Sandhu, R v

MR JUSTICE CRANSTON: This renewed application raises the principle to be applied in the case of sentencing attempted murder. Earlier this year the applicant was convicted by a jury of that offence and was sentenced by Her Honour Judge Smith to 18 years' imprisonment. The application contends that that sentence is manifestly excessive.

The facts in brief are these. The applicant and the victim had been married for 14 years and had two children together. In 2005 the relationship began to deteriorate due to the applicant becoming an alcoholic. He became increasingly abusive and aggressive. In May of 2007 the victim left the matrimonial home with their children.

A few months later she returned to the house with the children so that the applicant could see them and she could collect some belongings. She was in a small box room when the applicant suddenly ran in brandishing a knife from the kitchen and made stabbing motions towards her. She grabbed the knife causing bad cuts to her hands. She managed initially to escape but he then followed her into the bathroom and continued to slash the knife around her head, neck and chest area. He also tried to strangle her. Eventually she managed to escape. The applicant did not pursue her but left the property. He later returned and was arrested.

The victim suffered lacerations to her head, neck and hands, including a 7cm cut to her neck which went through all the layers of the skin but did not penetrate the muscle. She required an operation to both hands to repair the nerves and stitch the wounds. She has permanent scarring and there has been a significant emotional and psychological impact upon her.

As we have said the applicant was convicted after trial. Her Honour Judge Smith said that it was agreed that had the victim died from the serious injury to her neck the minimum term of imprisonment would be have been 15 years. Having regard to the applicant's mitigation and in particular the fact that the attack was not premeditated, other than from the point when he went upstairs from the kitchen, the learned judge concluded that the proper sentence was one of 18 years.

The grounds of appeal are that that sentence is manifestly excessive in that the learned judge failed to make sufficient allowance for the background to the offence and the personal mitigation of the applicant. It is also said that in sentencing for attempted murder she wrongly applied the principle of having regard to the minimum term to be served in the event the victim having died and there being a conviction for murder.

In general our approach to the first two grounds is amply summed up by the single judge who said, in refusing leave, that it was an horrific attack, clearly the applicant intended to kill her and indeed he injured her seriously and in numerous places. The single judge also noted that the attack took place in front of the children and would have a lasting impact on them. That is a point we underline given that the Sentencing Guidelines Council definitive guideline on over-arching principles for domestic violence identifies the presence of children and the impact on them as an aggravating factor. In this case we note that the seven year old daughter witnessed the attack, bravely tried to intervene and then obtained help from neighbours. The three-year-old son was also in the house at the time.

The point of principle demands closer attention. Before us today Mr Taylor in his succinct and cogent argument submitted that there is no support in the authorities for any proposition that a sentence for attempted murder has to be doubled to make allowance for the fact that only half will be served, whereas for murder under schedule 21 of the Criminal Justice Act 2003 the minimum term must be served in full. He cites in particular R v Clark [2007] EWCA Crim. 2195, [2008] 1 Cr.App.R (S) 105. He also refers to earlier decisions such as R v Davis [2001] Cr.App.R (S) 53 and the more recent decision of R v Ipek [2005] EWCA Crim. 1358, [2006] 1 Cr.App.R (S) 36. In particular he submits that Ipek involved injuries more substantial than in the present case, but nonetheless this court reduced an 18 year sentence imposed by the trial judge to one of 15 years.

The starting point for consideration of the matter is the leading case of R v Ford [2005] EWCA Crim. 1358, [2006] 1 Cr.App.R (S) 36. There this court, presided over by the then Vice President, Rose LJ, established clearly that as regards a sentence for attempted murder there must be a proportionate relationship between the time served and the minimum term which would have been served if the attempt had been successful. The court went on to observe that the time to be served for the full offence still needed to be substantially higher than for an attempt to mark the fact that a life had been lost. Gibbs J also observed that while attempted murder always requires an intention to kill, the range of culpability for the offence is nonetheless wide. His Lordship noted that there is a proportion of cases where a defendant is convicted of attempted murder in which, had the victim died, the defendant would have been convicted of manslaughter, rather than murder, because of the defences of provocation and diminished responsibility. Thus in such cases the basis for comparison in terms of proportionality when sentencing for attempted murder would be the sentence appropriate not for murder but manslaughter. The court there went on to substitute a sentence so that the appellant would serve up to 16 years for attempted murder, about half the 30 years he would have served had the attempt been successful.

Mr Taylor in particular points out that in that case the court also said that it followed that only in the corresponding graver cases of attempted murder that an increase of sentencing was likely to be required. For attempted murders lacking in the more serious aggravating factors the court anticipated that no general increase in sentencing levels was required because of the increase in minimum terms for murders consequent on the Criminal Justice Act 2003.

The principle of maintaining a proportionate relationship between the sentence to be served for attempted murder and that for murder if the attempt had been successful is evident in R v Clark, supra. There the court said it would have anticipated a minimum term for murder, having regard to mitigating factors, of about 10 years, subject to the discount for early plea. On that basis it needed to reach a starting point for attempted murder which reflected the fact that the appellant's severely injured victim made a full recovery and the victim's genuine desire to re-establish her relationship with the appellant. It considered the appropriate starting point for attempted murder to be 12 years, with a one-third discount for a guilty plea, resulting in a sentence of eight years' imprisonment.

In the result we approach the task today on the basis of the principle outlined - that there has to be a proportionate relationship between the time a defendant will serve in custody for attempted murder and what he would have served had the attempt been successful. The matter cannot be approached by means of a mathematical formula. In this case Her Honour Judge Smith said that had the victim died from the serious injury to her neck the minimum term which would have been spent in custody would have been one of 15 years. As we have said, she imposed a determinate term of 18 years, half of which would be served in prison as a result of section 244 of the 2003 Act, less the days spent in custody on remand.

In this case the victim recovered but there is permanent scarring and she is emotionally affected. It was a terrible attack. There was also, as we have mentioned earlier, the adverse effect on the children. On the other hand there were mitigating factors including the fact that this was not a premeditated attack. In the light of all of this, we believe that the principle of proportionality can be maintained by giving leave and allowing the appeal to the extent of substituting a sentence of 15 years for the 18 years the learned judge imposed.

LORD JUSTICE MOSES: The application for leave will be allowed and we shall allow the appeal to the extent determined by quashing the sentence of 18 years and substituting one of 15 years. Since you have instructions there is no need to say any more apart from a representation order. Do you need a representation order?

MR TAYLOR: I think I do.

LORD JUSTICE MOSES: You may have one. It was a very good submission.