Wynne, R. v

MRS JUSTICE DOBBS: On 3rd November 2005 at the Liverpool Crown Court, this 28 year old applicant pleaded guilty to arson. On 24th January 2006 he pleaded guilty to murder. He was sentenced in relation to the murder to life imprisonment with a minimum term of 21 years less 181 days spent on remand. He renews his application for leave to appeal against sentence in respect of this minimum term.

The facts are these. The victim in the case was a heroin addict who worked as a prostitute to finance her habit. She left her home at 2.00 am on the morning of 13th March 2004. She did not return. Two days later the matter was reported to the police and she was recorded as a missing person.

Some three months later, on 9th July 2005, a Mosque in Borough Road, Birkenhead, was damaged by fire as a result of an arson attack. Enquiries led to the arrest of the applicant. A search of his home revealed some handwritten notes with a reference to the death of a "junkie whore".

He was interviewed by those dealing with the disappearance of the victim. He told officers that he had killed her. He said he had been out socialising in Birkenhead, drinking and taking drugs. He had intended to pick up a prostitute. He met the victim in the early hours of 13th March. She agreed to accompany him to his home address where they both had drinks and smoked heroin. He said he had fallen asleep and when he awoke, he was on the floor in the bathroom covered in blood. She was in the bath partly clothed and her head and arms had been severed from her body. Alongside her body was a meat cleaver. He transferred the body to the loft after removing the remaining clothing which he placed in a disused metal water tank. He then cleaned up, placed the clothes with his own into bin bags which he put into his rear yard.

In the backyard, he constructed a wooden mould, into which he placed the meat cleaver and covered it with concrete. After a week or two, the smell from the loft became unbearable, so he placed the arms and head into a rucksack which be emptied in undergrowth at Royden Park in Greasby. He wrapped the remainder of the body and placed it in his car and took it to a public refuse disposal in Birkenhead. He was accompanied by the police to Royden Park but there was no apparent trace of the body parts. He was bailed whilst enquiries were carried out. The bin bags were recovered from the backyard. They contained bloodstained male and female clothing and the clothing matched that worn by Chantel. A concrete block was recovered, and when broken open, was found to contain a heavy cleaver, a blade of a handsaw and a kitchen knife.

The applicant was re-arrested and interviewed. He maintained that he could not remember the specifics of the attack on Chantel, but he did recall that there was also a handsaw in the bath with the body.

There was a written basis of plea before the court which was not challenged by the Crown. In it he said the following: that he had gone drinking on the evening of 12th March with a friend and had consumed a large quantity of alcohol and amounts of cannabis and cocaine. He met Chantel Taylor on the way home and she agreed to go back home in order to have consensual sex. They both took drugs at his home. She already had some of her own, which she used. They both smoked from a stash which he had in his house. The remainder of the stash of heroin was kept in a small polythene bag which he put on the side in the bedroom whilst sexual activity took place. As Chantel Taylor was about to leave, he noticed that the bag of heroin was missing. He suspected that she had taken it. He confronted her about it, but she denied it. After quickly looking around for the bag, he challenged her again but she continued to deny it. He said he could see part of the polythene bag protruding from inside the top of her clothing. He pushed her backwards in the bedroom, trying to prevent her from leaving, but when she persisted, he picked up the meat cleaver that he kept in the bedroom and struck her one blow to the side of the neck. He kept the meat cleaver in the bedroom for protection in case of burglary. The blow he struck to the deceased was not premeditated and the whole situation erupted suddenly and unexpectedly. After the blow, the deceased fell to the floor at the foot of the bed. The injury to her neck was bleeding heavily and despite attempts to stem the flow using a Polo shirt, she quickly died.

He left the body in the bedroom from some time before deciding later on in the early hours of that morning to move it into the loft. He cut off the deceased's arm in order to allow him to manoeuvre the body into the loft. He hid the body initially out of sheer panic and later disposed of her remains at the places he indicated to the police in interview.

The applicant he accepted the dismemberment and destruction of the deceased was an aggravating feature and would be a lasting cause of significant stress to the family. He did not intend to harm anyone that night. He had a good night out and there was no unpleasantness between him and Chantel Taylor until immediately before he struck the fatal blow. He accepted that he had intended to cause serious bodily harm but did not intend to kill her.

He had a number of previous convictions but mainly for driving and one for burglary.

In sentencing, the judge noted that at an early state of investigations, to his credit, he had revealed the circumstances that made the conclusion virtually inevitable that he had committed the murder.

The judge took a starting point of 15 years. The aggravating features, he found to be firstly, the macabre dismemberment, secondly, the concealment of the victim and added to that was the use of a vicious weapon upon her. Such a weapon, whilst not a firearm, was substantially more dangerous than a normal kitchen implement seized by offenders in extremis and used to inflict unlawful death.

It was accepted in mitigation that there was no premeditation and that his intention may not have been to kill. It had been submitted that there was some degree of provocation. However, the judge took the view that the potential loss of heroin could not be regarded by right- thinking members of society as provocation reducing to any degree the seriousness of the offence of murder.

His personal mitigation was borne in mind, in particular the evidence suggesting that apart from his propensity to commit serious offences when in drink or drugs, he lived a sadly unremarkable life. He had served his country in the armed forces to some effect, but was dismissed because of his use of drugs. The judge took a term of 24 years and having taken the aggravating and mitigating factors into consideration then gave a further discount of 3 years for the plea of guilty, making the minimum term 21 years less the period spent on remand.

The grounds of appeal are that the minimum term was manifestly excessive. First of all, on the basis that the judge wrongly took into account the use of the meat cleaver as an aggravating feature and secondly that he failed to give sufficient credit to the mitigating features, namely no intention to kill, no premeditation, the plea of guilty and that his record disclosed no substantial history of violence.

In support of the contention the judge should not have considered the use of a meat cleaver to be an aggravating factor, counsel submits that because this is a case in which the applicant admitted that he intended to cause really serious harm and not to kill, it is the admission of the use of such a weapon which turns this case into one of murder rather than one of manslaughter. The Crown, it is said, were content to accept that the applicant only intended serious bodily harm and thus it should not be an aggravating factor.

As was made clear in the case of R v Peters and Ors [2005] EWCA Crim 605, the exercise of determining the minimum term to be served is not a mathematical calculation. The Court has to look at the specified period in the light of all the factors in the case and decide if the end result fell within the appropriate range of sentences and margin of judgment and discretion given to the sentencing judge. Moreover as the case makes clear, paragraph 11A of schedule 21 underlines that an intention to cause grievous bodily harm, as opposed to intention to kill may provide relevant mitigation, but not necessarily and not always. For example, there are cases where death even unintended is a possible or likely consequence of the offender's premeditated conduct.

Whilst it was accepted that there was no intent to kill and this was taken into account as a mitigating factor one has to look at the facts. Even on the applicant's own basis of plea, he had a meat cleaver in his bedroom, in case of burglaries. He obviously contemplated using it should anyone come to his property to steal.

This was not a spontaneous picking up of something that happened to come to hand. He was prepared for trouble and, judging by the weapon, prepared to cause serious injury with it. We do not think in the circumstances that the judge can be criticised in finding that the weapon has added some aggravation, particularly as he took into account as mitigation the fact of no intent to kill. In circumstances such as this, it seems to us the mitigating features of intent to cause grievous bodily harm loses some of its force and so matters balance out.

The judge, having taken into account the observations in the case of Peters, made proper discount for the very late plea. However, standing back, and nasty though this case was, in our view, in the light of both the aggravating and the mitigating features this period was too high. We therefore grant the application and propose to quash the minimum period of 21 years less time of 181 days spent on remand and substitute a period of 18 years less 181 days spent on remand. To that extent this appeal against sentence is allowed.