Jones, R v

The court has heard together four appeals and three applications for permission to appeal against sentence, of which three appeals and one application are by co-defendants. Two of those co-defendants were sentenced for the crime of murder. The other appeal and the other two applications are by defendants who were sentenced for the crime of murder. Each of the murders was committed after 18 December 2003 when the provisions of section 269 of the Criminal Justice Act 2003 and Schedule 21 of that Act came into force. Schedule 21 gives statutory guidance in relation to the determination by the judge of the minimum term to be served by those who are given a mandatory life sentence. Transitory provisions set out in Schedule 22 affect the application of that guidance in the case of offences committed before 18 December 2003. These are cases to which the transitory provisions have no application. They have been heard together so that this court can provide general assistance in respect of the application of the statutory guidance.

In R v Sullivan and other appeals [2004] EWCA Crim 1762; [2005] Cr.App.R.(S) 308 this court, presided over by Lord Woolf CJ, gave guidance on the application of schedules 21 and 22 in relation to four appeals by murderers to whom the transitory provisions applied. Part of that guidance is of equal relevance to cases to which the transitional provisions do not apply. The judgment also sets out in full the relevant statutory provisions. We do not propose to repeat that exercise, nor to repeat the general guidance given in Sullivan. The statutory provisions and the relevant guidance in relation to them are to be found at pages 314 to 325 of the report. We shall, however, set out those parts of section 269 of the 2003 Act and those parts of Schedule 21 which are of particular relevance to these appeals.

Further guidance in respect of the determination of the minimum term in murder cases, with particular relevance to young offenders, was given by this court in R v Peters and other appeals [2005] EWCA Crim 605.

269.

Determination of minimum term in relation to mandatory life sentence

(1)

This section applies where after the commencement of this section a court passes a life sentence in circumstances where the sentence is fixed by law.

(2)

The court must, unless it makes an order under subsection (4), order that the provisions of section 28(5) to (8) of the Crime (Sentences) Act 1997 (referred to in this Chapter as "the early release provisions") are to apply to the offender as soon as he has served the part of his sentence which is specified in the order.

(3)

The part of his sentence is to be such as the court considers appropriate taking into account-

(a)

the seriousness of the offence, or of the combination of the offence and any one or more offences associated with it, and

(b)

the effect of any direction which it would have given under section 240 (crediting periods of remand in custody) if it had sentenced him to a term of imprisonment.

(4)

If the offender was 21 or over when he committed the offence and the court is of the opinion that, because of the seriousness of the offence, or of the combination of the offence and one or more offences associated with it, no order should be made under subsection (2), the court must order that the early release provisions are not to apply to the offender.

(5)

In considering under subsection (3) or (4) the seriousness of an offence (or of the combination of an offence and one or more offences associated with it), the court must have regard to-  

(a)

the general principles set out in Schedule 21, and

(b)

any guidelines relating to offences in general which are relevant to the case and are not incompatible with the provisions of Schedule 21.

SCHEDULE 21

Section 269(5)

DETERMINATION OF MINIMUM TERM IN RELATION TO MANDATORY LIFE SENTENCE

Interpretation

1.

In this Schedule-

“child” means a person under 18 years;

“mandatory life sentence” means a life sentence passed in circumstance where the sentence is fixed by law;

“minimum term”, in relation to a mandatory life sentence, means the part of the sentence to be specified in an order under section 269(2);

“whole life order” means an order under subsection (4) of section 269.

2.

Section 28 of the Crime and Disorder Act 1998 (meaning of "racially or religiously aggravated") applies for the purposes of this Schedule as it applies for the purposes of sections 29 to 32 of that Act.

3.

For the purposes of this Schedule an offence is aggravated by sexual orientation if it is committed in circumstances falling within subsection (2)(a)(i) or (b)(i) of section 146.

Starting points

4    (1) If-

(a)

the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is exceptionally high, and

(b)

the offender was aged 21 or over when he committed the offence,

the appropriate starting point is a whole life order.

(2)

Cases that would normally fall within sub-paragraph (1)(a) include-

(a)

the murder of two or more persons, where each murder involves any of the following-

(i)

a substantial degree of premeditation or planning,

(ii)

the abduction of the victim, or

(iii)

sexual or sadistic conduct,

(b)

the murder of a child if involving the abduction of the child or sexual or sadistic motivation,

(c)

a murder done for the purpose of advancing a political, religious or ideological cause, or

(d)

a murder by an offender previously convicted of murder.

5    (1) If-

(a)

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 and one or more offences associated with it) is particularly high, and

(b)

the offender was aged 18 or over when he committed the offence,

 the appropriate starting point, in determining the minimum term, is 30 years.

(2)

Cases that (if not falling within paragraph 4(1)) would normally fall within sub-paragraph (1)(a) include-

(a)

the murder of a police officer or prison officer in the course of his duty,

(b)

a murder involving the use of a firearm or explosive,

(c)

a murder done for gain (such as a murder done in the course or furtherance of robbery or burglary, done for payment or done in the expectation of gain as a result of the death),

(d)

a murder intended to obstruct or interfere with the course of justice,

(e)

a murder involving sexual or sadistic conduct,

(f)

the murder of two or more persons,

(g)

a murder that is racially or religiously aggravated or aggravated by sexual orientation, or

(h)

a murder falling within paragraph 4(2) committed by an offender who was aged under 21 when he committed the offence.

6.

If the offender was aged 18 or over when he committed the offence and the case does not fall within paragraph 4(1) or 5(1), the appropriate starting point, in determining the minimum term, is 15 years.

7.

If the offender was aged under 18 when he committed the offence, the appropriate starting point, in determining the minimum term, is 12 years

Aggravating and mitigating factors

8.

Having chosen a starting point, the court should take into account any aggravating or mitigating factors, to the extent that it has not allowed for them in its choice of starting point.

9.

Detailed consideration of aggravating or mitigating factors may result in a minimum term of any length (whatever the starting point), or in the making of a whole life order.

10.

Aggravating factors (additional to those mentioned in paragraph 4(2) and 5(2)) that may be relevant to the offence of murder include-

(a)

a significant degree of planning or premeditation,

(b)

the fact that the victim was particularly vulnerable because of age or disability,

(c)

mental or physical suffering inflicted on the victim before death,

(d)

the abuse of a position of trust,

(e)

the use of duress or threats against another person to facilitate the commission of the offence,

(f)

the fact that the victim was providing a public service or performing a public duty, and

(g)

concealment, destruction or dismemberment of the body.

11.

Mitigating factors that may be relevant to the offence of murder include-

(a)

an intention to cause serious bodily harm rather than to kill,

(b)

lack of premeditation,

(c)

the fact that the offender suffered from any mental disorder or mental disability which (although not falling within section 2(1) of the Homicide Act 1957), lowered his degree of culpability,

(d)

the fact that the offender was provoked (for example, by prolonged stress) in a way not amounting to a defence of provocation,

(e)

the fact that the offender acted to any extent in self-defence,

(f)

a belief by the offender that the murder was an act of mercy, and

(g)

the age of the offender.

12.

Nothing in this Schedule restricts the application of-

(a)

section 143(2) (previous convictions),

(b)

section 143(3) (bail), or

(c)

section 144 (guilty plea).

In all the cases except Hobson a starting point for the murder sentences of 30 years was adopted. In each case it is contended that the appropriate starting point was 15 years, albeit that the sentence should have moved upward from this starting point to reflect aggravating factors. In Hobson a whole life tariff was adopted, whereas it is contended that a thirty year starting point would have been appropriate in order to reflect the fact that the appellant had pleaded guilty.

Perhaps the most important general point to be made in respect of these cases is one that this court made in both Sullivan and Peters. The guidance given by Schedule 21 is provided to assist the judge to determine the appropriate sentence. The judge must have regard to the guidance, but each case will depend critically on its particular facts. If the judge concludes that it is appropriate to follow a course that does not appear to reflect the guidance, the judge should explain the reason for this.

The next point to make is that there are huge gaps between the starting points. The difference between fifteen and thirty years detention is enormous. The difference between thirty years and whole life may, depending on the age of the offender, be even greater. The three starting points provide a very broad framework for the sentencing exercise. They are so far apart that it will often be impossible to divorce the choice of starting point from the application of aggravating and mitigating factors. This is expressly recognised by paragraph 8 of Schedule 21. Where aggravating factors have led the judge to adopt the higher of two potential starting points, or mitigating facts have led him to adopt the lower, he must be careful not to apply those factors a second time when making to that starting point any adjustment that may be appropriate to reflect the other material facts.

The starting points give the judge guidance as to the range within which the appropriate sentence is likely to fall having regard to the more salient features of the offence, but even then, as paragraph 9 recognises, “detailed consideration of aggravating or mitigating factors may result in a minimum term of any length (whatever the starting point), [emphasis ours] or in the making of a whole life order”. The starting points must not be used mechanistically so as to produce, in effect, three different categories of murder. Full regard must be had to the features of the individual case so that the sentence truly reflects the seriousness of the particular offence.

We emphasise seriousness because that is the focus of section 269 and Schedule 21. Murder is so serious an offence that it carries a life sentence. As this court pointed out in Sullivan section 142 of the 2003 Act does not apply to murder but section 143 is of relevance. In the context of culpability, the mental state of the offender is of obvious importance. All but one of the mitigating factors in paragraph 11 of Schedule 21 refer to this. A killing for which there is no rational explanation may reflect a mental disorder or disability in the offender. Such murders are sometimes more horrifying than killings that are motivated. It is important to bear in mind that in the case of such a murder it is the task of the parole board to ensure that the offender is not released after serving the minimum term unless this presents no danger to the public. Protection of the public is not a relevant factor in fixing the minimum term.

The scheme of Schedule 21 is that the judge first determines the starting point and then considers whether it is appropriate to adjust the sentence upwards or downwards to take account of aggravating or mitigating factors. This approach is manifestly not possible in respect of a whole life order. A whole life order should be imposed where the seriousness of the offending is so exceptionally high that just punishment requires the offender to be kept in prison for the rest of his or her life. Often, perhaps usually, where such an order is called for the case will not be on the borderline. The facts of the case, considered as a whole, will leave the judge in no doubt that the offender must be kept in prison for the rest of his or her life. Indeed if the judge is in doubt this may well be an indication that a finite minimum term which leaves open the possibility that the offender may be released for the final years of his or her life is the appropriate disposal. To be imprisoned for a finite period of thirty years or more is a very severe penalty. If the case includes one or more of the factors set out in paragraph 4 (2) it is likely to be a case that calls for a whole life order, but the judge must consider all the material facts before concluding that a very lengthy finite term will not be a sufficiently severe penalty.

Paragraph 12 of Schedule 21 provides:

“Nothing in this Schedule restricts the application of-

…(c) section 144 (guilty plea)”

Section 144 provides:

“144.

Reduction in sentences for guilty pleas

(1)

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 must take into account-

(a)

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

(b)

the circumstances in which this indication was given.”

Where the judge decides that it is appropriate to fix a minimum term, an appropriate credit for the plea of guilty should be deducted from the minimum term which the judge would have imposed had there been no plea of guilty. The Sentencing Guidelines Council has issued Guidelines as to the approach to be adopted to giving credit for a guilty plea. That guidance deals specifically with pleas of guilty to murder. In R v Last and other appeals [2005] EWCA Crim 106 this court set out the Guidelines and made some general comments in relation to their application. In Peters this court provided further guidance in relation to pleas of guilty. We see no need to add to these, other than to address the issue that has been raised in the appeal in Hobson.

In Hobson the defendant had pleaded guilty to the four murders with which he was charged. The judge said that he took the plea of guilty into account but that “it cannot affect the sentence that I pass”. He gave no explanation for that statement. In particular he did not comment that the Guidelines state expressly that:

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

We shall deal with the facts of Hobson in due course. Here we propose to address the arguments of principle that have been advanced by Mr Jeremy Richardson QC in support of Mr Hobson’s application.

Mr Richardson submits that the guidance that we have just quoted cannot preclude the court from its statutory duty to have regard to a guilty plea. It must have regard to the guilty plea before it decides whether or not to order a whole life term. Having done so it is open to the court to decide that it is nonetheless appropriate to order a whole life term, but must then explain why the guilty plea has not affected the sentence.

We agree with Mr Richardson that the court should consider the fact that the defendant has pleaded guilty to murder when deciding whether it is appropriate to order a whole life term. This is true of every mitigating factor. But, as we have already observed, a case which calls for the imposition of a whole life term is unlikely to be a borderline case. Where it is not, there may be no need for a judge to spell out expressly why, although he has had regard to the fact that the defendant pleaded guilty, this has not affected the sentence.

We now turn to consider the individual cases.

On 19 April 2005 at the Central Criminal Court this Appellant was convicted of murder and was sentenced on 10 June 2005 to custody for life with a minimum term of 27 years (less 334 days already spent on remand). He has the leave of the Single Judge to appeal against sentence.

On 26 April 2004 the Appellant was 19 years 2 months old. He knew the deceased who lived about half a mile from him in the Worlds End Estate, Chelsea. Both were known to the police and were suspected of being involved in street level drug dealing and robbery.

The deceased Daniel Blackstock, aged 21, together with his brother and a friend met the Appellant and his 15 year old brother on the Kings Road. Words were exchanged culminating in a fight between the Appellant and the deceased. In the course of the fight the deceased was heard to say “Where’s your gun now you pussy?” The Appellant took some form of home-made firearm from his clothing, pointed it at the deceased and fired a single shot. Initially the shot appeared to have little effect. The deceased remarked “the pussy shot me with an airgun. What is he thinking? I’m going to fuck him up”. The Appellant said, “Do you want some more?” but he and his brother then fled. The deceased then dropped to the ground. The bullet had in fact pierced his heart, inflicting a fatal wound.

The next day the Appellant was arrested by police and while being taken to the police station said “Fuck it. You guys would have not liked him anyway. I admit it, I put my hands up to it”. He gave a no comment interview and at trial contended that the death was accidental, that the gun had been with the deceased, that he disarmed him and it then went off accidentally. The jury plainly rejected this account.

The Appellant had six previous convictions for seventeen offences, mainly the possession of class B drugs and offences in connection with vehicles. He had one conviction for possessing an offensive weapon for which he had received a sentence of 28 days in a Young Offenders Institution.

The Pre-Sentence Report confirmed the bad blood that existed between the Appellant and his brother on the one hand and the Blackstocks on the other, the Appellant claiming that he had been subjected to threats of violence and to robberies at their hands. He expressed remorse and sorrow for what had happened while denying responsibility for the death of the deceased. He came from a supportive family background but had left school without any qualifications and had never secured anything other than short term and casual jobs. He was a professional seller of cannabis on the streets. He was categorised as presenting a medium level risk of harm to “known adults”, but a low risk to the general public.

In sentencing the Appellant the Judge accepted that this was not a pre-meditated killing, but called it “an explosion of anger which led to such dreadful consequences”. Despite submissions that a starting point of 15 years for Schedule 21 purposes should have been adopted he concluded “The facts of this case lead me to believe that your case falls into the category of a starting point, sadly, of 30 years” giving as the reason the use of the firearm. He found no particular aggravating features. He regarded the most significant mitigating factor as the Appellant’s age, just 19 at the time of the offence. He ordered the minimum term to be served as one of 27 years from which fell to be deducted the time spent on remand.

On his behalf Mr Coustenay Griffiths QC submitted that this is a manifestly excessive period. Heavy reliance is placed upon the fact that had the Appellant been one year and two months younger at the time of the offence the appropriate starting point, whatever the circumstances surrounding the murder, would have been one of 12 years. As he was between 18 and 21 Schedule 21 (6) indicates a minimum starting point of 15 years in a case where the seriousness of the offence is not adjudged to be “particularly high” so that paragraph 5(1) does not apply. It is argued therefore that the “accident of time” combined with an over rigid application of Schedule 21 has led in his case to a sentence which is manifestly excessive. He will be in his late 40’s before his release from custody can even be considered

Before us his counsel stressed the dicta in Peters relating to the age of the offender; the fact that of the examples given at Schedule 21 paragraph 5 (2) only one, the use of a firearm, applied to this case; that as to mitigation there was no second shot when the deceased initially appeared to have survived the first, therefore the court could safely infer absence of an intent to kill; there was no premeditation; and there was evidence of non-legal provocation. But the strongest plea was based on the age of the Appellant, and the impact of a minimum term of this length on a young man who will find it difficult to envisage a life after release, as Mr Griffiths QC put it.

We reject the submission that the judge erred in adopting a starting point of 30 years for the minimum term. Schedule 21, paragraph 5 (2)(b) provides that “a murder involving the use of a firearm” will normally have a starting point of 30 years. We have no doubt that the reason why the seriousness of such an offence is normally considered to be particularly high is that it results from the unlawful carriage of a loaded firearm and that the usual purpose of carrying such a firearm is to be able to kill or to cause really serious injury. It is possible to envisage circumstances where this is not the case, but they will be very rare. Where a firearm is carried for the purpose of being used as an offensive weapon, we find it hard to envisage what reason there could be for not following the guidance in Schedule 21 and adopting 30 years as a starting point.

Certainly there was no reason for not adopting the approach recommended by Schedule 21 as the norm on the facts of the present case. The background to this case comes close to the gang warfare that has unhappily become all too prevalent in some parts of this country. In these circumstances the Appellant had armed himself with a gun, and whether he had contemplated using this weapon offensively or defensively, is little to the point. Having started at 30 years, however, there was no further aggravating feature to be taken into account.

There are in this case two mitigating factors that called for a downward adjustment from the 30 year starting point. The first is that there is reason to conclude that the Appellant had not intended to use his gun to kill. It was a homemade weapon, it was not recovered and there is no evidence as to its calibre. Initially the deceased does not appear to have felt the impact, and the Appellant’s comment “do you want some more?”, coupled with the fact that he only fired one shot, suggests that he did not intend to kill.

The other mitigating factor is the age of the Appellant at the time of the offence. Had he been 14 months younger, the starting point would have been 12 years. The disparity between this and a starting point of 30 years demonstrates the importance that the law usually attaches to the youth of an offender. Where the offender is close to 18, justice demands that the fact that he has passed that age is not reflected in the sentence to an extent that is disproportionate.

When these two factors are considered together we have concluded that a significantly greater reduction fell to be made to the starting point than the 3 years applied by the judge. We have decided that the appropriate minimum term in this case was twenty years, and to that extent Mr Jones’ appeal is allowed.

On 4 August 2005 at the Central Criminal Court this Applicant, who is now 22 years old, was convicted of murder and sentenced to life imprisonment with a specified minimum term of 25 years, less time spent on remand. He applies for leave to appeal against this sentence, his application having been referred to the Court by the Registrar.

On 19 September 2004 the deceased Lamont Silcott and his cousin were in a Mini Cooper car being driven in East London, the deceased being the driver. CCTV footage showed a silver Renault following the Mini Cooper as it approached Brock Place, London E3. That road was a cul-de-sac and the deceased had to turn his Mini Cooper around to get out of it. As the two cars slowly passed each other the Applicant (then aged 20) got out of the drivers side of the Renault, approached the Mini Cooper and shot the deceased in the head through the open driver’s window. The deceased died instantly. His passenger got out of the Mini Cooper, the Applicant pointed the gun at him, and the passenger then made his getaway on foot. The Applicant got back into the Renault, drove it into the Mini Cooper pushing it into a stationary van and then reversed at speed out of Brock Place.

The police were called and the Applicant’s palm print was found on the driver’s window of the Mini Cooper. He was arrested and interviewed but declined to answer any questions.

The Applicant had two previous convictions for two offences. The second of these was on 21 December 2000 at the Central Criminal Court when he pleaded guilty to a charge of manslaughter and was sentenced to 6 years detention in a young offenders institution. The Applicant and another man had taken part in a robbery of a corner shop. The other man, to the Applicant’s knowledge, carried a knife. In the course of the robbery, which went badly wrong, he stabbed the shopkeeper who died. His conviction for manslaughter shows that the Applicant himself had no intention to kill the victim of the robbery. The Applicant’s licence period expired on 7 September 2004, 12 days before this murder.

In sentencing the Applicant the Judge pointed out that this was the second time in his young life that he had been responsible for the death of another human being, and that on the first such occasion the death had occurred during the course of a serious criminal offence. He described this second killing as “a cold blooded execution”. He noted that Parliament had laid down a 30 year starting point for this type of offence which he described as “the starting point that I am required to take”. He reduced it to 25 years on account of the Applicant’s age. He acknowledged that a 24 year plus sentence for a 21 year old man was a lengthy sentence and he was conscious of that, but he said that Parliament had deliberately laid down this starting point for cases of murder of this kind “because there are far too many of these shootings in London in this day and age”.

The principal grounds of appeal urged on the Applicant’s behalf are that the Judge failed to give sufficient weight to what his counsel accepted was the only mitigation available to him namely his age at the time of the offence; that the minimum term passed was more consistent with a contract killing rather than an execution as described by the Judge; and that he gave too much weight to the manslaughter conviction while having insufficient regard to its particular facts. In reality he is now serving the equivalent of a 50 year determinate sentence, which fails to give effect to the requirements of section 142 (1)(c) of the 2003 Act, which requires the court to have regard when sentencing to his reform and rehabilitation.

Mr Peter Rowlands’ submissions on behalf of the Applicant were short and to the point. He accepted that the judge had been justified in adopting a starting point of 30 years, in accordance with the guidance in Schedule 31. He submitted that one reason why offences involving the use of a firearm fell into the 30 year category was the prevalence of such offences and that this factor should not be treated as aggravating an offence that has led to a 30 year starting point. We agree.

Mr Rowlands advanced only one reason for attacking the minimum term of 25 years. He submitted that this gave insufficient reduction to reflect the Applicant’s youth. He was only 20 years and 10 months at the time of the murder. A 5 year reduction from the starting point was not enough. It paid insufficient regard to the aim of reforming and rehabilitating offenders – see section 142 of the 2003 Act.

This case contrasts with that of Jones in that there were aggravating features of the crime that went beyond the carrying and use of a loaded firearm. The Applicant had a previous conviction for manslaughter that arose out of being party to a robbery where he knew that his partner carried a knife. His period on licence in respect of this crime had ended only 12 days before the murder. And the murder itself was rightly described by the judge as a cold-blooded execution. The Applicant is nearly 2 years older than Jones, and it seems to us that, in contrast to Jones, he has developed into a mature professional criminal.

The minimum term of 25 years determined by the judge is a lengthy one, but one which the judge was entitled to conclude to be appropriate on the facts of this case. For these reasons this application is dismissed.

On 8 December 2004 these four Appellants were convicted at the Central Criminal Court and on 9 December 2004 were sentenced as follows:

On the same indictment on Count 1 Chandi and Khangura were convicted of manslaughter and each was sentenced to 15 years imprisonment. On Count 2 both were convicted of inflicting grievous bodily harm contrary to S.20 of the Offences Against the Person Act 1861 and each was sentenced to 4 years imprisonment concurrent with the sentence on Count 1. Count 3 Arson with intent to endanger life was left on the file. Both men had been charged with murder and causing grievous bodily harm with intent but the jury had convicted each of the lesser offences as alternative verdicts. Multani, Dosanjh and Chandi were given permission by the full court to appeal against sentence on 9 September 2005 after refusal by the single judge. Khangura’s application for leave to appeal his sentence was also refused by the Single Judge but was referred to the Full Court by the Registrar. At the start of the hearing we granted him an extension of time in which to renew his application and granted that application, making a representation order for leading and junior counsel.

Multani is now aged 30; Dosanjh 25; Chandi 25 and Khangura 23. The events giving rise to these convictions stem from a road accident on 26 January 2004. Harish Adiwal was a driver whose car was in collision with a car driven by the Appellant Dosanjh. The accident was Harish’s fault and he agreed to recompense Dosanjh for its consequences. He gave Dosanjh his particulars. Because he was concerned as to the adequacy of his insurance Harish Adiwal subsequently took out a policy of comprehensive insurance and then filed a false insurance claim in which he claimed that the accident took place on 28 January as opposed to its true date 2 days before. In due course he received £3,380 from the insurer. Dosanjh and Multani thereafter made efforts to contact Harish Adiwal to recover the money that Dosanjh considered he owed him. He formed the view that Adiwal was deliberately avoiding him.

On 2 March 2004 in the early evening the Appellants went to the home which Harish Adiwal shared with his parents. The father told them his son was out at work. The four Appellants left and tried to find Harish, without success. At 11.25 pm they went to a petrol station and filled one or more Evian bottles with petrol. They had been drinking.

Shortly after, they returned to the Adiwal home. The glass in the front door was smashed by a lump of concrete thrown through it and petrol was poured into the flat and set alight. The property comprised a first floor maisonette with the front door on the ground floor and a short flight of stairs leading up to the living accommodation. Mrs. Adiwal who was 55 years old was unable to get out of the flat and suffered first-degree burns to 30% of the surface of her body. She died as a result of these burns and the inhalation of fumes. Her death was the subject of Count 1.

Mr. Adiwal senior, who was 61, jumped from a first floor window and suffered serious injury. He broke his back as a result of the fall and suffered burns to his hands and foot. Those injuries were the subject of Count 2. Harish Adiwal was not present in the flat at the time the fire was set.

Khangura had 9 previous convictions for 19 offences. These included 3 convictions for destroying or damaging property, 1 for possessing an offensive weapon in a public place and 1 for using threatening, abusive or insulting words or behaviour with intent to cause fear. All of these had been dealt with by way of community penalties. The other three Appellants were men of previous good character.

In sentencing these Appellants the Judge explained his decision in the following way. He said it was abundantly clear that Dosanjh and Multani played a key role in planning, preparing and creating this fire to “teach them a lesson”, referring no doubt to all the occupants of the house including Harish Adiwal’s innocent parents. Addressing the starting point for the purposes of Schedule 21 he said he was in no doubt that this was an offence which was “particularly high” in its seriousness in that it had been caused by an explosion in the form of petrol, either thrown in a bottle or poured into the stairwell and lit with a lighted paper napkin. If not strictly an “explosive” in the normal sense, it had, said the Judge, an identical effect. He therefore took a starting point of 30 years accepting the guidance of the Schedule. He identified as aggravating features the significant degree of planning and the fact that they knew that the flat was occupied. On balance he did not find an intention to kill.

In terms of mitigation, he took into account their age, not in terms of its effect on their motivation for the attack, but having regard to the ages they would have reached by the time that they were eligible for release. He also took into account their previous good character. On that basis he reduced the minimum term to 24 years less one year for the time spent in custody, a total therefore of 23 years.

Turning to Chandi and Khangura, who had been convicted of manslaughter only, the Judge said that the jury’s verdict meant that they were satisfied only that these men realised that there was a risk of some physical harm being caused to the occupants. Both had played a key role as the Judge put it. Khangura had driven the others to and from the scene. Both encouraged the commission of the offence, but he accepted there was no full appreciation by them of the likelihood of fatal consequences. The judge ignored Khangura’s previous convictions as aggravating features. He made no allowance for Khangura’s lawyers’ attempts to negotiate a plea of guilty, saying there was nothing to prevent him from pleading guilty to Count 3 had he wished. In each case he sentenced as set out above, namely 15 years imprisonment for manslaughter and 4 years imprisonment concurrent for inflicting grievous bodily harm.

On behalf of Dosanjh and Multani Mr Coffey QC argued that the starting point of 30 years was too high and that the appropriate starting point would have been one of 15 years under paragraph 6 of Schedule 21. The use of petrol in the manner in which it was deployed in this case was not the use of an explosive, and the debate as to its definition in the Explosives Act 1875 Section 3 was neither a necessary nor a useful exercise. Counsel said that bad though it was the proper description of this offence was that it was murder by means of an arson attack, rather than an attack involving an explosive. Though it was accepted on behalf of the Appellants that the use of petrol in such circumstances was an aggravating feature it did not serve to place this offence in the same category as the very serious type of murders contemplated by paragraph 5 of the Schedule. Parliament could have included arson attacks in paragraph 5 (2), since they were far from being an uncommon cause of deaths, and it did not do so. Therefore it was argued that the appropriate starting point in their case ought to have been one of 15 years.

On behalf of Chandi our attention was drawn to Attorney General’s References Nos. 19, 20 and 21 of 2001 (Byrne and others) [2002] 1 Cr. App. R. (S) 33 at 136. The Court there was considering a sentence of 7 years imprisonment for manslaughter, the death of the victim having been caused by a severe beating administered to him in the course of a street robbery in which he sustained injuries from which he died later that same day. While stressing that manslaughter sentences vary greatly from one end of the scale to another, the Court said it inevitably looked at the context in which the death was caused and whether it was the result of particularly reprehensible conduct and further whether violence of any kind was contemplated or intended by the offender. The Court held that on the facts of the case before it the adult offenders following a trial should have received a sentence of 12 years imprisonment.

In R v Daly and England [1995] 16 Cr. App. R (S) 777 two men poured petrol over and set fire to the car of another man. Unknown to them the owner was asleep inside the car and he was as a result killed. Sentences of 7 years were upheld.

On facts closer to the present case in R v Wassim Malik [2003] 2 Cr. App. R (S) 113 the appellant had set fire to a terraced house by pouring petrol through the letter box in a revenge attack. The occupier of the house escaped to call the fire brigade but a tenant was overwhelmed by smoke fumes and died. The Appellant had offered to plead guilty to manslaughter but that offer had been rejected. The Court found that there was particular personal mitigation available to him. Having regard to what it called “unusual mitigating factors” the sentence of 15 years imprisonment was quashed and one of 12 years substituted for it. In the light of those authorities it was submitted that Chandi’s sentence was excessive and should be reduced.

As to Khangura, three main grounds of appeal were relied on.

The first was that well before trial he had offered to plead guilty to Count 3, (arson with intent), and had volunteered to give evidence for the prosecution against the co-accused. This offer was rejected. On the first day of the trial Khangura’s counsel “sounded out” the prosecution’s attitude should Dosanjh and Multani plead guilty to murder and Chandi and Khangura plead guilty to manslaughter (the very verdicts that the jury eventually returned). The prosecution rejected this proposal. It was, as we understand it, the case that this approach was made by Khangura without the express authority of Dosanjh and Multani.

Reliance was also placed on the relative youth of Khangura, who was the youngest of these four men.

The final point advanced on behalf of Khangura was that the manslaughter sentences passed on him and Chandi were influenced by what were termed the excessive sentences, so far as the minimum term was concerned, passed on Multani and Dosanjh, the effect of which had been to draw the manslaughter sentences up to a level which could properly be described as manifestly excessive.

We shall deal first with the appeals by Mr Dosanjh and Mr Multani. We agree with Mr Coffey’s submissions to this limited extent. Considering whether, on the facts of this case, the murder could be said to involve the use of an explosive was not a useful exercise. Nor are we persuaded that it was this exercise that led the judge to conclude that the starting point was 30 years. After concluding that the use of petrol in this case produced an identical effect to an explosion, he continued:

“Anyone who contemplates the use of a petrol bomb or the use of petrol in an attack on others must be aware, or made aware, of the level of seriousness of their actions. It is for this reason that this case comes within the category of murders described as ‘particularly high’”.

We agree with this statement. Pouring petrol into a person’s home and setting fire to it when it is, or may be, occupied is on any footing a horrifying crime. It is obviously liable to cause death or really serious injury. Where death results the jury are often not certain that the defendant intended to bring about such a dreadful consequence and convict of manslaughter rather than murder. In such circumstances, very lengthy prison sentences are the norm – we shall consider some when we deal with the appeals by Chandi and Khangura.

Setting fire to a person’s home with the intention of causing death or really serious personal injury is peculiarly horrifying. The judge approached sentencing on the basis that the jury had only found an intention to cause really serious injury rather than an intention to kill. We do not think that in a case such as this the difference is very material. Deliberately to cause really serious injury by fire is likely to involve agony for the victim and the possibility of permanent injury or disfigurement. Furthermore, such conduct carries with it the obvious risk of causing death. Although causing death by arson does not feature in the list in paragraph 5 (2) of Schedule 21 of examples of cases where the seriousness is likely to be particularly high, we think that the judge was right to conclude that murder as a result of using petrol to set fire to a victim’s home falls within that category. Were there any doubt we think that this fell to be resolved by the fact that there was a second victim who was seriously injured as a result of jumping out of an upstairs window to escape the fire. Accordingly the judge cannot be criticised for taking 30 years as a starting point.

The judge treated as aggravating features the fact that there was a significant degree of planning of the offence, as evidenced by the purchase of the petrol at a filling station, and the fact that these Appellants knew that the flat was occupied. It seems to us that each of these factors was implicit in this type of offence and sufficiently reflected in the starting point. They should not have been weighed further in the balance.

The judge deducted a little over 6 years from the starting point to reflect the ages of these appellants, the fact that they were of previous good character and the fact, as he assumed, that they did not intend to kill. Was this reduction less than it would otherwise have been because the judge had weighed against the mitigation the factors that he treated as aggravation? It is not clear to us that it was, but it may have been. In these circumstances, we have decided that the right course is to replace the minimum terms of 23 years, which made allowance for time served, with terms of 21 years. To that extent the two appeals are allowed.

We turn to the appeals of Chandi and Khangura. The judge directed the jury that if they were not sure that a Defendant intended to kill or cause really serious injury but was sure that the Defendant was party to setting fire to the Adiwal home with foresight that this involved some risk of harm, the appropriate verdict was not guilty of murder but guilty of manslaughter. Accordingly the judge rightly sentenced these Appellants on the basis that this was their state of mind. The culpability of using petrol to set fire to someone’s home with the knowledge of the obvious fact that this involves risk of harm to those within is manifestly high. When such conduct results in one of those in the house being killed by burns or suffocation the seriousness of the offence of manslaughter that is committed is very high indeed. In this case the gravity of the crime was augmented by the dreadful injuries sustained by Mr Adiwal.

Manslaughter in the circumstances of this case is, unhappily, by no means unprecedented. In Malik to which we were referred a sentence of 15 years was reduced to 12 years in circumstances where there was exceptional personal mitigation and a plea of guilty to manslaughter had been offered and refused. Other decisions provide a fairly consistent pattern of a 15 year sentence being imposed where manslaughter has been contested and 12 years where a plea to manslaughter has been offered of accepted – see Nedrick (1986) 8 Cr. App. R.(S.) 179; Palma (1986) 8 Cr. App. R.(S.) 148; Snarski (1994) 15 Cr. App. R. (S.) 19; Archer [1998] 2 Cr. App. R. (S.) 76; Nazar Hussain [2004] 2 Cr. App. R. (S.) 93.

In the present case we can see no reason for departing from this pattern. The only issue is whether Khangura should be given any credit for the negotiations in relation to a plea that we have described earlier. We have decided that he should not. At no stage did he make an unequivocal offer to plead guilty to manslaughter. There was no reason why he should not have done so. Had he taken that course, he would have received credit for it. As it is there is no valid mitigation to be advanced on his behalf.

For these reasons the appeals of Chandi and Khangura are dismissed.

On 18 March 2005 in the Crown Court at Leeds this Applicant pleaded guilty to four counts of murder. On 27 May 2005 he was sentenced to life imprisonment on each count and the judge imposed a ‘whole life’ order pursuant to section 269(4) of the 2003 Act. He applies for permission to appeal against this sentence. His application has been referred to this court by the Registrar.

The Applicant is now aged 36. His first victim was the girlfriend with whom he lived, Claire Sanderson. Some months before he murdered her he told a colleague that he had picked the wrong sister and was “going to have Diane”. Diane was Claire’s twin sister. He decided to murder Claire. He did so on the evening of 10 July 2004, striking her head repeatedly with a hammer and then placing a plastic bag over it. He wrapped her body in bin liners and for the next few days went about his life as normal.

The Applicant then laid plans to lure Diane to his home, to immobilise her and abuse her sexually and then murder her. These plans he implemented. On 17 July he sent a message to Diane that Claire was sick and wanted to see her. When she arrived he struck her on the head, tied tape round her face, cut off her clothing, hog tied her and shaved off her pubic hair. He bit off her left nipple and forced a blunt object into her rectum with such force that it penetrated her vagina. Only then did he kill her by strangulation or asphyxiation by placing a plastic bag over her face. He then went to a public house where he met and drank with Diane’s boy friend.

On the 18 July the Applicant took a kitchen knife and went on the run. He attempted to break into an empty house in Huntingdon. Later he went to the village of Strensall. He entered a house by an unlocked back door and went upstairs to look for valuables. When he came down he encountered the occupiers, Mr and Mrs Britton, an infirm couple in their early eighties. He attacked Mr Britton with a walking stick, causing him severe head injuries. When he collapsed on the floor, the Applicant stabbed him in the back with the kitchen knife, piercing his heart and lungs and killing him. He pulled out the knife and wiped it on the back of a chair.

He then turned his attention to Mrs Britton. He hit her on the head with the walking stick, fracturing her skull and then stabbed her in the back with great force, piercing her left kidney, diaphragm, stomach and liver. The knife blade broke off in her body, so the Applicant helped himself to another knife and left the premises.

A week later he was apprehended. He admitted that he was a murderer. Thereafter his legal representatives made it plain that he was likely to accept that he was responsible for the deaths of the four victims and that the only defence that might be run was diminished responsibility. Consultant psychiatrists advised, however, that there was no basis for this defence. He suffered from depressive illness and a personality disorder, but it could not be said that his mental responsibility for his actions was substantially impaired. He pleaded guilty to all four murders.

The judge, after summarising these facts, commented that he had killed four wholly innocent people and devastated the lives of those who loved them. The damage that he had done was incalculable and the enormity of what he had done was beyond words.

Mr Richardson QC for this Applicant made succinct and sensible submissions. The judge had made a whole life order despite the fact that the Applicant had made it plain from the earliest opportunity that he would be pleading guilty. The judge had given no reason for giving no effect to the guilty plea. He should have given credit for it by imposing a term in excess of 30 years, but one that fell short of whole life.

There is a simple answer to this submission. Mr Richardson accepted that a murder might be so heinous that a whole life term would be appropriate despite a guilty plea. He even conceded that this might be such a case. That concession was realistic. The facts of these four murders are so horrific that a whole life order was inevitable, guilty plea or no. No one knowing the facts of the case could be in any doubt as to why the judge had given no effect to the guilty plea. The application for permission to appeal is refused.