Chalk & Ors v R [2015] EWCA Crim 1053

Case No 201303910 B3201303913 B3201303805 B3201304304 B3[2015] EWCA Crim 1053
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WINCHESTER CROWN COURT
Mr Justice Walker
T20127056
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 17/06/2015
Before
LORD JUSTICE TREACYMR JUSTICE TEARERECORDER OF LONDON – HIS HONOUR JUDGE HILLIARD QC
Between
Donna Louise ChalkAppellantsAndrew William Christopher Dwyer-SkeatsAppellantLee Matthew NichollsAppellantRyan Ian WoodmanseyAppellantRRespondent
A. MacDonald QC (instructed by The Registrar of Criminal Appeals) for Donna Louise ChalkMs J. Bickerstaff QC (instructed by The Registrar of Criminal Appeals) for Andrew William Christopher Dwyer-SkeatsW. Mousley QC (instructed by The Registrar of Criminal Appeals) for Lee Matthew NichollsK. Khalil QC (instructed by The Registrar of Criminal Appeals) for Ryan Ian WoodmanseyA.Feest (instructed by CPS) for RespondentHearing Hearing date : 9 June 2015
JudgmentLord Justice Treacy :Introduction
[1]This case is concerned with the murder of a vulnerable homeless man named Jamie Dack. All four of the appellants before the court admitted or were convicted of his murder. Nicholls pleaded guilty in November 2012 during the course of the first trial. His plea led to the discharge of the jury against the other three appellants. A fresh trial took place at Winchester Crown Court between April and June 2013. At that retrial the other three appellants were convicted by the jury.[2]Both Donna Chalk and Andrew Dwyer-Skeats now pursue renewed applications for leave to appeal against their convictions for murder after a refusal by the single judge. Neither Nicholls nor Woodmansey challenges his conviction.[3]In addition to the count of murder, each of the accused faced a charge of perverting the course of public justice. Each pleaded guilty at some stage. Woodmansey pleaded guilty on initial arraignment. Dwyer-Skeats and Nicholls pleaded guilty at the outset of the first trial and Chalk pleaded guilty some way through that trial.[4]All accused were sentenced to life imprisonment for the offence of murder. The minimum terms specified by the judge were: 34 years in Nicholls’ case; 32 years in Dwyer-Skeats’ case; 30 years in Woodmansey’s case; and 25 years in Chalk’s case. The single judge has granted each appellant leave to appeal against those minimum terms. The judge also passed concurrent 4 year sentences on each offender in relation to the count of perverting the course of public justice. Those 4 year terms were to run concurrently to the sentence imposed for murder.[5]There are two technical matters which have been drawn to our attention. Firstly, Victim Surcharge Orders were made unlawfully. The court quashes the Orders in each case. Secondly, the judge failed to deal with the question of periods of time spent by each accused on remand in custody. Those should have been ordered to count against the minimum terms specified since such time is not automatically deducted from the minimum term. Section 240ZA of the Criminal Justice Act 2003 does not apply directly to sentences of life imprisonment. We shall deal with this later.

The facts

[6]On 21 March 2012 the appellants met the deceased, a homeless man, who accompanied them to their flat. The males went out and on their return Chalk alleged that the deceased had sexually assaulted her. That evening, and as a result of hearing that allegation, Nicholls beat up Mr Dack in the car park of a local Aldi store. He was found lying on the ground unconscious and was taken to hospital. Not long afterwards Chalk arrived at the scene and appeared to be distressed at what had happened and told the police that Nicholls was responsible for the attack.[7]It would seem that by Thursday 5 April 2012 Mr Dack had recovered. He met the appellants and went back to their flat again. On this occasion a woman called Amber Patterson was also present. Mr Dack had taken a laptop with him and unbeknown to him the appellants stole it. The males left the flat in an unsuccessful attempt to sell the laptop. On their return one of the two women told the males that Mr Dack had made a sexual approach to Amber Patterson. The males became angry and said the deceased was going to get another beating. The appellants collectively also decided to steal Mr Dack’s bank card and to find out his PIN number. The two females were sent out to the shops whilst the males beat up Mr Dack in the flat. A baseball bat and a knife were used during this attack. Once Mr Dack’s PIN number had been obtained, Woodmansey withdrew £20 from a cash machine.[8]The two females had not witnessed the attack although there was phone contact between those at the flat and them whilst it was going on so that they were aware of what was happening. When the women returned to the flat they could see that Mr Dack had been badly beaten and that he had been put in a wardrobe in one of the bedrooms. The appellants then forced him to clean up his blood from a carpet and he was subjected to a further attack by kicking every time he failed to do as he was told. Not long afterwards Amber Patterson left the flat and did not return. However the appellants and the deceased remained in the flat for the rest of the night.[9]On the following day, 6 April, the deceased who by now was described as being in an appalling condition was left by the four appellants in the flat, having been bound and gagged. The appellants then went out and sold his laptop. On their return Donna Chalk looked through Mr Dack’s mobile phone and referred to him as a “weirdo”. This prompted the three male appellants fatally to assault Mr Dack. All four of the appellants then went out overnight leaving Mr Dack’s body at the flat.[10]On the following day, having returned to the flat, the four appellants set about disposing of the body. It was put into a wheelie bin which was subsequently taken to an industrial estate and set on fire. Petrol had been bought by Nicholls and Woodmansey. Donna Chalk’s responsibility was to clean up the flat.[11]A fire at an industrial estate was reported at about 2:30a.m. on Sunday 8 April. The fire service put out the fire and found Mr Dack’s body within the wheelie bin. Later that day the appellants were arrested.[12]The injuries sustained by Mr Dack were dreadful. The final fatal attack had lasted in the region of some 30 minutes. This involved the infliction of injuries by the use of fists, feet, three knives, a baseball bat and bottles. During the course of the attack clothing was removed and the violence stopped while photographs were taken of a severely injured but still alive victim. In all about 20 knife injuries were inflicted. It is clear that the violence resumed after photographs were taken. Most of the injuries would have been inflicted whilst Mr Dack was conscious.[13]In passing sentence the judge described the fatal attack as an orgy of violence. He stated that the photographs taken had the sole purpose of deriving pleasure and satisfaction from seeing what had happened to Mr Dack. He noted that photographs had been taken during the attack on the previous day showing him lying in the bedroom covered in blood. It was also the case that Donna Chalk had kept a photograph on her phone of injuries sustained by Mr Dack in the initial attack on 21 March. She showed that photo to Amber Patterson describing what had happened to him. The judge said that he had no doubt that Ms Chalk delighted in a sense of power which she had subsequently used by making derogatory comments about Mr Dack which she knew and intended would trigger off serious violence by Nicholls in retribution.[14]The Crown’s case against the male defendants was that they had all participated physically in the fatal attack intending that Mr Dack should be killed. The case against Chalk was based upon joint enterprise. It was not suggested that she had physically participated in the attack. In her case it was said that she had intentionally encouraged its commission by the remark about Mr Dack’s phone and that she had been present throughout the attack. Further complicity was demonstrated by her participation in the cover up and disposal of the body.[15]The defence case for Chalk was that she was not present at the time of the fatal attack and that she neither participated in nor encouraged it. Ms Chalk did not give evidence. The defence case in respect of Dwyer-Skeats was initially that he was not present in the flat when the fatal attack took place. At a late stage he changed his account to admit presence but to deny participation in the fatal attack, instead holding Nicholls and Woodmansey responsible. Dwyer-Skeats gave evidence.[16]In passing sentence the judge described Mr Dack as a vulnerable young man. Chalk’s initial allegation of a sexual assault was a false one designed to cement her relationship with Dwyer-Skeats. It led Chalk to realise that she could use sexual allegations to manipulate Nicholls to act violently. On 5 April Mr Dack had been beaten relentlessly not only to obtain his bank card and PIN but also for his alleged sexual behaviour towards Amber Patterson. Whilst Nicholls took the lead, Woodmansey and Dwyer-Skeats played intermittent but significant roles. At the end of the assaults on this day the deceased needed hospital treatment but instead was kept at the flat overnight. As to the fatal attack, the judge found that the fatal wounds were inflicted by Nicholls but that the other two males were part of the attack sharing his intention to kill. The judge said that Mr Dack’s mental and physical suffering prior to his death must have been terrible.[17]We have seen Victim Personal Statements from Emma Duckett, the deceased’s partner, speaking of severe depression caused as a result of this offence, and from his cousin Emma Dack speaking of the family’s anguish at what had happened and the ordeal to which the deceased was subjected.[18]The three male appellants have extensive criminal records, but nothing for serious violence. Ms Chalk has no matters of relevance on her record.

The applications of Chalk and Dwyer-Skeats concerning conviction

[19]Both applications challenge the judge’s decision to admit the evidence of Amber Patterson as hearsay. The Crown relied at the second trial on her unfitness under section 116(2)(b) of the 2003 Act, and the judge having found that that subsection was satisfied declined to exercise powers to exclude the evidence. There is common ground between Chalk and Dwyer-Skeats in challenging the admission of this evidence although the arguments advanced by each are different. In addition on Chalk’s behalf there are two further matters. Firstly, it is submitted that there was no case to answer against Ms Chalk at the conclusion of the Crown’s evidence. Secondly, complaint is made that there was a delay approaching three weeks between the end of evidence and the jury’s retirement and that the summing up and legal directions were over-complex so that the jury could not perform its functions properly, leading to an unsafe verdict.[20]Ms Patterson had given evidence at the first trial. By then she had received a kidney transplant and there were serious concerns about her health. She gave evidence with breaks to accommodate her medical condition. She was cross-examined in full by counsel for Nicholls and Woodmansey and for a significant period on behalf of Dwyer-Skeats until she became unwell. After a break of a week, a special procedure was adopted whereby evidence of her interviews under caution was put before the jury, and then abbreviated cross-examination continued on behalf of Dwyer-Skeats and was carried out on behalf of Ms Chalk. Thereafter, for reasons already given, the first jury was discharged.[21]At the outset of the second trial counsel for the Crown raised concerns about Ms Patterson’s ability to give evidence, and after the Crown’s opening a psychiatric report on her was made available. In due course a Dr Talat attended court and gave evidence about Ms Patterson and was cross-examined. The Crown then pursued an application to adduce her evidence as hearsay. Woodmansey did not object to the admissibility of her evidence as hearsay whereas Ms Chalk and Dwyer-Skeats did. Woodmansey wished to rely on parts of her evidence.[22]The medical evidence showed that around the time of the original trial Ms Patterson who had had a kidney transplant had stopped taking immuno-suppressive medication, blaming herself for Mr Dack’s death, in order that she might die. She subsequently decided to stop taking such medication completely and as a result lost the transplanted kidney. A major factor in this was the traumatic psychological stress of giving evidence during the first trial. The judge in his ruling spoke of the harrowing effect of cross-examination which he had witnessed.[23]Thereafter she had to rely on dialysis. The treating nephrologist Dr Macanovic had real concerns that Ms Patterson would not attend for dialysis if stressed by the rigour of a criminal trial and consequently would put her life in danger. She expressed the view that “it would not take very much to push [Ms Patterson] over the brink.” By the eve of the retrial, Mr Macanovic was even more worried about the actions she might take in order to avoid trial. The psychiatrist Dr Talat’s view was that for Ms Patterson to give evidence would have a devastating impact on her mental health. It was quite likely that she would stop dialysis. This would eventually kill her.[24]In oral evidence Dr Talat stated that if Ms Patterson were cross-examined from hospital the risk of her taking her life would be moderate to high. The evidence given showed that Ms Patterson was not at the point of examination physically or mentally unfit. However if she were to give evidence the consequences for her could well be fatal. On behalf of Ms Chalk there is no criticism of the judge’s finding that on the basis of the evidence summarised Ms Patterson was unfit within the meaning of section 116(2)(b).[25]On behalf of Mr Dwyer-Skeats however, the point is taken that neither her physical nor her mental condition was sufficient to satisfy the subsection. The judge said he was satisfied by the evidence that the requirement for Ms Patterson to be a witness would have a devastating effect on her mental health involving a high to moderate risk of suicide. He addressed the submission that the court should not consider the possible future consequences to a witness as opposed to their fitness at the time they are required to be a witness in the following way in the course of a lengthy and careful ruling:
“31. I have strong doubts about the suggested distinction between the position of witnesses at the moment “they are required to be a witness” and consequences which arise later. As a matter of ordinary English whether one is fit to do something includes taking account of both what may happen before being required to do it and of what may happen afterwards if one does it. 32. In relation to hearsay, as in relation to other matters, the court is not a monster. No judge would allow a summons to issue if satisfied that issuing it would entail a moderate to high risk of suicide. Mr Donne’s proposition appears to accept that if the feared suicide were envisaged as occurring at the time that the individual is required to be a witness then the evidence would be admissible, but it would not be admissible if the suicide were envisaged as something which would come about a day or so later. I can identify no sound basis for any such distinction. 33. Accordingly I am not persuaded of the proposition advanced on behalf of the objectives…”
It was on this basis that the judge held that the application fell within section 116(2)(b).[26]The judge had conducted an extremely careful analysis of Ms Patterson’s history and current condition, and had seen and heard evidence including cross-examination relating to it. We are satisfied that he was entitled to regard the evidence he had heard about the situation as “overwhelming” and to reject suggestions that this was a case of a manipulative witness who was simply unwilling rather than unfit to give evidence. Further, we reject the point going to the construction of the statute taken on behalf of Mr Dwyer-Skeats. We consider that the judge’s reasoning was sound.[27]Both appellants additionally make common ground in characterising Ms Patterson as a flawed witness whose evidence could be shown to have been contradictory and unsatisfactory in a number of respects. This, it is contended, should have led the judge to exercise his discretion to exclude the evidence. The unfairness of permitting the evidence of such a flawed witness to go before the jury when there was no prospect of them seeing her give evidence and being judged by them in the usual way, was, it was said, compounded by the fact that the Crown had been tardy in making its application.[28]The judge was critical of the Crown for not having addressed the question of Ms Patterson’s evidence earlier than it did. However he concluded, having considered again in some detail the asserted unsatisfactory nature of Ms Patterson’s evidence, that it would not be unfair to admit it. He noted that there were a number of independent and unchallenged areas of evidence which supported her account and gave examples and took account of the fact that her evidence could be challenged by the defendants themselves giving evidence. The jury would be made aware of evidence given by Ms Patterson at the original trial including hearing an audio version of cross-examination. The jury would be made aware that in the cases of Dwyer-Skeats and Chalk that cross-examination had been truncated.[29]Moreover the defence would be able to identify by schedules areas in which they could submit compellingly that Ms Patterson had lied. The judge took account of the fact that aspects of Ms Patterson’s evidence had considerable probative value to the case as a whole and that her evidence was confined to the events of the day preceding the fatal attack as opposed to what took place on the actual day.[30]The judge concluded that prejudice arising from the inability of the jury to see and hear Ms Patterson being cross-examined live could be substantially counteracted by an appropriate judicial direction and that the jury would be in a position fairly to judge her credibility. As to the lateness of the application the judge said that he was not persuaded that it prevented those objecting from instructing their own psychiatrist. Had that been desired urgent steps could have been taken at the outset of the trial and an adjournment sought if need be. However none of that had happened.[31]Having reviewed all the circumstances comprehensively the judge concluded that those objecting to the admissibility of the evidence had not been unfairly disadvantaged; nor did the Crown’s lateness in making the application make it appropriate to decline it.[32]Issue has been taken before us with the judge’s decision essentially on grounds very similar if not identical to those advanced below. We have considered the very detailed materials which form the judge’s ruling running to some 26 pages of closely considered and reasoned material. Having made his ruling the judge gave the jury directions before they heard the evidence and at the conclusion of the case gave substantial written legal directions to the jury relating to this issue. There has been no challenge to the accuracy or appositeness of those directions which redeem the judge’s intention, mentioned in the course of his ruling, to give the jury such directions. In the factual part of the summing up the judge took many pages to set out all the aspects of Ms Patterson’s evidence, reviewing with particular care areas in which the defence contended that she was being untruthful or inaccurate. No complaint has been made to us about the way in which the judge dealt with any of those materials. It seems to us that the judge’s approach and conclusions cannot be faulted.[33]In the circumstances, therefore, after careful consideration we have come to the conclusion that there is no arguable point in relation to the admissibility of this evidence or its handling thereafter by the judge which could impugn the safety of the convictions. We note that the judge was disposed to hold that in the alternative the evidence was admissible under section 116(2)(e), and also that he would have been minded to admit it under his residual section 114 powers. Accordingly the application of Dwyer-Skeats in relation to conviction is refused. We next go on to consider the remaining grounds raised on behalf of Ms Chalk.[34]In the course of these proceedings the judge was asked to rule on a number of occasions that there was no case for Ms Chalk to answer. He ruled against her prior to the first trial on a dismissal application and then at the close of the Crown’s case. The latter application was renewed at the second trial, an important additional feature being the fact that by then Ms Patterson was no longer available to give live evidence. The judge did not consider that this made a material difference to his previous rulings. The application made to us is based on the submission that the totality of the evidence against Ms Chalk was insufficient for the case to proceed further. We cannot accept that submission.[35]We are satisfied that the case against Ms Chalk amounted to more than mere presence at the time of the fatal attack. A jury would be entitled to consider and draw inferences from the following matters: i) Ms Chalk’s awareness of Nicholls’ capacity for violence against someone he believed guilty of inappropriate behaviour. ii) She had retained photographs of Dack’s injuries on the first attack on her phone and shown it to others with approval or amusement. iii) She was involved in the joint plan to steal money from Mr Dack’s bank account on 5 April and knew that violence was to be used to obtain his PIN number. iv) She was party to the making of a false sexual allegation to Lee Nicholls against Mr Dack on 5 April knowing the likely consequences of this. v) She left the flat on the evening of 5 April knowing that Mr Dack was going to be beaten and then overheard it on the phone as it took place. vi) On returning to the flat she saw Mr Dack’s serious injuries and witnessed further assaults, yet did nothing to help him or dissociate herself, unlike Ms Patterson. She remained overnight in the flat with a semi-conscious victim lying bloodied and beaten in the next room. vii) On 6 April she was with the three males and left Mr Dack who by then was gagged and bound as a prisoner in the flat whilst all four of them went to sell his computer. viii) She then returned to the flat with others and remained present whilst the prolonged fatal attack took place. Given the very small size of the flat she could not have been unaware of what was going on and what was being done to Mr Dack. There was nothing to explain her failure to intervene. ix) After she had seen Mr Dack’s body, she spent several hours in the flat getting ready to go to a rave with two of those who had been involved in the attack. x) During that afternoon she had texted Ms Patterson suggesting that Mr Dack had gone to hospital when in fact he was already dead to her knowledge. On the following day she returned to the flat with the others and played her part in cleaning the flat as part of the evidence disposal operation.[36]It seems to us that those are all matters which a jury properly directed could take into account and from which it could draw conclusions adverse to Ms Chalk on the charge of murder. We are satisfied that there was sufficient evidence to go forward to the jury and that the judge was fully alert to and applied the correct legal tests, including an awareness that mere presence at the scene of a crime without more would be insufficient evidence upon which to base a conviction.[37]The final area of complaint relates to the delay after closure of evidence and the asserted over-complexity of the summing up, legal directions and routes to verdict. We are unpersuaded by these submissions. This was a long case with three defendants (and a fourth in the background) whose roles were in dispute and where there were complex issues to be dealt with, not least joint enterprise, defences in conflict, and the position of Ms Patterson. The judge took significant time to craft appropriate directions with the assistance of counsel. Those which he produced and gave to the jury are clear and there is no suggestion that they were inaccurate in any way. Whilst the defence contended for shorter directions, those produced were logical and comprehensible. There was no question or intervention by the jury at any stage suggesting any difficulty with them. Whilst it is true that the summing up was very long, it at least had the advantage of setting fully before the jury all the facts and issues in the case. Following as it did the various addresses of counsel, they will have been enabled to set the arguments made to them in context.[38]The length of the summing up and the detail of the written legal direction and routes to verdict in a sense provide an answer to the issue of lapse of time between the end of the evidence and the jury’s consideration of its verdicts. The gap of nearly three weeks will have essentially been spent by the jury considering the issues in the case through the medium of counsels’ submissions and then the judge’s subsequent legal directions and factual summing up. The process was one therefore whereby the jury’s minds will have been focused on the case during that period. True it is that part of that period was spent in discussions between judge and counsel as to the relevant law and appropriate directions, together with a short period when the judge was unwell. However there is nothing in the matters raised which gives rise to any arguable point that the jury may have been confused or in some other way hampered in the task which they had to perform. Accordingly we reject the two further grounds advanced by Ms Chalk. The consequence of this is that her renewed application for leave to appeal against conviction is refused as there is nothing of substance in the grounds whether viewed individually or cumulatively.

Appeals against sentence

[39]In passing sentence the judge found that there was participation in sadistic conduct in relation to all defendants. He said that it was demonstrated by the taking of photographs whose only purpose was to gain pleasure derived from seeing what had happened to Mr Dack. Accordingly, having regard to the provisions of Schedule 21, paragraph 5 of the Criminal Justice Act 2003 that would entail a 30 year starting point for the minimum term. The judge went on to say even if it were wrong to describe the conduct as sadistic, it was so close to sadism that he would have increased any 15 year starting point to something close to 30 years. He continued:
“Combined with the aggravating features of suffering, and the way you disposed of the body, before taking account of mitigating factors, I reach a period of in excess of 30 years for all of you.”
He then passed the different minimum terms already mentioned, singling out Nicholls as the leader, taking account of the fact that the other two males were followers rather than leaders and allowing Woodmansey some additional mitigation “for the substantial extent to which you gave a true account of events to the police.” In Ms Chalk’s case the judge dealt with her somewhat more leniently as she had inflicted no physical injury herself, as she intended no more than grievous bodily harm to occur. He also had regard to her age (20 at the time), a lack of premeditation, and the contents of a report from Dr Clark, a psychologist.[40]All appellants challenged the 30 year starting point and the judge’s finding that there was sadistic conduct. Nicholls additionally challenges the judge’s description of him as a leader when he had not been a planner, motivator or persuader. He urges that his intention to kill is limited to the duration of the final attack, some 30 minutes, and that he would not have acted as he did without the presence and encouragement of the others. In addition he argues that he deserved additional credit for having pleaded guilty, making a witness statement for the Crown, and being prepared to give evidence at the second trial. He contrasts his position in this respect with that of his co-accused.[41]Dwyer-Skeats additionally urged that a 2 year difference between himself and Nicholls was insufficient to reflect their respective roles. Moreover he submits there was no reason to distinguish between himself and Woodmansey who received 30 years.[42]Woodmansey in common with the others complains that the overall sentence was manifestly excessive but submits additionally that the judge failed to distinguish sufficiently between himself and the other two males and that the judge should have granted greater credit for admissions made by Woodmansey in his police interviews and evidence. There is a discrete additional point raised concerning count 2 (perverting the course of justice) which is somewhat academic since a concurrent sentence was passed. Woodmansey was the only defendant who had admitted that count in interview and who pleaded guilty at the first reasonable opportunity. That should have been recognised in a lesser sentence.[43]In Ms Chalk’s case in addition to the common complaint about the starting point of 30 years, rather than one of 15 years, she submits that the 25 years imposed upon her was simply too long where a) she had not personally used any violence; b) she was 20 years old at the time and thus significantly younger than the other appellants who are five to 11 years older than her; c) the clinical psychologist’s report shows that she was an extremely vulnerable and psychologically dependent young woman at the time of the offences, having prior to this time suffered many unfortunate life experiences which had affected her. She should be viewed as a compliant follower so that her culpability was significantly reduced.[44]We begin with the common submission relating to the 30 year starting point.

(a) of Schedule 21 provides:

“if the case does not fall within paragraph 4(1) but the court considers that the seriousness of the offence (or the combination of the offence or one or more offences associated with it) is particularly high…the appropriate starting point, in determining the minimum term is 30 years”
Paragraph 5(2) indicates cases which would normally fall within subparagraph (1)(a) include “(e) a murder involving sexual or sadistic conduct”.[45]The judge found that what occurred over the sustained fatal attack, participated in or encouraged by all defendants, fell within that definition. We have considered Attorney General’s Reference Nos 108 and 109 of 2005 (Swindon and Peart) [2006]2 Cr App R (S) 80. That was a case which involved sustained violence taking place over several hours during which the victim was bound and gagged, kicked and stamped to the head and face, and disembowelled. At paragraph 33 the court stated that although sadistic conduct may be sexually fuelled, the word “sadistic” nowadays either in its ordinary meaning or in the present statutory context neither implies nor requires a sexual element. The court went on to say that the fundamental question was whether, sadistic or not, the conduct was of such seriousness as to warrant a 30 year starting point. That this is correct can be seen from the fact that paragraph 5(1)(a) applies that starting point where the seriousness of the offence or its combination with other associated offences is “particularly high”. The reference to sadistic conduct at paragraph 5(2) is merely an example of what will be sufficient to satisfy paragraph 5(1)(a).[46]We also considered Bonellie [2009] 1 Cr App R (S) 55. That case involved a fatal attack involving a large number of blows delivered by a group of young men for amusement by way of punching, kicking, stamping and head-butting. In that particular case the court held that such conduct was not sadistic notwithstanding its appalling nature. The court spoke of sadism requiring a significantly greater degree of awareness of pleasure in the infliction of pain, suffering and humiliation. It is to be observed that the decision in the Attorney General’s Reference was not cited to or considered by the court which concluded that, whilst this was a very bad case of gang violence, it fell short of conduct contemplated as sadistic by the paragraph.[47]Having ruled out sadistic conduct, the court did not then go on to consider whether the seriousness of the offence was particularly high within the meaning of the Schedule for any other reason. We view this as a decision referable to the facts of that case and not one which is of particular assistance in the present matter where the judge not only identified what was done to the victim over a prolonged period but specified the pause for the taking of photographs as evidence demonstrating sadistic conduct. Moreover, the judge identified an alternative basis on which a starting point of around 30 years was appropriate.[48]We have also considered the case of Nicholls and others(2011) 1 Cr App R (S) 67 which involved repeated violence over a period of days. The court upheld a 30 year starting point where the trial judge had assessed the conduct as sadistic or alternatively as a prolonged killing involving “a particularly high degree of seriousness in the whole spectrum of murder.”[49]We do not consider that searching for factual distinctions in levels of violence and other circumstances in previously decided cases is of great assistance. It seems to us that in considering the 30 year starting point the court should ask itself whether the seriousness of the matters to be dealt with is particularly high. If sadistic conduct in the sense described in the Attorney General’s Reference is involved that may well be an indicator of the appropriateness of a 30 year term. However it is not a prerequisite.[50]In the present case the court is not confined to looking at the fatal attack but would be entitled to look at the preceding events as aggravating and setting in context what occurred on the morning of 6 April. This is accepted by counsel. On any view on the previous day Mr Dack had been subjected to very serious violence triggered by the behaviour of Donna Chalk. Although he needed hospital treatment, the deceased was effectively kept prisoner overnight and then forcibly restrained the following day at the flat whilst the appellants went out to sell his computer. The case is also undoubtedly aggravated by the mental and physical suffering inflicted upon Mr Dack during the prolonged fatal attack and by the subsequent attempts to conceal the body coupled with the cleaning up of the flat.[51]Ultimately it seems to us that the judge was entitled for the reasons he gave to conclude that what was done to the deceased on the morning of his death did amount to sadistic conduct in the circumstances, but in any event, the circumstances of the case reveal one of particularly high seriousness. Thus on either view a starting point of around 30 years was appropriate. Those considerations apply to each of the four appellants. The next question is the extent to which that figure should be varied to take account of individual factors.[52]We begin with Nicholls. When the judge described him as the leader he meant that Nicholls had taken the leading and most significant role in the fatal and earlier violence and had in fact personally inflicted the fatal injury. It was he who had been moved by Ms Chalk’s remarks into initiating that attack. That was a factor which entitled the judge to distinguish his position from his co-accused. We do not see mitigation in the submission that he was unlikely to have acted as he did but for the comments of Ms Chalk and the presence of the others, or in the fact that his intention to kill was confined to the duration of the final incident. There was evidence that, at the end, the killing was also seen as necessary to cover up what had already been done to the deceased.[53]As to the fact that Nicholls pleaded guilty, credit for this must be very limited since it only came during the course of his cross-examination by prosecuting counsel. Thereafter he did make a statement for the Crown and appeared to be willing to give evidence at the re-trial. However there were issues as to the truthfulness of significant parts of his account and the judge subsequently acceded to a defence application that the evidence should not be admitted for this reason. We further understand that during the course of the second trial, Nicholls took steps with a view to seeking to re-open his guilty plea. Although he did not pursue the matter to an application, this somewhat undermines claims of credit for remorse. In the circumstances we consider that some, but not much credit is due to Nicholls for these matters.[54]Given our finding that a starting point in the region of 30 years was appropriate whether on the basis that the conduct was sadistic or on the basis that the seriousness of the offending was particularly high, the matter would clearly be aggravated by the disposal of the body but care should be taken to avoid double counting in relation to the mental and physical suffering of the deceased where the 30 year starting point is reached either through the sadistic conduct route or through the particularly high seriousness route. In the context of this case Mr Dack’s suffering will have already have been a factor in the identification of the 30 year starting point.[55]The question for us is whether in the circumstances Nicholls’ minimum term of 34 years is manifestly excessive. We have come to the conclusion that it was. The judge arrived at that figure having made some allowance for the guilty plea and co-operation. His sentencing remarks suggest that having arrived at his starting point he included as an aggravating feature the mental and physical suffering of the deceased. We think that the submission that there was an element of double counting about this is well founded. We are of the view that the judge was entitled to make some addition to his starting point to reflect the disposal of the body. This was a separate distressing and aggravating element which went beyond the appalling facts of this murder itself. Since a 30 year starting point was in our judgment appropriate to this case, and since we have concluded that some addition to that figure would be justified to represent the disposal of the body, it would follow that a small deduction should be made from the figure thus reached to reflect the guilty plea and other matters referred to.[56]Taking account of those factors, we are persuaded that the ultimate figure of 34 years was too high and that the appropriate figure is 31 years. Accordingly we allow this appeal against conviction by quashing the 34 year minimum term and inserting in its place a minimum term of 31 years less 441 days spent on remand in custody. If that latter figure is incorrect, in this as in the other cases, we intend the appellants to have full credit for time spent in custody, and if need be a corrected figure may be substituted administratively.[57]We turn next to Dwyer-Skeats. For the reasons already stated, a 30 year starting point was appropriate in his case. The judge, who had presided over a lengthy trial and heard Dwyer-Skeats give evidence, assessed his role as a lesser one than that of Nicholls. Whilst criticism is made of the level of reduction granted to him in this respect, we are not persuaded to interfere taking the view that considerable respect should be afforded to the judgment of the trial judge who had many weeks in which to consider the relevant roles of the male accused. For similar reasons, we are not prepared to interfere with the distinction made between Dwyer-Skeats and Woodmansey. Accordingly our conclusion in Dwyer-Skeats’ case is that the specific grounds relied upon by him are unsuccessful. However to maintain proportionality with the sentence imposed on Nicholls we reduce Dwyer-Skeats minimum term from 32 years to 29 years less 441 days spent in custody on remand. If need be that figure can be corrected administratively.[58]In Woodmansey’s case we consider that, a 30 year starting point being appropriate, the judge was best placed to assess the hierarchy and relative culpabilities. We do not consider there is any basis to interfere with his assessment. The claimed extra credit for admissions in interview and evidence has to be seen in the context of the fact that Woodmansey maintained a denial of involvement in murder to the end. Our conclusion in his case is that to maintain proportionality with his co-accused, the appeal should be allowed and a minimum term of 27 years less 441 days be substituted. Again any error is to be corrected administratively.[59]In Woodmansey’s case the point raised relating to count 2, perverting the course of justice, is a valid one albeit only academic. We shall give effect to it by substituting a term of 3 years in place of the 4 years imposed on count 2 to run concurrently to the minimum term on count 1. This of course makes no difference to the overall time to be served.[60]Finally in the case of Donna Chalk, the judge clearly recognised that she played a lesser role in the offending having used no actual violence herself. On the other hand he found that she clearly intended to trigger off the fatal attack by her actions, and that the jury’s verdict accepted that and the fact of her presence throughout as encouragement to the others. It is however the case that Donna Chalk was 20 years old at the time and that she was a damaged individual in a way which reduces her culpability. In addition and importantly, the judge accepted that Ms Chalk did not have an intention to kill but merely an intention that grievous bodily harm be caused to Mr Dack. This of course is a relevant point in mitigation. The judge identified these various factors which differentiate Ms Chalk’s case from that of the other three. The question for us is whether he made sufficient allowance for those factors.[61]Our conclusion is that, notwithstanding the respect which should be afforded to a trial judge for his feel for the relative positions of the defendants before him, we do not consider that taken cumulatively he gave enough weight to those matters which distinguish Ms Chalk’s case from the others. There is a combination of features present in her case which satisfies us that a greater distinction ought to have been made. In addition, we need also to reflect the reduction made in the other sentences. Our ultimate conclusion is that the appropriate minimum term in this appellant’s case is one of 20 years less 441 days spent on remand in custody. Again that figure may be corrected administratively if it is incorrect. To that extent this appeal is allowed.