O'Brien, R v

LORD JUSTICE CLARKE: This is the judgment of the court.

The appellant is Michael O'Brien, who was 22 at the time of the offence. On 12th July 2004, at the Crown Court at Nottingham, before His Honour Judge Pollard and a jury, the appellant was convicted of murder and of making a threat to kill. He was sentenced to life imprisonment for the murder and to 3 years' imprisonment concurrent for making a threat to kill. The total sentence was life imprisonment with a specified period of 23 years 1 month and 23 days. He appeals against the minimum period by leave of the single judge, Tomlinson J.

The facts may be shortly stated. The appellant associated with a man called Salmon. They both had an animosity to a group of people associated with a family called Gunn, who had considerable influence over their community and a number of public houses in a district of Nottingham. The background to the offence was that a firearm was discharged at Salmon's home by persons unknown at a time when Salmon was inside the house. Salmon did not, however, make a formal complaint about that incident.

On the evening of 29th August 2003 the appellant and Salmon were out together and about 10 pm they met up with two women at a public house. Shortly before midnight they tried to gain entry to a nightclub, but they were refused entry. An argument then took place between the appellant and one of the doormen, during which he made threats to shoot the door staff. The threat implied that he was going to leave and arm himself, before returning. That was the basis of the count which alleged making a threat to kill.

The two men then went to a snooker club, where they met two girls, whom they took back to Salmon's home address. They stayed at Salmon's house with the girls for about two hours, before Salmon's girlfriend called from a public house called The Sporting Chance asking for a lift home. The appellant and Salmon went to The Sporting Chance. Salmon's girlfriend and two other women got into the car. The appellant went into The Sporting Chance, where he was confronted by a number of the customers, including a member of the Gunn family, who struck him on the head with an ashtray, causing a cut above his left eye. He then ran to Salmon's house, which was a short distance away, where he was treated for his injury. After Salmon had taken the women home, he rejoined the appellant in his house. Having armed himself with a shotgun, the appellant walked back to the public house with Salmon. Gunn and some others were waiting to leave in a car, but as the car drove towards the exit of the car park the appellant discharged the gun from close range, hitting the driver, Marvyn Bradshaw, in the head and a passenger, Lyndon Leith, on the arm. He then returned on foot with Salmon to Salmon's house. Mr Bradshaw subsequently died from his injuries.

The appellant has a substantial number of previous convictions. They are mostly for theft but include attempted burglary and burglary, and, more significantly, two robberies committed in June and July 1999. It is right to say, however, they do not include firearms offences or offences of violence or anything like that with which this case is concerned.

In passing sentence the judge said that it was clear that the appellant had been forced to leave the public house and, as he left, he was injured by an ashtray. The jury had resolved that that did not justify what he subsequently did. He had armed himself with a single-barrelled shotgun and, having loaded it, went back to the public house and shot a wholly innocent man in the back of his head. There was no doubt that he intended to kill him because of what he had said to one of the women. Apart from the very limited mitigation that came from his age, there was no mitigation. The mandatory sentence was life imprisonment, but the court had to specify the length of time he would serve. Had he fallen to be sentenced under Schedule 21 of the Criminal Justice Act 2003 the appropriate starting point would have been 30 years. However, the Act required the appropriate period to be calculated as the law stood at the time he committed the offence. The recent case of Sullivan gave the relevant guidance, and therefore the appropriate starting point was 12 years. The aggravating feature was the deliberate and calculated use of a firearm after he had left to arm himself with it, announcing his intention to kill and then going and carrying it out. He had not shown one shred of remorse. This was a very serious case indeed and the courts would do what they could to deter and eradicate gun crime. There would be a slight reduction in the minimum period to 24 years to reflect his age. The 10 months 3 days he had spent on remand would be deducted from that period. The sole question in this appeal is whether that minimum period of 24 years was manifestly excessive.

In granting leave to appeal the single judge said this:

The relevant principles are not in dispute and were expressly referred to by the judge. They are set out in Sullivan [2004] EWCA Crim 1762, which was handed down on 8th July 2004. The starting point is Schedule 21 of the Criminal Justice Act 2003 ("the Act"). Section 269 provides:

This is not a case in which it was appropriate for the court under section 269(4) to make no order under section 269(2). The court must therefore fix "the part of the sentence defined by section 269(3)". It is not in dispute that it was appropriate to give credit for the period of ten months and three days that the appellant had spent on remand in accordance with section 269(3)(b). The court thus had to determine the part of the sentence which it considered appropriate taking into account the seriousness of the offence in accordance with section 269(3)(a).

In considering the seriousness of the offence, the court was bound to have regard to the general principles set out in Schedule 21 under section 269(5)(a) and to any relevant guidance within section 269(5)(b). The judge did that and, applying section 29, held that the appropriate starting point was or would have been 30 years. It is not suggested that the judge was wrong in that regard. He was, in our view, plainly correct having regard to the provisions of paragraph 5(1) and (2)(a) of Schedule 21 because the murder involved the use of a firearm. The judge held that it would be appropriate to make a slight reduction from the starting point of 30 years having regard to the appellant's age.

He no doubt did so pursuant to paragraphs 8 and 9 of Schedule 21, which provides:

The appellant's case is governed by Schedule 22 to the Act (see section 276). Schedule 22 provides, so far as relevant:

This case is governed by paragraphs 9 and 10 because the murder was committed on 30th August 2002, which was of course before the commencement date, which was 18th December 2003.

In Sullivan this court considered what was the practice followed by the Secretary of State before December 2002. In paragraph 23 of the judgment of the court in Sullivan, which was delivered by the Lord Chief Justice, the court identified the purpose of paragraph 10, namely to avoid the offender having a minimum term which would be contrary to Articles 5 and 7.1 of the European Convention on Human Rights. They prohibit a heavier penalty than could have been imposed at the time the offence was committed. Since a minimum term is a "penalty" for this purpose, it follows that the minimum term calculated in accordance with Schedule 21 must not exceed the minimum term which would have been capable of being imposed at the time the offence was committed, namely 30th August 2003. As the court observed in paragraph 26 in Sullivan, the problem was to identify what was the practice of the Secretary of State prior to December 2002. The court concluded that the best guide to that practice was the practice directions issued by Lord Bingham CJ and Lord Woolf CJ, although, as the court put it in paragraph 27:

The court considered a number of directions given by Lord Bingham and Lord Woolf. It first considered a letter sent to the judges on 10th February 1997 and a practice statement dated 27th July 2000 which identified a period of more than 30 years in very rare cases and a 14-year norm. The court then considered the advice of the Sentencing Advisory Panel of 15th March 2002, which noted that minimum terms varied "widely above and below the 14-year norm" and suggested three starting points. They were a higher, middle and lower starting point, namely 15/16 years, 12 years and 8/9 years. The court in Sullivan held, at paragraph 31, that there was no inconsistency between Lord Bingham's 14 years and the Panel's 12 years, which was designed to cover the case "that arises from a quarrel between two people known to each other". The advice was implemented in a practice statement handed down on 31st May 2002 by Lord Woolf [2002] 1 WLR 1789.

The practice statement included the Panel's description of the kind of case suitable for a 12-year starting point. It then set out some of the paragraphs of the May 2002 practice direction, to which we shall return in a moment, and summarised the position thus in paragraph 33:

In paragraph 34 the court emphasised the fact that both Lord Bingham's approach and the 2002 directions give the judge a considerable degree of discretion.

In paragraph 38 and following the court considered a later practice direction, dated May 2004, which set out guidance previously given by a letter from Lord Woolf to the judges dated 16th December 2003. However, as we read the judgment, the court decided that the court should use the May 2002 practice direction and not the subsequent direction in the future in respect of cases where the offence took place after 31st May 2002 and before 18th December 2003.

Since the decision in Sullivan and indeed since the decision of the judge in this case, a new practice direction dated 29th July 2004 has been issued. It amends the Consolidated Criminal Practice Direction handed down by the Lord Chief Justice on 8th July 2002 and replaces that of 18th May 2004. It reflects the decision in Sullivan: see paragraphs IV 49.14 to 21. The practice direction reproduces the relevant paragraphs of the May 2002 practice direction: see paragraph IV 49.22. For present purposes the following paragraphs of the July 2004 practice direction are relevant:

Mr Evans submits that in arriving at a minimum period of 24 years the judge must have taken too high a starting point, perhaps by having regard to a starting point of 30 years which would have been applicable under Schedule 21. We are not persuaded that the judge in fact did that, if only because he said that he took a starting point of 12 years. But, if he did, we accept the submission that he was wrong to do so.

It is plain from the principles set out in Sullivan above that the essential question is what would have been the starting point under the May 2002 practice direction.

As to the starting point of 12 years, paragraph IV 49.24 provides that "cases falling within this starting point will normally involve the killing of an adult victim, arising from a quarrel or loss of temper between two people known to each other". That, in our judgment, is a far cry from the present case. The appellant used a firearm to commit this murder. It is true that use of a firearm is not included in the list of cases in paragraph IV 49.26 which considers the higher starting point of 15/16 years. However, as its opening words indicate, that paragraph is concerned with cases in which the offender's culpability is exceptionally high. In our judgment this is such a case. The list of particular cases in the paragraph is a list of examples of such a case. In this case the appellant made a random decision to kill the victim in cold blood. We are of the view that the appropriate starting point here is the higher starting point of 15/16 years provided for in IV 49.26.

In this case there is an important aggravating circumstance within those identified in IV 49.28, namely the use of the firearm. In deciding what the relevant period should be, the essential question, in our judgment, is whether this was an "especially grave" offence of the kind contemplated by paragraph IV 49.33 as meriting a term of 20 years and upwards. Mr Evans submits that it is not. He points to the appellant's age, to the fact that there was no long period of planning or premeditation here and to the fact that, apart from two robberies, the appellant does not have a record of violence and has not previously been convicted of using a firearm.

Against that the judge said this:

We agree. We have reached the conclusion that it was appropriate to take the 15/16-year starting point and not the 12-year starting point apparently taken by the judge.

In conclusion, taking account of the aggravating features identified by the judge which we have just quoted, but having regard to the submissions made by Mr Evans, we have concluded that 24 years was manifestly excessive. We accept Mr Evans' submission that this case does not fall within the "especially grave" category of case under IV 49.33 and that an appropriate period should have been 18 years less the 10 months 3 days on remand. The result is that, subject to the precise calculation depending upon which month is considered, the relevant period is 17 years 1 month and 28 days.

We should add that if we had concluded that this was a case in which the starting point was 12 years or, indeed, the 14 years referred to by Lord Bingham, having regard to the aggravating features and the other factors of the particular case, the right figure would in any event be 18 years.

For those reasons this appeal is allowed to that extent.