Last & Ors v R

We have heard these five cases together. We have done so in order to provide further assistance as to the determination of the minimum term to be served by defendants convicted of murder and sentenced to life imprisonment prior to their being considered for release on licence by the Parole Board. The common feature of the five cases is that in each case the defendant pleaded guilty to murder.

Until recently, it was rare for a defendant to plead guilty to murder. This may have been a throwback to a time when the penalty for murder was death. In that situation, the legal profession regarded it as inappropriate to allow a defendant to plead guilty.

The catalyst for change was probably the House of Lords decision in Anderson v DPP [2003] IAL 837 and the legislation which was necessary as a result of that decision. The responsibility for decisions as to minimum terms when a mandatory life sentence was imposed for murder was transferred from the Home Secretary to the judiciary.

From 18 December 2003, the Criminal Justice Act 2003 (“the 2003 Act”) requires the judge to determine in open court the minimum term that needs to elapse before a defendant is eligible for parole. This process, under the 2003 Act, is in marked contrast to the earlier process when the minimum term would be determined by the Home Secretary behind closed doors, having received private recommendations from the trial judge and the Chief Justice of the day as to the appropriate minimum term to be served.

When making their recommendations to the Home Secretary, the trial judge and the Lord Chief Justice would reduce the minimum period if the defendant had pleaded guilty. This was because of the benefit that flowed from the plea of guilty, both for the family of the victim, and the criminal justice system as a whole. The guilty plea could also demonstrate remorse on the part of the defendant. However, as the trial judges’ and the Lord Chief Justice’s recommendations were not made in public, that the judges made this deduction, apparently, was generally not appreciated. This position changed once the minimum term was determined by a judge in open court.

The leading authority on the process of determining the minimum term after the 2003 Act came into force, was the decision of this court in R v Sullivan & Others[2004] EWCA Crim 1762. In that case, this court referred to the relevant provisions of the 2003 Act and Practice Directions and in particular Schedules 21 and 22 of that Act, and indicated the approach which judges should adopt in setting minimum terms. However, Sullivan did not deal specifically with the effect of a plea of guilty on minimum periods.

In broad terms, regard has to be had to the starting points, and aggravating and mitigating features, referred to in Schedule 21, in determining the length of the minimum period required as a punishment to reflect the seriousness of the offence. Having calculated a minimum term under Schedule 21, the judge then has to apply paragraph 10 of Schedule 22 if the offence was committed before the 2003 Act came into force on 18 December 2003. This is to ensure that the minimum term does not exceed what would have been the likely minimum term based on the practice of the Secretary of State prior to December 2002. The purpose of this provision was to avoid a minimum term set by the judge being retrospectively set at a higher figure than that which would have been set at the time of the offence by the Home Secretary.

A difficulty that the 2003 Act creates is that it does not identify the practice of the Home Secretary prior to that date. However, as pointed out in Sullivan, it was only in the most serious cases that the Home Secretary tended to select a higher figure than that indicated by the judiciary. The practice of the judiciary was to follow the Practice Directions which had been issued by the Lord Chief Justice of the day, so the Practice Directions, in general, should be regarded as the most satisfactory evidence of the practice of the Home Secretary prior to December 2002. The desirability of the use of the Practice Directions in this way, is underlined by the fact that the Secretary of State had not made any determinations to minimum term, in a case where the offender was sentenced after the date of the latest Practice Direction (31 May 2002), by the time the law was changed.

Where a defendant pleads guilty, section 152 of the Powers of Criminal Courts (Sentencing) Act 2000 (“the 2000 Act”) provides:

“In determining what sentence to pass on an offender who has pleaded guilty to an offence in proceedings before that or another court, a court shall take into account –

the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty; and

the circumstances in which this indication was given.

If, as a result of taking into account any matter referred to in subsection i) above, the court imposes a punishment on the offender which is less severe than it would otherwise have imposed, it shall state in open court that it has done so.”

The Sentencing Guidelines Council has issued Guidelines for all offences as to how these statutory provisions should be applied in the case of pleas of guilty. In relation to offences other than murder, there was, prior to the Guidelines, no guidance as to what the level of reduction should be allowed. However, it had generally been assumed that the reduction should be approximately one third of the length of the sentence that would otherwise have been imposed. This was no more than a rule of thumb, and judges exercised a broad discretion to vary the level of reduction according to the circumstances. One of those circumstances was the stage of the proceedings at which the appellant had pleaded guilty. A late plea tended to receive a lower discount.

The purpose of granting a reduction was explained in the Guidelines as follows:

It is a separate issue from aggravation and mitigation generally.

The sentencer should address the issue of remorse, together with any other mitigating features present, such as admissions to the police in interview, separately, when deciding the most appropriate length of sentence before calculating the reduction for the guilty plea.

The implication of other offences that an offender has asked to be taken into consideration should also be reflected in the sentence before the reduction for guilty plea has been applied

A reduction in sentence should be applied to any of the punitive elements of a penalty. The guilty plea reduction has no impact on sentencing decisions in relation to any ancillary orders…”

The judge both calculates and applies the reduction to the level of sentence or minimum term that there would have been if there had been no reduction as a result of the guilty plea. (See paragraph 3.1 of the Guideline) The Guideline continues by giving guidance as to how to determine the appropriate level of reduction. It indicates that it should be calculated as a proportion of the total sentence imposed, with the relevant proportion based upon the stage in the proceedings at which the guilty plea was entered (paragraph 4.1). Paragraphs 4.2 and 4.3 provide:

The level of reduction should reflect the stage at which the offender indicated a willingness to admit guilt to the offence for which he is eventually sentenced

The maximum reduction will be given only where the offender indicated willingness to admit guilt at the first reasonable opportunity. When this occurs will vary from case to case.

Where the admission of guilt comes later than the first reasonable opportunity, the reduction for guilty plea will be less than one third.

Where the plea of guilty comes vary late, it is still appropriate to give some reduction.

If after pleading guilty there is a Newton hearing and the offender’s version of the circumstances of the offence is rejected, this should be taken into account in determining the level of reduction.

If the not guilty plea was entered and maintained for tactical reasons (such as to retain privileges whilst on remand), a late guilty plea should attract very little, if any discount.”

The Guideline then deals with withholding a reduction. The terms of the relevant parts of the Guideline are as follows:

Where the court has determined that a longer than commensurate, extended, or indeterminate sentence is required for the protection of the public, the minimum custodial term but not the protection of public element of the sentence should be reduced to reflect the plea.

Since the purpose of giving credit is to encourage those who are guilty to plead at the earliest opportunity, there is no reason why credit should be withheld or reduced on these grounds alone. The normal sliding scale should apply………..”

The Guideline deals with the application of any reduction of minimum term imposed in the case of Murder in the following terms:

The decision whether to release the offender from custody during this sentence will be taken by the Parole Board which will consider whether it is safe to release the offender on licence. The Court that imposes the sentence is required by law to set a minimum term that has to be served before the Parole Board may start to consider whether to authorise release on licence. If an offender is released, the licence continues for the rest of the offender’s life and recall to prison is possible at any time.

Uniquely, Parliament has set starting points (based on the circumstances of the killing), which a Court will apply when it fixes the minimum term. Parliament has further prescribed that, having identified the appropriate starting point, the Court must then consider whether to increase or reduce it in the light of aggravating or mitigating factors, some of which are listed in the statute. Finally, Parliament specifically provides that the obligation to have regard to any guilty plea applies to the fixing of the minimum term, by making the same statutory provisions that apply to other offences apply to murder without limiting the courts discretion (as it did with other mandatory sentences under the 2000 and 2003 Acts).

There are important differences between the usual fixed term sentence and the minimum term set following the imposition of the mandatory life sentence for murder. The most significant of these, from the sentencer’s point of view, is that a reduction for a plea of guilty in the case of murder will have double the effect on time served in custody when compared with a determinate sentence. This is because a determinate sentence will provide (in most circumstances) for the release of the offender on licence half way through the total sentence whereas in the case of murder a minimum term is the period in custody before consideration is given by the Parole Board to whether release is appropriate.

Given this difference, the special characteristic of the offence of murder and the unique statutory provision of starting points, careful consideration will need to be given to the extent of any reduction and to the need to ensure that the minimum term properly reflect the seriousness of the offence. Whilst the general principles continue to apply (both that a guilty plea should be encouraged and that the extent of any reduction should reduce if the indication of plea is later than the first reasonable opportunity), the process of determining the level of reduction will be different.”

The Contrast

Where a Court determines that there should be a whole life minimum term, there will be no reduction for a guilty plea.

In other circumstances,

the Court will weigh carefully the overall length of the minimum term taking into account other reductions for which offenders may be eligible so as to avoid a combination leading to an inappropriately short sentence.

where it is appropriate to reduce the minimum term having regard to a plea of guilty, the maximum reduction will be one sixth.

in the special circumstances of a conviction for murder, even where a minimum term of over 30 years (but not whole life) is fixed, the reduction should never exceed 5 years.

the sliding scale will apply so that, where it is appropriate to reduce the minimum term on account of a guilty plea, the maximum reduction (one sixth or five years whichever is the less) is only available where there has been an indication of willingness to plead guilty at the first reasonable opportunity, with a maximum of 5% for a late guilty plea.

the Court should then review the sentence to ensure that the minimum term accurately reflects the seriousness of the offence taking account of the statutory starting point, all aggravating and mitigating factors and any guilty plea entered.”

Before turning to the facts of the individual appeals, there are certain general comments that it is useful to make. First, it was argued in the course of the hearing of these appeals, which took place at the end of last term (December 2004), that as the Guideline only came into force on 10 January 2005, it would be wrong to apply the Guideline to cases where sentence was passed at an earlier date. We disagree. The Guideline is no more than what it says on its face, a guideline. It does not affect the Court’s powers of sentencing set out in the legislation, it merely indicates how those powers can be exercised. The Guidelines are to assist the judge to reach a just sentence, and in the case of murder, the just minimum term. The Guideline does not alter the law as already contained in the 2000 and 2003 Acts. Prior to the Guideline, there were no principles or guidance to which judges could turn to in the case of murder. It is therefore appropriate for this Court and lower courts to take into account the Guideline for earlier cases even though it only expressly applies to offences sentenced on or after 10 January 2005. The fact that “every Court must have regard to the relevant guideline” does not mean that it has to be followed. However, except in the unlikely circumstances that an offender can show that he would be prejudiced by the application of the Guideline, it is sensible for it to be adopted. The sort of situation in which it might not be just to apply the Guideline, is where the application of the Guideline results in a lower discount than the offender was told he would receive, based on the position, as it was understood to be prior to 10 January 2005. As to this possibility, we would not expect that there will be many cases where such a contention can be advanced with any degree of confidence. We say that because of the complete uncertainty that existed as to the approach which should be adopted in the case of murder to discounts for pleas of guilty prior to the Guidelines.

This is, perhaps, an illustration of the fact that, as in the case of Schedule 21 itself, the Court is only required to have regard to the Guideline. As long as it gives reasons explaining what it has done, the Court is always free to depart from Schedule 21 or the Guideline.

What we have said so far is very much in accord with the general position, both in relation to the Guideline, and the provisions of Schedule 21. They do not remove the judges’ discretion. They merely indicate the matters to which the judge must have regard when exercising his discretion. If the judge does not follow Schedule 21 or the Guidelines, as long as he gives valid reasons for not so doing, he retains a discretion to calculate the actual minimum period. In addition, Schedule 21 does not seek to identify all the aggravating and mitigating factors, it merely provides relevant examples.

Before turning to the individual appeals, the final matter we should mention is that we are not setting out the relevant Practice Directions here because, although they are important in transitional cases, they are already extensively dealt with in the case of Sullivan.

On 10 March 2004, in the Crown Court at Chelmsford, Emma Last, who is now 20, pleaded guilty to murder and conspiracy to inflict grievous bodily harm. On 21 April 2004, Nelson J ordered her to be detained at Her Majesty's pleasure specifying the minimum term as 18 years 97 days. (The minimum term was in fact 20 years but this was reduced to take account of the period she had already served in custody). She appeals against the minimum term with leave of the single judge.

In July 2002, Debra Carne, the 17 year old victim was part of a group of young people including Emma Last, Kerry Bauer (“Bauer”), Steven Wood (“Wood”) and Nicole Hollinshead (“Hollinshead”). Wood and Hollinshead had been lovers, though their relationship had been briefly punctuated by Wood having a sexual relationship with Debra Carne.

Wood and Hollinshead were temporarily living with Emma Last in her sheltered accommodation in Braintree. During the last weekend of July 2002, Hollinshead was determined to confirm her suspicions that Wood and Debra Carne had had sexual intercourse and telephoned her to enquire. Debra Carne claimed that Wood had propositioned her, something that Wood denied.

Having consumed both alcohol and cannabis, Wood, Bauer and Emma Last decided to take revenge on Debra Carne. In the discussion, Wood mentioned to the others that he had a can of petrol in his car. Bauer announced that she would douse Debra Carne with the petrol. Emma Last said she would ignite it and stab her. Wood was to meet Debra Carne and he was then to bring Debra Carne to a meeting place, where Emma Last and Bauer could stab, suffocate and burn her.

On Saturday evening, Wood intended but failed to pick up Debra Carne. Bauer and Emma Last were not pleased. The Next day, Wood bought petrol, putting it into a bottle provided by Emma Last. Late in the evening he drove from Emma Last’s accommodation, taking her and Bauer with him. He dropped them in a secluded area while he fetched Debra Carne. As arranged, he drew up to where they were waiting. Bauer dragged Debra Carne from the car and, with the Appellant kicking and punching her, hauled her some distance into the undergrowth. There, Bauer doused her in petrol which was set alight by Emma Last. Whether at this stage Debra Carne was alive or dead, the Crown could not conclusively prove, but once she was surely dead, the trio returned to Emma Last’s home where they collected Hollinshead. As a group, they then drove some 30 miles to another secluded area where they rid themselves of their incriminatory clothing and Debra Carne's handbag.

Debra Carne’s mother was alarmed at her daughter's failure to return so she rang her daughter’s mobile late on Saturday but Emma Last had switched it off. More attempts, also fruitless, during Sunday morning, prompted the mother to telephone Wood and Hollinshead, from whom she heard nothing helpful except outright lies.

The group were arrested on 29 July 2002. In the interview, they denied meeting Debra Carne on the Saturday in question. Whilst awaiting trial, Emma Last told a Prison Officer that she had set light to Debra Carne and killed her.

Born on 23 August 1984, Emma Last was of good character. Reports considered by Nelson J revealed her as suffering a borderline personality disorder consequent upon a troubled childhood. Intrinsically vulnerable, she was prone to episodes of depression, and lacked a coherent sense of identity. The author of the report, however, accepted that her disorder could not explain the offence.

Bauer was born in February 1983. She was 19 at the time of the offence. She, like Emma Last, had no previous convictions, but unlike Emma Last, she had had one caution. She pleaded not guilty because, although she accepted that she had poured the petrol over Debra Carne, she denied that this was done as part of a plot to kill the victim. However, she was nevertheless convicted of murder and sentenced to a minimum term of 15 years 97 days, (17 years less the period she had been in custody already).

Wood was convicted of manslaughter, having pleaded not guilty. He was born in May 1980, so he was 22 at the time of the offence. He was sentenced to 8 years imprisonment. Hollinshead, having pleaded not guilty to murder, was convicted of conspiracy to inflict grievous bodily harm. She was born in June 1984, so was just over 18 at the time of the offence. She was sentenced to 5 years detention.

As to the facts of the offence, the judge said;

Under Schedule 21 of the 2003 Act, there was only one possible starting-point, namely 12 years, in Emma Last’s case. This is because she was just under 18, being 17 years 11 months when she committed the offence, and 12 years is the only starting point in Schedule 21 for those under 18 at the time of the offence. This was the starting point correctly selected by the judge. However, subject to there being a single starting point and the fact that the offender, instead of being sentenced to life imprisonment, is ordered to be detained during Her Majesty’s pleasure, the remainder of Schedule 21 has to be applied in the same way for a person under 18 as it would in the case of adult.

Bauer was 19 at the time of the offence. In her case, Schedule 21 contains two possible starting points. A lower starting point of 15 years and a higher one of 30 years. We have been referred to the Guidelines as we have already rehearsed but guidelines are not, and should not be seen as, prescriptive. Rather, they afford to the judge discretion and are a practical aid, but do not affect the sentencing powers derived from the statute.

Miss Woodley QC complains that the term of 18 years and 97 days is manifestly excessive since it failed to reflect the lack of any significant difference between the offendingof Emma Last and Bauer. Both she and this appellant had subjected Debra Carne to immense suffering, and Bauer lacked the mitigation of a plea of guilty. In addition, it is suggested that the judge failed adequately to recognise Emma Last’s age and remorse.

Though the youngest of the defendants, and 18 months younger than Bauer, Emma Last played her part in the planning and discussion which preceded a premeditated attack, which Nelson J described as "horrific, with a motive so trivial as to defy description." As so often remarked in this court, the trial and sentencing judge is best placed to assess the offenders’ respective roles, as Nelson J did on this occasion. Bauer was treated leniently. This offence was particularly serious and could have warranted a 30 year starting point under Schedule 21, although that figure would have had to be substantially decreased because of Bauer’s age and record. Instead, the judge took the more merciful view and based his sentencing decision on the only alternative starting point in Schedule 21of 15 years.

It can be argued that it would have been helpful to the courts if the gap between 15 and 30 years had not been so great, but as Schedule 21 only contains guidance, the guidance has to be applied so as to do justice in the particular case. If, in a border line case, a higher starting point is selected then this fact will be compensated for by it being regarded as already taking into account aggravating features, while if, in such a case the lower starting point is taken, this can be catered for by attaching particular importance to the aggravating features added to the starting point.

This is what the trial judge sought to do in the case of Bauer and he increased the 15 years to reflect the fact that Bauer, although she did not ignite the petrol, was involved in the planning. She poured the petrol over the victim and was responsible for causing the victim “mental and physical suffering”. The judge also took into account that in Bauer’s case the figure had to be reduced because of Schedule 22 as this was a transitional case. In addition, a deduction had to be made for the period she had already spent in custody. In these circumstances, while regarding the judge’s approach in the case of Bauer as merciful, we do not dissent from the minimum term of 17 years imposed in her case. Equally, we recognise that judges might well have taken the view that a higher figure was called for.

In Emma Last’s case, she had the advantage of just qualifying for the lower starting point of 12 years. So, in her case, the starting point was increased by 8 years notwithstanding that she pleaded guilty and was entitled to the maximum discount for doing so at the first reasonable opportunity, while in the case of Bauer it was only increased by 2 years.

This was a truly horrendous crime. Naturally, it has caused terrible pain and “devastation” to Debra Carne’s family, as is apparent from her father’s letter to prosecuting counsel, Mr Levett. We pay due attention to their suffering. The planning and sadistic nature of the offence means, in our judgment, that the uplift from 12 to 20 years can be regarded as right and proper for the crime committed. Starting points, by their nature, are intended to cover many combinations of factors contributing to the assessment of culpability and, subject to what we have to say as to the plea of guilty, we would see nothing impeachable in a term of twenty years for this calculated, determined and cruel murder.

However, as Mr Levett on behalf of the Crown acknowledges, Emma Last is entitled to the full discount for her plea of guilty as it was made at the first reasonable opportunity. This means that, if a minimum term of 20 years is correct before taking into account her plea of guilty, a minimum term of about 24 years has to be justifiable (4 years being a sixth of 20 years), absent the plea.

Emma Last just qualified for a starting point of 12 years based on her age and when an offender is in that position, the starting point of 12 years carries less weight than it would if an offender were younger. Schedule 21 has not increased the tariffs in the case of those under 18, and 24 years would be an exceptionally high minimum term for someone not yet 18 at the time of the offence.

In addition, if Emma Last had not pleaded guilty and had received a minimum term of 24 years, this would have been substantially in excess of Bauer’s minimum term of 17 years. The fact that one offender is fortunate and receives an unduly lenient sentence, does not mean a co-offender, who receives a perfectly appropriate sentence, is entitled as of right to have his sentence reduced. Whether he does so depends on the circumstances. In particular, this court on an appeal, has to ask itself whether the disparity is of such significance that it makes the sentence complained of unjust having regard to the other sentence imposed. In determining whether the disparity is unjust, the differences in sentences must be considered not only from the point of the appellant, but also of the public. For example, the fact that one offender has been dealt with unduly leniently does not mean that the other offender should also be dealt with undue lenience. But this is not the case here in relation to Bauer.

Mr Levett referred us to evidence that supported the judge’s conclusion that Emma Last’s role was the dominant one. We accept his submissions, but bear in mind that one consequence of Emma Last pleading guilty is that the trial took place without her being represented.

Here the offence was planned. When this is the case, what acts each offender carried out is not usually significant. However, in this case, the trial judge was entitled to take the view that, as between Bauer and Emma Last, Emma Last carried the greater responsibility. The age differences between the two offenders is not of more than marginal significance, even though it meant that Emma Last had the lower starting point. The significant difference between the two offenders is that Emma Last pleaded guilty and Bauer did not. When her plea of guilty is taken into account, in our judgment, her minimum term can be demonstrated as being excessive. In our view, the appropriate minimum term should be the same as in the case of Bauer. Taking into account the period of 1 year 268 days she had been in custody already when she was sentenced, this reduces the minimum term to 15 years 97 days (reduced from 17 years for the period already in custody). This we regard as equivalent to a 20 year minimum term if she had not pleaded guilty at the first reasonable opportunity.

We recognise that the trial judge might have come to the same conclusion if the Guidance on Reduction in Sentence for a Guilty Plea had been available at the time he sentenced Emma Last. We emphasise that the result of her appeal does not mean Emma Last will be released after the altered minimum term. She will not be released until it is safe for this to happen.

Her appeal is allowed in part by substituting for 18 years 97 days, 15 years 97 days.

On 14 April 2004, in the Crown Court at Kingston, Sarah Crane pleaded guilty on re-arraignment to a count of murdering David Thompson. On the following day, Judge Tilling imposed a sentence of life imprisonment and he specified that a minimum term of 12 years, less the 270 days already spent in custody, would have to be served before Sarah Crane could be considered for parole. She now appeals against the length of that minimum term with leave of the single judge.

In the summer of 2003, the appellant, Sarah Crane (“Crane”), lived in a ground floor flat in Purley, with her two children. Between 8.00 and 8.30 on the evening of 20 July 2003, she was sitting on the communal steps outside the flats when she became involved in an argument with a woman, the two teenage sons of David Thompson and another boy who was with them. Subsequently, Crane shouted at them angrily, and she later threw a skateboard and a beer bottle at a car in which they were sitting.

Crane then went into the block of flats and, having climbed up some stairs, banged on the door of the flat. Upon answering the door, the occupant saw her holding a knife in her hand. She began to complain about the behaviour of “your fucking boys”. When the occupant informed Crane that she did not have any boys, Crane went to the flat of David Thompson, whose wife opened the door. Crane was abusive to this lady and waved a knife around, accusing the woman’s children of being disrespectful. The lady told Crane that she did not want to become involved in a fight and closed the door. Thereafter, Crane was heard by various people to have shouted that she “was going to stab” the lady and that she had friends with “shooters”.

Crane returned to her flat. When David Thompson arrived back at the block of flats he became involved in an argument with Crane. She threw earth from a flowerpot at him, who promptly threw earth back at her. Crane subsequently threw a skateboard at David Thompson, but fortunately it missed him. When David Thompson went up the stairs to his flat, Crane, who was holding a knife, pursued him and stabbed him twice outside his front door. When David Thompson’s wife came to his assistance, Crane would not let go of the knife despite being bitten on the arm. David Thompson fell to the ground and the emergency services were summoned. David Thompson was taken to hospital but later died, having sustained three significant injuries. The fatal wound was a stab to the chest permeating the heart. He also had a small stab wound to his face and a laceration to his head consistent with a fall to the floor.

Having stabbed David Thompson, Crane left the scene. She was subsequently arrested and, when interviewed, essentially said that she was not aware she had the knife with her when she followed David Thompson up the stairs to remonstrate with him. Crane also said that she had been assaulted by David Thompson and that she did not intend to cause any injury to him.

Crane pleaded guilty on rearraignment. She is now 26 years of age and she has a number of previous convictions, of which the most significant is one for robbery for which she was sentenced to three years imprisonment on 14 February 1997.

The judge had before him a psychiatric report from Dr. T. L. McLintock, a Consultant Forensic Psychiatrist, which stated that Crane was not suffering from any mental illness. In a subsequent addendum to the report, Dr. McLintock said that, following the receipt of further information and a further examination of Crane, he had concluded that she suffered from a dependent personality disorder, which amounted to an abnormality of the mind. Nevertheless, he said it was difficult for him to find an association between the appellant’s disorder and the murder of David Thompson.

In sentencing Crane, Judge Tilling considered that in a fit of anger fuelled by drink, the appellant had deprived a family of a husband and a father as she had deliberately taken the knife and used it with deadly effect. He accepted that the appellant had been the object of physical violence herself, but her record showed that she was also capable of violence. The judge gave the appellant credit for her guilty plea and her expression of contrition. He took the view that his starting point was 14 years, but in view of the mitigating features which included her plea, her age and his conclusion that Crane did not intend to kill but only to cause serious bodily harm, the minimum sentence would be reduced to 12 years less the period of 270 days, which she had spent in custody.

Mr John Ryder QC, for Crane, contends that if the judge had selected 14 years as a starting point, there had to be a further reduction from this period. He points out that there are three mitigating factors set out in Schedule 21 of the 2003 Act which were present, namely first, that the intention on the part of the appellant was to cause grievous bodily harm to David Thompson and not to kill him, second, a lack of planning of the murder by Crane and third, her age. He also says that Crane’s harrowing personal history and her resulting personality disorder warranted and deserved recognition in the sentencing process.

He submitted that Crane had a happy and stable life until she was 13 years old when her mother unexpectedly left the family home. Thereafter, her father was unable to cope, being habitually tearful and unable to get out of bed or to care for the family. In consequence, Crane became responsible for the family and, when her father moved to another part of the country with a new partner, she was left behind to fend for herself at the age of 15. Without any guidance or support, Crane eventually moved to live with her cousin, whose friends were malign influences. Within four weeks of moving to London, Crane was involved in a robbery for which she was sentenced on 14 February 1997. She was subsequently subjected to severe brutality by her partner, which has had a serious effect on her.

As this murder occurred in July 2003, Crane is entitled to the protection of the transitional provisions contained in Schedule 22 of the 2003 Act. However, the provisions of Schedule 21 should be considered first. Under Schedule 21ofthe 2003 Act, the starting point is 15 years. The aggravating and the mitigating factors then have to be taken into account. This exercise having been completed, we then have to consider whether the minimum period the Secretary of State would have notified in December 2002 would have been lower. If it would, we have to apply the lower figure.

Whether the calculations are carried out under Schedule 21 or 22, we are unable to accept the contention of Mr Ryder that the judge erred in imposing a minimum term of 14 years, less the time spent in custody. A starting point of 14 years would have reflected the mitigating factors to a greater extent than would a starting point of 15 years under Schedule 21 (See Sullivan paragraph 25).

Mr Ryder’s submissions fail to take account of the aggravating features in this case, which were; first, that the appellant was armed with a knife as she pursued David Thompson up to his flat, and second, that she had previously received a sentence of three years imprisonment for robbery.

These factors would have led to an increase in the starting point, although we accept that there were countervailing mitigating features because first, as the prosecution accepted, the intention of the appellant was to cause grievous bodily harm to David Thompson and not to kill him, second there was a lack of planning of the murder by Crane, and third, she pleaded guilty. It is, however, significant that she only pleaded guilty on re-arraignment at the door of the court, and thus is only entitled to very limited credit for this plea as we have explained.

We have to take account all the circumstances and then review the sentence to ensure that the minimum term accurately reflects the seriousness of the offence, after considering the starting point as well as all aggravating and mitigating factors including any guilty plea. Having carried out this task, we have come to the conclusion that the sentence imposed by Judge Tilling fell within the acceptable bracket in the light of what the Secretary of State would have notified in December 2002.

In those circumstances, this appeal must be dismissed.

The Solicitor General applies under section 36 of the Criminal Justice Act 1988 for leave to refer to this Court a sentence, which she regards as unduly lenient. We grant leave.

The offender, Lee David Holbrook, who is now 40 years of age, pleaded guilty to a count of murder in the Crown Court at Plymouth on 2 August 2004. He was sentenced by Judge Taylor, the Recorder of Plymouth, to a mandatory life sentence with a minimum term of 11 years and 94 days. This sentence represented a minimum term of 12 years with a reduction of 260 days for the period spent by the offender in custody prior to sentence being passed. It is the minimum term of 12 years imprisonment, which is the subject of the present application by the Solicitor General.

The appellant, who is married with two children, had worked as a bus driver since January 2003. He regularly drove a circular route out of Plymouth, through villages to the west and then back through Dartmoor into the City. The victim, Alicia Joanne Eborne was born on 22 January 1985. She was 18 years of age at the time of her death on 7 November 2003. She lived with her family in the village of Cornwood in Devon, and studied at the College of Further Education in Plymouth.

At about 8.49 am on 7 November 2003, Alicia Eborne (“Alicia”) caught the bus from Cornwood in order to travel to Plymouth. The appellant was the driver of the bus. When Alicia failed to attend her classes at college, or to arrive for her part-time job, a massive police search was launched.

On 9 November 2003, Alicia’s parents spoke to the appellant at the bus depot, but he lied to them, explaining that nobody of Alicia’s description had boarded his bus and that no-one had got on the bus at her usual stop in Cornwood. The following day, police officers noted that the offender’s face was scratched and he was arrested, having provided inconsistent accounts in witness statements.

The appellant was interviewed on a number of occasions over the next three days, but he maintained that he was not involved with Alicia’s disappearance until he was confronted, first, with the account of a witness who had seen the bus parked off its usual route on the morning of 7 November 2003 and second, with the evidence of one of his colleagues, who described the appellant unusual behaviour with noticeable fresh scratches to his face when he returned to the depot later that day.

At that point, the appellant confessed to the abduction and murder, stating, “I have murdered her. It was nothing pre-meditated. It was just an opportunity. She was on my bus. I didn’t set out to murder her”.

The appellant explained to the police that, after he had picked up Alicia, the rest of the passengers left the bus at a village and that he had turned off the normal route before parking his bus on a road to the side of Heleball Wood. The appellant said that he then propositioned Alicia, asking her for sexual intercourse, but she refused stating that she was going to report the offender to the police. The appellant said that he “snapped” and that he strangled Alicia with a scarf, which she was wearing and that during the struggles, he received the scratches to his face.

According to the appellant, when Alicia had been attacked, he put her body behind a stone wall before driving the bus back onto the scheduled route and completing his duties. He admitted undoing Alicia’s trousers and touching her vagina after he carried the body off the bus, but denied any attempt to penetrate her.

The appellant told the police that when he finished working on that day, he returned to the place where he had left Alicia’s body in his Land Rover and he put her body into the vehicle before driving it to Denim Woods, some four miles from the scene of the attack. When the offender arrived there, he said that he rolled Alicia’s body down a 50-foot embankment and covered it with leaves. With the assistance of the appellant, the police recovered Alicia’s body. Her pants and trousers were around her knees and her bra had been pulled down to expose a nipple. The post mortem examination revealed a scratch about an inch above the vagina, but no further evidence of sexual assault.

The family of Alicia Eborne have prepared a moving statement explaining the impact of Alicia’s death on them, and we will take its contents into account. On the day on which the offender’s trial was due to start, the offender changed his plea to one of guilty. Although the offender had a conviction for theft in 1988, he was treated as a man of good character.

Judge Taylor, in sentencing the offender, took the view that the starting point for fixing the minimum term should be 15 years imprisonment, bearing in mind first, that Alicia was in the care of the offender, second, that there was a sexual motive behind the murder and third, that the offender concealed Alicia’s body not once but twice. The learned judge then reduced the tariff to 12 years on account of first, the offender’s plea of guilty, second, his period on remand in the utmost security and third, the fact that he had given details to the police so that Alicia’s body could be recovered.

Mr Laidlaw for the Solicitor General contends that the learned judge set the starting point for the minimum term at too low a level, and that he gave too great a deduction for the mitigating features, with the result that the 12 year minimum term imposed as the period of detention for punishment and deterrence failed adequately to reflect the gravity of the offence, the aggravating features present, the need to deter others and the public concern about cases such as this.

Mr Laidlaw relies on five particular factors in support of his submission that the sentence passed was too low. First, he says that this was an unprovoked killing carried out by the offender with the intention of preventing the victim reporting his attempt to have sex with her. Second, he points out that there was a sexual element to the attack and evidence of sexual maltreatment of Alicia. Third, as the driver of a public service vehicle, the offender held a position of responsibility and the offence represented a breach of the trust placed in him. Fourth, the victim was particularly vulnerable to an attack such as this. Fifth, following the killing, the appellant sought to conceal the body and gave false accounts of his movements to Alicia’s parents when they approached him for help.

Mr Laidlaw accepts that there are also a number of mitigating factors as the appellant is to be treated as a man of previous good character, he accepted responsibility for the killing, in interview he showed the police where Alicia’s body was and he eventually pleaded guilty to the offence. At the Plea and Directions hearing, the appellant had pleaded not guilty on the basis that he did not have an intention to kill or cause serious bodily harm to Alicia.

This murder occurred within the transitional period, as it was committed in November 2003. Thus, it is necessary to ascertain whether a minimum term calculated under Schedule 21 of the 2003 Act is greater than the term which would probably have been notified by the Secretary of State under the practice followed by the Secretary of State before December 2002.

Under Schedule 21 of the 2003 Act, the appropriate starting point would have either been 15, or more likely, 30 years, bearing in mind that this was a case of a young, vulnerable woman being attacked by somebody providing a public service with a sexual element (see paragraph 5 (2) (c)).

As explained in Sullivan, if the higher 30 year starting point is selected, then the transitional provisions of Schedule 22 become of particular importance. These are contained in the consolidated Practice Directions and are to be applied as explained in Sullivan, (paragraphs 23 to 45). However, it is not necessary to set out the terms of the Practice Directions here as Mr Laidlaw QC, on behalf of the Solicitor General, and Mr Taylor, for the offender, accept that the starting point should have been a period of 15 or 16 years, applying the Practice Directions. These are therefore the starting points we select.

Mr Taylor goes on to submit that the 15/16 year starting point takes into account all the aggravating factors of the case and that therefore the need to take these factors into account to subsequently increase the starting point amounts to counting these factors twice.

We are not persuaded by these contentions because there were serious additional aggravating features, which are expressly referred to in paragraph 49.28 of the Practice Statement. These include the fact that this killing was planned (as was shown by the fact that the offender drove the bus off the main route before committing the offence) and also, that the body had been concealed. In addition, Alicia was particularly vulnerable to an attack of the kind perpetrated by the offender. We also regard, as a particularly potent aggravating factor, the fact that Alicia was murdered because she was going to make a complaint against the appellant relating to the sexual demands which he made on her.

These aggravating factors would inevitably lead to a substantial increase from the starting point of 15/16 years so we consider that if this offender had been convicted after a trial, he is likely to have been the subject of a minimum term of somewhere in the region of 22 years (whether under Schedule 21 or as being the term, which would probably have been notified by the Secretary of State under the practice followed by him before December 2002).

He is also entitled to credit for his guilty plea, albeit at the door of the court. As we have explained, this would have entitled him to a maximum discount of 5%. A further mitigating factor is his previous good character. Section 272 of the 2003 Act provides that the principle of double jeopardy does not apply to applications, such as the present one, under section 36 of the Criminal Justice Act 1988 and so we do not make a reduction on that ground.

Standing back, as we are obliged to do in order to reach what is the appropriate minimum term, and taking account of the aggravating and mitigating circumstances, we have come to the conclusion that, in all the circumstances, the sentence which should have been imposed in this case is 20 years, whether under the 2003 Act, or as being the term, which would probably have been notified by the Secretary of State under the practice followed by the Secretary of State before December 2002. The minimum term is increased accordingly.

These appellants are brothers. Their appeals are distinct from those in the other cases because their offence was committed on the evening of 24 June 2004, after the 2003 Act came into force. It is therefore unnecessary to deal with the transitional provisions contained in Schedule 22. Edward Quillan is the older of the two brothers, having been born on 23 June 1980. He is therefore now 24 years of age. His brother James was born on 25 November 1985 and so is 19. At the time of the offence, he would have been 18 years of age.

The two brothers appeared before the Recorder of Preston, His Honour Judge Openshaw QC, in the Crown Court at Preston on 28September 2004 and pleaded guilty. James Quillan had pleaded guilty at Blackpool Magistrates Court on 29 September 2004 to an offence of inflicting grievous bodily harm, and he was sentenced to 2 years detention in a Young Offenders Institution concurrent. For the offence of murder, Edward Quillan was sentenced to life imprisonment with a minimum term of 24 years 9 months and James Quillan was sentenced to imprisonment with a minimum term of 18 years 9 months. There was therefore a difference of 6 years in the minimum terms imposed.

Both appellants (“we grant them leave to appeal”) knew the 70 year old victim, James Flemming. The victim was a familiar figure in the local pubs and with bookmakers. He was something of a character. He spent a lot of time alone and was considered to be a private man but enjoyed some success at his betting. In May 2004, a month before his death, he won over £3000 in one day, and on 24 June 2004, the day of his death, he collected £465.71 in winnings.

According to the Crown, the appellants made a plan and a pre-determined effort to carry out the robbery and killing. They knew the victim was vulnerable and elderly. They killed him because they needed his money for drugs and he was an easy target. They announced their intention to a flatmate and then proceeded to carry out the plan.

The appellants left their home at about 7.30 pm and went to the block where the victim lived. An international football match between England and Portugal was being played on that evening and no suspicions were aroused. They were seen leaving after the football match. Later Edward Quillan paid a £10 debt he owed to a woman, with the money being taken from a large wad of cash which was in the possession of his brother.

When the appellants returned home, they told a flatmate that they had killed the victim and found £500 in his pocket. They said that they were going to buy amphetamines with the money. They explained that they had strangled the victim, but, because he did not look as though he was going to die, the younger brother had picked up a pair of scissors and stabbed him in the throat and the older brother had then stabbed him in the chest. They said they had disposed of potentially incriminating evidence by emptying ashtrays, throwing glasses into a pond and getting rid of the scissors. They asked the flatmate to keep quiet about the attack and to give them an alibi if the police called.

The following day, they went on a spending spree. The victim’s body was not found until the morning of 26 June 2004. The pathologist concluded that the wound to the right side of the victim’s neck had damaged a blood vessel or vessels and caused the right lung to collapse. In the case of a man with a long-standing lung disease, as was the case with the victim, this would have reduced his ability to breathe to the point that death would result.

After the spending spree the appellants laid low for a couple of days. Then, on 28 June 2004, they called their father and told him what they had done, asking him for his help. The father refused and told them to hand themselves in. They refused to do this and the father commendably contacted the police and told them about the conversation with his two sons.

On 29 June 2004, the appellants were arrested. When interviewed they both denied killing or robbing the victim.

The Recorder, in his sentencing remarks, made clear that he was applying Schedule 21 of the 2003 Act and the case of Sullivan. The judge also referred to the relevant circumstances of the offence. He came to the conclusion that the murder was clearly pre-meditated and that it was for purposes of robbing the victim.

In relation to Edward Quillan, he said that he did not regard his age as a mitigating factor. He pointed out that he had a number of previous convictions, including one for an offence of assault which was itself a very serious matter. (He had, when disguised with a mask and armed with a knife, entered a home of a 74 year old woman intending to rob her. He was arrested at the scene and subsequently sentenced to 5 years imprisonment.) The judge regarded this as an aggravating factor. He fixed the starting point in this case at 30 years.

As to James Quillan, the judge concluded that there were good reasons to make a distinction between him and his older brother. He did not have such a significant prior conviction. However, he was on bail for an offence of inflicting grievous bodily harm at the time and that was taken into account by the judge.

The reason for distinguishing between James and his brother is that he is now aged 19 and, more importantly, at the date of the offence, (which is the critical date) was 18. The statutory starting point was therefore also 30 years. If he had been 6 months younger at the time of the offence there would only have been one starting point of 12 years (Schedule 21 paragraph 6). However, the fact that the starting point would be 12 years, in the case of an offender nearly 18, as we have seen already, would not be of substantial significance in determining the final result.

The Guidance on guilty pleas available to the judge was the draft Guidance and not the final Guidance. As to the reduction of minimum terms this experienced judge said as to the giving of a discount for a guilty plea :

The judge then referred to the fact that a basis of plea had originally been put forward, which was subsequently withdrawn when it was not acceptable to the prosecution, and so the judge concluded, “their pleas do not demonstrate contrition or remorse”. He added “their pleas were no doubt a considered strategy to reduce the sentence which would otherwise be passed”.

The judge then pointed out that he was reducing Edward Quillan’s sentence to 25 years and that James Quillan’s minimum term was to be 19 years. From these figures, the judge reduced the minimum term by the period already spent in custody by the appellants.

In the case of Edward Quillan, Mr Fish QC contends on his behalf that the starting point of 30 years was too high, insufficient credit was given for the plea of guilty and that the minimum period was in excess of what was justified in all the circumstances of the case.

In the case of James Quillan, complaint is made by Mr Reid QC that a different starting point should be taken, insufficient credit was given for the early guilty plea and that the judge erred in not applying the draft Guidelines issued before the final Guidelines.

As to the draft Guidelines, it is relevant to note that all they state as to murder is that “the contents of this Guideline will also assist sentencers when arriving at the appropriate minimum term for the offence of murder, applying the Criminal Justice Act 2003, paragraph 12 of the Schedule 21”. In summary, they would not have been of significant assistance to the judge.

The present appeals show that the application of Schedule 21 to particularly serious murders can significantly increase the minimum period which would have been imposed prior to the 2003 Act. In our judgment, this makes it necessary in these appeals, having considered all the circumstances, to stand back and ask whether the minimum terms are in accordance with what Parliament intended by its guidance contained in Schedule 21. The examples given in paragraph 5(2) of the Schedule must not be construed too technically. The offence must, in the language of paragraph 5(1) of the Schedule, be one of “particularly high” seriousness. In addition, it is important to consider all the circumstances when asking whether the difference between the sentences imposed here upon the two brothers, can be justified.

So far as the commission of the offence itself is concerned, there was little, if anything, to choose between the brothers. However, there was the serious previous conviction of the older brother and the difference in age. Parliament has undoubtedly indicated that the heavier minimum period of 30 years imposed by Schedule 21 was to be very significantly mitigated in the case of those under 18. As the judge pointed out if James Quillan had been 6 months younger the relevant starting point would have been 12 years (not as the judge indicated 15 years). It seems to us that was a perfectly proper point for the judge to take into account, as was the previous conviction. The judge in these circumstances took a “starting point” of 24 years. (This was actually a discounted starting point reflecting these two distinguishing features.)

We do regard this as a crime for which the statutory starting point is now 30 years for a person over 18 at the date of the offence. This was a murder done for gain in the course of a robbery in the victim’s home; one of the circumstances which is identified as particularly serious pointing to a starting point of 30 years. In addition, the victim, because of his age, was in our judgment vulnerable and probably particularly vulnerable, which is an aggravating factor, though not a factor which would carry much weight in the case of a 30 year starting point.

So far as the older brother is concerned, we regard the minimum period on a plea of guilty as being at the top of the bracket but not excessive. Although the Recorder would not have known this, the Guidance for Guilty Pleas places a cap on the discount for a plea of guilty at 5 years. We have also come to the conclusion that the difference between the treatment of the two brothers is justified because of their different records and different ages. Accordingly we have come to the conclusion that we cannot interfere with the minimum periods which are imposed.

We dismiss both of these appeals.