Johnston, R v

THE VICE PRESIDENT: On 23rd March 2004 at Winchester Crown Court after a trial before Sir Richard Rougier, the applicant was convicted of murder and sentenced to life imprisonment. The judge specified a period of 18 years less a period of 1 year which had been spent on remand. He renews his application for leave to appeal against that specified period following refusal by the Single Judge. We grant leave.

The facts were these. On the evening of 22nd March 2003 the appellant, together with his partner and his 1 year old daughter and another man called Brady, drove to the North Lane area of Aldershot. Their purpose was to buy heroin. Brady went to a flat with cash available but failed to buy any drugs. In consequence, the appellant became agitated and started to hoot his car horn and address obscenities to the flat. He then got out of his car and went to the flat and banged and kicked on the front door. He broke windows by throwing bottles.

A group of residents heard the noise and came to the scene. Among that group was a 26 year old man called Christopher Vickers. Another member of the group, a Mr Woods, escorted the appellant from the premises, but a fight broke out between them. Other members of the group pulled the appellant off Mr Woods. Mr Vickers, at that time, was there, but not involved. The appellant returned to his car. He threw a bottle at the group. There was another final confrontation between the appellant and Mr Woods while the appellant was sitting in the driver's seat of his car. Mr Woods opened the door and kicked the appellant several times. At that stage, the group walked away towards the flats. The appellant revved the engine of his car and drove at the group, mounting the pavement as he did so. The group scattered. Christopher Vickers was hit by the car. He was, as is apparent, entirely innocent of wrongdoing of any kind in the course of this incident. He fell beneath the car; it ran over him. The car was unable to continue because the deceased's body was under the bodywork. He died while beneath the car.

The appellant was arrested at the scene. In interview he denied deliberately driving at the deceased, but claimed that he had been trying to escape.

In passing sentence, the learned judge said that the appellant had been convicted of the vicious murder of an innocent man who had done him no harm and posed no threat. He had killed him because he had lost control of his temper. The judge accepted that the appellant did not intend to kill but rather to cause serious injury. The judge also accepted that there was a lack of premeditation. Any remorse that the appellant had shown, the judge said, was false and driven by self- interest. The learned judge ignored the appellant's previous convictions which, over a period of some 17 years, included assault and offences of dishonesty. He had never previously served a custodial sentence.

The judge took four factors into account in specifying the period which he did. First, the use of the motorcar as a weapon. Secondly, it was not just the deceased who was endangered but the group at which the car had been driven. Thirdly, after he had hit the deceased, the appellant had run over his body while trying to get away, and fourthly, there was an absence of remorse.

On behalf of the appellant, Mr Chinn QC, who appeared in the court below, submits, (and this is accepted by Mr Bryan who appears before us on behalf of the prosecution), that, at the time of sentencing, no one in court had the advantage of this Court's decision in R v Sullivan (8th July 2004 [2004] EWCA Crim 1762). On the contrary, Mr Chinn and the judge proceeded on the basis that the applicable guidance to be found in relation to assessing the period specified was that in the letter from the Lord Chief Justice of 16th December 2003. It is accepted that that was not the correct approach in view of the Court's decision in Sullivan, which has given rise to Amendment No 8 to the consolidated Practice Direction. This governs the transitional position with regard to offences committed when this offence was committed, that is after 31st May 2002 and before 18th December 2003. The provisions of Amendment No 8, so far as they are presently relevant, are to be found in IV.49.23 which refers to replacement of the previous single normal tariff of 14 years by a higher starting point of 15/16 years and a normal starting point of 12 years. The normal starting point of 12 years is for offences which do not contain the features of exceptionally high culpability on the part of the offender, or particular vulnerability on the part of the victim exemplified in IV.49.26.

Mr Chinn draws attention to the aggravating features identified in IV.49.28 which, although not an exhaustive list, do not at first blush embrace the conduct in the present case. As was pointed out to Mr Chinn in the course of his submissions, there are features in the use of a motorcar directed at a group which are, in some respects, comparable to the use of explosives, that is to say, the number of people who may be killed or injured cannot be known in advance. Mr Chinn accepted that the use of the vehicle as a weapon was, as he put it initially, 'a potentially aggravating feature', and as he put it a little later in his submissions 'an aggravating feature'. But, he submits, it did not provide aggravation of the starting point which he submits should have been 12 years, sufficient to increase that figure of 12 by 50%, which would be the effect if the learned judge's figure of 18 were correct.

Mr Chinn felt constrained by the judge's finding of an absence of remorse. But, he submitted, the presence of remorse is a mitigating feature, as is apparent from IV.49.31, but its absence cannot be, as the judge declared it to be, an aggravating feature.

The mitigating features found by the judge, namely, an absence of intention to kill and a lack of premeditation are specifically identified in IV.49. 30.

Mr Chinn draws attention to the facts in the case of the appellant, Sullivan, in the authority to which we have referred, but they were considerably different from those in the present case. Mr Chinn's essential submission is that, notwithstanding the use of the motor car as a weapon, the endangering of a larger group and the attempt to get away which had consequences for the deceased's body, those aggravating features in the case, when set against the mitigating features identified, did not justify the learned judge's conclusion that 18 years was the appropriate term. Mr Bryan, for the Crown, very properly stressed that the learned judge had heard the whole case and sentencing was a matter within his discretion.

In our judgment, there is substance in Mr Chinn's submissions. It seems to us that the starting point in the light of Amendment No 8 was properly to be regarded as 12 years. Having regard to the aggravating features to which we have referred, we would have thought that a 16 year period would properly result from them. But there has also to be taken into account the mitigating factors found by the judge to which we have referred. In the light of all those matters, we take the view that the figure of 18 years was an excessive figure and we quash it; we substitute for it a period of 15 years to be served less of course the period of 1 year spent in custody on remand. To that extent, this appeal is allowed.

MR CHINN: I am much obliged. May I mention one other matter, a representation order? Leave having been refused by the Single Judge, I would invite the Court to say, in the light of the Court's judgment today, it would be appropriate to grant a representation order for preparation and attendance of myself today and also for the grounds settled by junior counsel which would not receive renumeration, as I understand it, leave having been refused.

THE VICE PRESIDENT: That sounds absolutely right, Mr Chinn. There will be a representation order for leading counsel in connection with attendance today and such matters as led to attendance today and a representation order for junior counsel limited to the settling of the grounds of appeal.