kill and had done so with a knife. The attack involved breaking a door down. The case also had the gravely aggravating factor emphasised by the judge, namely that the victim died in agony, choking on his own blood while Kelly stood by and did nothing. There were no mitigating features whatever, and Miss Wass was unable to suggest that there were. In those circumstances the application for leave to appeal against sentence was refused.

R v. Jason Bowers

[23]On 14 January 2011, in the Crown Court at Norwich, before the Recorder of Norwich, His Honour Judge Jacobs, and a jury, Jason Bowers (who is now 20 years of age) was convicted of murder and sentenced to life imprisonment with a period of 20 years (less time spent on remand) specified under s. 269(2) of the 2003 Act. His application for leave to appeal against sentence has been referred to the full Court by the Registrar.

[24]Bowers and the victim Anthony Adams were both cannabis users who also supplied the drug for gain. On 4 June 2010, Bowers learned that Adams had at least 3 ounces of cannabis at his home address. He burgled Adams’ home, stole the drugs and then boasted about it. Word got back to Adams who sent Bowers a text message, asking him to return the cannabis because he would otherwise face certain consequences. Bowers ignored the request.

[25]The next day Adams turned up at the home of Bowers’ parents (the parents being away on holiday) carrying a rounders bat and accompanied by two youths. He banged on the front door saying, “you’re fucking dead mate”. Bowers drew the curtains and telephoned for a friend to come and assist him. The friend arrived and was able to enter the house unhindered. Immediately afterwards, Bowers picked up two sharp kitchen type knives, holding one in each hand and left the property. He then ran towards Adams who was on the pavement and Adams came towards him swinging the rounders bat. As Adams tried to hit the applicant around the head, the applicant stabbed him with one hand to the left side of his chest and with the other to the right side of his abdomen. Bowers’ girlfriend hid the knives and they made arrangements to leave Thetford, but after some persuasion from his parents the applicant gave himself up.

[26]In passing sentence, after referring to paragraph 5A, the judge said:- “It seems in my judgment that in the light of the terms of that Section, the fact that you fulfil the criteria for the 25 year minimum term is absolutely unanswerable. This weapon was taken to the scene outside your parent’s house, intended to be used by you and was used by you. At the very least, how can it be argued otherwise than that you intended to have it available for use as a weapon? [I find] no other aggravating features and will give you credit for the following mitigation. I am unsure of an intention to kill. I will give you some credit for a degree of provocation, a small degree of provocation. As a defence it was rejected by the jury. Anthony Adams was at your house, although the reality is that you started this whole incident by burgling his house and refusing to return his drugs. I will give you some credit for your age [the Applicant was 19 at the time of the offence]. I am required to do so by other legislation, although in this particular case it is worth noting that the laid down criteria is that the starting point for a person over 18. There is no credit for a guilty plea. I will give you some credit for a lack of premeditation. The circumstances in which the knife was to be used arose as a result of Anthony Adams coming to your house. You took up the kitchen knife and I have no doubt whatsoever you chose your moment, which was the moment when your friend Smith arrived at the house, but there is an element of spontaneity about it for which I will give you credit and you were to a degree in fear of violence although there is a qualification there. As the prosecution pointed out, no effort was in fact made to physically enter your property. The intention was to get you out of the property, but it would be foolish to deny that in these circumstances you were not in some fear of violence.”

[27]On Bowers’ behalf, Mr Clare submits that the use of the knife in these circumstances was not as envisaged by Parliament when enacting paragraph 5A. We disagree. Like the judge, we consider that in this case the knife was “taken to the scene”. Bowers could have remained inside the family home when threatened by Adams but instead he armed himself with two knives, opened the door and pursued Adams into the street. The judge was correct to choose a starting point of 25 years for the minimum term.

[28]Mr Clare also submits that the judge did not sufficiently reflect the mitigating factors when reducing the minimum term to 20 years. Again, we do not accept this submission. The sentencing in this case was a careful balancing exercise by a highly experienced judge. We consider that he paid appropriate attention to Bowers’ age and the other mitigating factors in the case. The application for leave to appeal against sentence was therefore refused.

R v. Balraj Singh

[29]On 8 December 2010, at the Central Criminal Court before the Recorder of London, His Honour Judge Beaumont QC and a jury, Balraj Singh (who is 44 years of age) was convicted of murder after his earlier plea of guilty to manslaughter was not accepted by the Crown. He was sentenced to life imprisonment with a period of 20 years (less time spent on remand) specified under s. 269(2) of the 2003 Act.

[30]Balraj Singh was a factory worker in Southall. He lived in a bedsit above the factory. On the evening of 10April 2010, he was in the kitchen of his bedsit eating food. He said that he was using a kitchen knife. The deceased Gurmukh Chahal was working downstairs on the factory floor. Balraj Singh heard Mr Chahal shout a gross insult in Punjabi up the stairs towards him. He came downstairs with the kitchen knife and attacked Mr Chahal, having carried it a distance of some 50 metres. The two men grappled with each other and Balraj Singh made stabbing motions towards Mr Chahal. The deceased sustained a single stab wound to the left side of the chest, which severed a pulmonary vein near the lung. He collapsed some minutes after the fight and died shortly afterwards. The degree of force was said by the pathologist to have been moderate. At the trial, the defence argued lack of intention based on alcohol intoxication.

[31]Balraj Singh was of prior good character and Mr Cole mitigated on the basis that he was in poor health, had an impeccable work record, and was described as kind gentle and hardworking. He worked 13 hours a day, 7 days a week, isolated from his wife and child who lived in Telford. In passing sentence the Recorder of London said: - “I cannot ignore Schedule 21, Section 5A of the Criminal Justice Act 2003 but I do find that its wording gives me some discretion to ameliorate the full rigour of the law presently in force for using a knife to take life. You have much to place before the court in mitigation. In summary: your work record, your good character and the opinions of people you work with. All of that has been skilfully placed before the court by learned counsel on your behalf. It permits me to reduce from 25 to 20 years the minimum term you must spend in custody before you are considered for eligible for release on life licence.”

[32]We consider that the trial judge was correct to find that paragraph 5A applied to this case. Balraj Singh left his home (the bedsit flat) with the knife intending to use it as a weapon. It is true that the factory in which the attack occurred was in the same building as the bedsit, but, in our view, the case is analogous to cases such as Bowers where the knife was taken out of the defendant’s home into the street.

[33]Mr Cole pointed to the inclusion of the word “normally” in paragraph 5A and submitted that this was an appropriate case for giving effect to it by taking a lower starting point than 25 years. The judge referred to the discretion given by the Schedule to “ameliorate the full rigour of the law”. The minimum term of 20 years which he imposed following a contested trial may be seen either as reflecting a lower starting point than 25 years or as making generous allowance for the appellant’s personal mitigation. Whichever way one looks at it we consider that the 20 year specified minimum term for murder involving the use of a knife in circumstances such as those described in this case cannot be described as either wrong in principle or manifestly excessive. For these reasons, the appeal was dismissed.

R v. Gordon William Harding and others

[34]After a three week trial before Griffith Williams J and a jury in the Crown Court at Mold, Gordon William Harding (who is 20 years of age), Ashleigh Tonia Robinson (who is 19), Sacha Andrew Powell Roberts (who is 20) and Hollie Louise Robinson (who is as young as 17) were convicted of the murder of Antoni Robinson who is the father of Ashleigh and Hollie Robinson; Harding was Ashleigh Robinson’s partner; Roberts was Hollie Robinson’s boyfriend. The Robinsons and their mother, Joanne Elizabeth Barr, had previously pleaded guilty to conspiracy to pervert the course of justice. On 8 February, Griffith Williams J sentenced Harding, Ashleigh Robinson and Roberts to custody for life specifying periods of 22 years, 22 years and 20 years (less time spent on remand) respectively as the minimum term pursuant to s. 269(2) of the Act. Hollie Robinson was sentenced to be detained pending the determination of Her Majesty’s pleasure: in her case, the period specified was 18 years less time spent on remand. Joanne Barr was sentenced to 4 years imprisonment for conspiracy to pervert the course of justice; no separate penalty was imposed for that offence on those convicted of murder.

[35]The facts reveal a chilling offence of patricide and, in this case, must be set out in a little detail. Antoni Robinson (“the deceased”) was 61 years of age and, for some 25 years, Joanne Barr’s partner. From the early 1990s, they lived together at a 3 bedroom bungalow in Old Colwyn which the deceased had previously built for his parents and acquired on their death but the relationship was not a happy one. Two other daughters of the deceased (from a previous relationship) both considered that the deceased felt isolated and put upon by Ms Barr, whereas she and the co-accused claimed he was an alcoholic who was sometimes violent.

[36]On 12 December 2009, the police were called to the property following an allegation of domestic violence by the deceased against Ms Barr. She was required to leave the property and later she moved into a flat. Her two daughters also left. Relationships became increasingly acrimonious, with the defendants alleging he had sold items of jewellery that belonged to the three women. They were also suspicious about the contents of a safe he had in his bedroom.

[37]On 20 June 2010, the deceased went to stay with one of his other daughters in Hampshire, remaining for 14 days. Whilst there, he received news that Harding and Ashleigh Robinson had moved back into the bungalow with their baby, saying that they wanted to remain there until they could find a place of their own. The deceased appeared to take the matter calmly and said he would sort the matter out when he got home.

[38]On 4 July 2010, he returned home. He was unhappy that Harding and Ashleigh Robinson were in the bungalow and tension again increased. The resentment within the family was growing and text messages were exchanged between the defendants repeating their suspicions as to the contents of the safe and expressing their intention to remove jewellery from it. This led to an arrangement for Roberts and Hollie Robinson to go to the house for some sort of confrontation with the deceased.

[39]On the evening of 6 July, the deceased returned home after spending the evening in a public house. He retired for the night. Harding and Ashleigh Robinson were present in the premises. Ms Barr drove Roberts and Hollie Robinson from her flat to a location mentioned in text message exchanges which was close to the bungalow to which they then walked. They waited outside until a further exchange of messages led to them being admitted by Harding when it was believed that the deceased was asleep. Roberts had brought a combat knife with him and then Harding armed himself with a kitchen knife. At about 1am, Harding entered the room where the deceased was sleeping and, using both knives, stabbed him at least 15 times to his face, neck and upper body, including four stab wounds to his back. The jugular veins on both sides of his neck were severed.

[40]In the meantime, Ms Barr had remained in her car. Shortly before 1.30 am, Ashleigh Robinson sent her a text message to the effect that the deceased was dead. She then went to the bungalow and immediately took charge of the situation, instructing the others as to what they were to say to the police. She told them to say that she, Roberts and Hollie Robinson had been at her flat at the time of the killing. It was only then that she contacted the police and reported the death although she lied as to her whereabouts at the time of the killing and was callous in her description of the deceased. She arranged for a number of incriminating text messages to be deleted from her phone. Details of those messages were also deleted from the phones of Roberts and Hollie Robinson. The effect of her efforts was that only some 40% of the texts actually sent or received were recovered.

[41]The defendants were subsequently arrested. When interviewed, Harding said he had been at home with his partner and baby when the deceased came home. He said they had waited until the deceased had gone to bed before they had decided to sneak into the bedroom, open the safe and recover the jewellery. He said the deceased had woken up, got out of bed and attacked him with a kitchen knife. He claimed in the ensuing struggle he had accidentally stabbed him. Ashleigh Robinson claimed that she had gone into her father’s bedroom with Harding but that she had fled from the room when he woke up. She claimed her sister and her partner knew nothing about the plan but then later retracted that statement. She said she knew Harding had a knife but that he had it for his own protection as her father was a violent man.

[42]When he was interviewed, Roberts said he had not been present at the time of the attack as he had been in Ms Barr’s flat. He later admitted that was untrue and that he had been in the bungalow and had been standing outside the bedroom and seen Harding stab the deceased. Hollie Robinson also initially claimed she had not been present but later admitted that she had been in the premises in the next room to where the murder took place. She denied knowing of a plan to kill him. Finally, Ms Barr initially stood by her alibi but then admitted it was false. She admitted both driving Roberts and Hollie Robinson to the premises and also lying to the police; she said that it had been her idea to do so.

[43]We have identified the ages of each of the applicants who were all of good character; in addition, there were four character references for Ms Barr. Ashleigh Robinson and Harding were the parents of a child who had been born on 21 November 2009 and was thus only 7 months old at the time of the killing.

[44]It is important to set out the findings of fact made by the trial judge. Whereas Griffiths Williams J accepted that the drinking habits of the deceased had played a part in the breakdown of his relationship with Ms Barr and, furthermore, that it was his (probably sorely provoked) loss of temper when in drink and his violence towards Hollie Robinson in December 2009 that prompted the separation, he also concluded that the deceased did not want the relationship with Ms Barr to end even though it (and his relationship with their two daughters) had been fractious for some years.

[45]He decided that the applicants were suspicious about where the deceased was getting his money from and suspected he had sold their jewellery (a view that he might have encouraged). Whilst he was away, it was discovered that he had £10,000 in a bank account and his daughters arranged to take advantage of the fact he was a heavy sleeper to gain access to the safe. Even at that stage, the judge noted that Ashleigh Robinson had chillingly sent a text message to her mother that she was going to kill him.

[46]The judge found that by 6.45 pm on the day in question, the two daughters had decided to go ahead with the plan and they involved the two men, who had agreed to back each other up. They both knew of the plan to take jewellery from the safe and they would go in armed with knives. Harding was prepared to use the knives and had done so. Both daughters foresaw that he might use the knives to kill, as evidenced by their text messages and their reaction to the murder. Nobody summoned an ambulance and 15 minutes or so were spent planning what lies should be told. All four had all tried to lie their way out of this wicked plan and had shown not the slightest trace of regret.

[47]The judge concluded that, in the case of those above the age of 18, because knives had been taken to the scene, the appropriate starting point was 25 years although that would be increased to 28 years having regard to the significant planning and premeditation. They all intended or foresaw that Robinson would be killed if he woke up: the only significant mitigating factor was their age.

[48]Dealing with each in turn, Griffith Williams J concluded that Harding was very much under the malign influence of Ashleigh Robinson, who had turned against her father. However, he was more than a willing participant as he was prepared to kill because his girlfriend was prepared to countenance her father’s death. He found as a fact that Harding knew that Roberts had brought a knife to the bungalow. On the other hand, he was only19 at the time and had called for assistance. As for Ashleigh Robinson, she had played no direct part in the murder but was the malign influence behind it. She had set in train the events of that day and, at the very least, had been outside her father’s bedroom. There was no reason to distinguish between her and Harding.

[49]Roberts had taken the combat knife to the premises but would not have used it. He had taken it to pass on to Harding. His culpability was somewhat less than that of Harding and Ashleigh Robinson, because he was not significantly involved in the planning and was more of a follower. Despite her age, Hollie Robinson bore a heavy responsibility for her father’s murder. The text messages showed she was a more than willing participant and had known full well what was going on in her father’s room: the starting point of 12 years in her case would be increased accordingly.

[50]As for Ms Barr, with her daughters, she had been anxious to find out where Robinson’s seemingly new found wealth had come from and she had been prepared to help them. When she was told Robinson was dead, she had created a false story in an attempt to exculpate her daughters and their boyfriends. During her call to the police, she had cold-heartedly dismissed the man she had seen in a large pool of blood and she had gone to great lengths to cover up for this murder. Although she was entitled to credit for her guilty plea, she had only admitted her role when she found out Roberts was going to tell the truth about her involvement.

[51]It is only Mr Mintz on behalf of Harding who seeks to argue with the conclusion that paragraph 5A of Schedule 21 applies. He submits that it was unfair to infer from the evidence that Harding was party to a joint enterprise whereby Roberts brought the combat knife to the house and that taking a knife from one part of the house to the bedroom was not, of itself, sufficient to bring the conduct within the provision. In the light of a question from the jury on the issue of premeditation and intent, he also challenges the finding of premeditation for murder.

[52]As to the applicability of paragraph 5A(2), there was ample evidence of planning for this attack and the judge (who heard the entirety of the evidence) was entitled to conclude that Harding had known that Roberts was to bring his potentially lethal combat knife to the bungalow that evening. Furthermore, this provision is not to be analysed by reference only to the distance that a knife is carried prior to its lethal use. As we have sought to illustrate, taking a weapon to the scene and the implications of such conduct on the sentence for murder requires a broader consideration than whether the attack took place in the kitchen or the bedroom. In this case, Harding knew that the knife was in Robert’s possession; Roberts had arrived at the house with the knife at least 20 minutes before the attack and it is irrelevant that it was Harding who used the knife, rather than Roberts: that is the very essence of joint enterprise.

[53]As to the finding of premeditation, again, there was ample evidence upon which the judge could reach that conclusion which, in our judgment, appears to have been inevitable. To argue that the jury’s questions might mean that the conviction was based on a different conclusion is to misunderstand the respective roles of the judge and jury; the jury having determined guilt, it is for the judge to assess the factors set out in Schedule 21 each of which goes beyond the ingredients of the offence of murder of which the jury must be satisfied. Having increased the starting point in Harding’s case to 28 years to reflect the significant planning and premeditation of the murder (which is more serious than the intent to be derived simply by carrying the weapon in case it might be used and thus an additional aggravating feature), the judge deducted 6 years to reflect Harding’s age. The resulting minimum term of 22 years was entirely appropriate.

[54]In relation to Roberts, Mr Potter recognises that no point can be taken on paragraph 5A of the Schedule but submits that the judge should not have increased the starting point having accepted that although Roberts took the combat knife to the bungalow, he did so to pass it to Harding. Bearing in mind his further conclusions that Roberts was not significantly involved in the planning and was himself only 19 years of age, he argues that a term significantly below 20 years should have been imposed.

[55]In our judgment, it is clear that the judge had all the features of the case in mind when imposing the 20 year minimum term. He specifically rejected Roberts’ evidence that he did not know of the plan until after they went to the bungalow and was entitled to do so. Thus the elevation to the starting point was appropriate (the ages of Harding and Roberts being identical) and the additional discount to reflect the lesser subsequent role sufficient in all the circumstances not least bearing in mind that Roberts had brought the combat knife with him.

[56]At the time of the murder, Ashleigh Robinson was only 18 years of age with a young child. Mr Bould does not challenge the proposition that paragraph 5A applies but argues that the Crown had not presented the case against her on the basis of an intention to kill and that the increase to the 25 year starting point represented a degree of double counting. The judge concluded that Harding was “acting under the malign influence of Ashleigh” and rejected her account that she had locked herself in her room at the time of the killing: he found that she was outside her father’s bedroom. Thus, for the reasons given in relation to Harding, there is no double counting. The judge considered that there was no reason for distinguishing between her and Harding and was entitled to reach that conclusion. As for the influence of her mother, there was no suggestion in her evidence that Ms Barr was more involved than in relation to the cover up. In the circumstances, this sentence, although severe upon a young mother who will be deprived of the day to day responsibility for her child as she grows up, was fully merited.

[57]Hollie Robinson was only 16 years of age at the time of the killing and sentence in her case had to be approached from the starting point of 12 years identified in paragraph 7 of Schedule 21, although it is accepted that features which the Schedule identifies as requiring a higher starting point necessarily aggravate the offence and thus justify an increase in the minimum term: such is clear from Attorney General’s Reference (No 126 of 2006) R v. H

[2007] 2 Cr App R(S) 59

. To be put in the balance, however, is the need to assess the maturity, insight and understanding of the individual offender: see R v. Peters; R v. Palmer; R v. Campbell

[2005] 2 Cr App R(S) 101

at page 627.

[58]On behalf of Hollie Robinson, Ms Elwen Evans QC recognised both of these principles but argued that her age and her overall responsibility were not sufficiently recognised in the extent of the increase to the starting point and should have led to a shorter minimum term. The judge concluded that Hollie Robinson bore a “heavy responsibility” for the death of her father, the text messages which she sent proving her to be a willing participant who had played an important part in the planning and had encouraged Roberts who brought the knife to the bungalow. Although we are conscious of the effect of this lengthy sentence on this teenager, the extremely grave circumstances of this offence of patricide also justified, in her case, the conclusions that the judge reached.

[59]We deal shortly with Ms Barr whose appeal against the 4 year term for conspiracy to pervert the course of justice is said by Mr Medland QC to be out of line with sentences in similar cases. Adopting the approach in Attorney General’s Reference No 16 of 2009 (R v. Yates)

[2010] 2 Cr App R (S) 11

at para. 33, he accepted that the nature and extent of the criminality of the offender (in this case, murder) was at the highest level but argued that the nature of the assistance actually provided and the extent to which the efforts at assisting the killer damaged the interests of justice did not justify a sentence of 4 years imprisonment after credit for a guilty plea. In particular, he submitted that the extent to which the attempts to pervert were pursued as “relatively modest” when compared to R v. Mercer

[2010] 1 Cr App R (S) 104

[2009] EWCA Crim 2100

which concerned a mother of good character who lied to the police in an effort to protect her son, later convicted of the murder by shooting of the 11 year old Rhys Jones (and who was sentenced to 3 years imprisonment with 25% discount for pleading guilty).

[60]In this case, Ms Barr knew that the other four intended to access the safe and drove Roberts and Hollie Robinson to the bungalow. Having waited for a call, she arrived at the scene shortly after the murder, orchestrated a dishonest cover up (including deletion of text messages many of which were never recovered) and delayed calling the police. As the judge observed, it was only when she discovered that Roberts was going to tell the truth that she gave instructions for the story to be changed. Griffith Williams J described her offending as “thoroughly wicked”. We have no doubt that this sentence (discounted for the early plea of guilty) was fully deserved and entirely in line with the authorities in this area.

[61]Accordingly, we concluded that these applications for leave to appeal against sentence should each be refused.

Cited in 11 later judgments

and 2 more of the most senior