Turner, R v

LORD JUSTICE DAVIS:

It is against that sentence which the appellant now appeals and he does so by leave of the single judge.

The background facts can be relatively shortly stated for present purposes.

On 10 April 2018, at around 2.40 in the morning, the appellant was driving his car on the A329 in Bracknell. The deceased, a man called Mr Miroslaw Januszkiewicz, was walking alone. It would appear that he may have been in a state of intoxication. The appellant and the deceased were entirely unknown to each other.

CCTV, which was played to the jury, showed that the appellant slowed his car alongside the deceased and then stopped. The appellant got out from his car and there was a brief conversation between the two. The appellant is then seen to return to his car and the deceased started walking away. The deceased then appeared to turn back and walked again towards the car. The appellant then approached him and attacked the deceased. He did so by punching him to the face causing him to fall to the floor. The appellant then stamped in the area of the deceased's face and head approximately, as found by the judge, 10 times, as can be seen from the CCTV. The movement of the appellant's upper body on the recording was consistent with kicking and stamping, albeit his lower body and the deceased lying on the ground were obscured by street obstacles. The overall attack on the deceased whilst he lay on the ground lasted in the region of up to 30 seconds. The appellant then drove away from the scene, leaving the deceased lying prone on the ground. He was found lying at the side of the road when he was seen by a passing delivery driver shortly after 3.30 the same morning. The deceased died the next day in hospital. The cause of death was blunt force head trauma most likely caused by kicking and stamping.

CCTV and automated number plate recognition enquiries identified the car which had stopped by the deceased as registered to the appellant.

He was arrested in the early hours of 11 April 2018, initially for attempted murder. Subsequently, upon the certified death of the deceased, he was further arrested for murder. In due course he was charged with murder on 13 April 2018. Although at his very first interview the appellant had denied responsibility for the killing, by the time of

We will have to come on to the reports in due course. Suffice it to say that by the time of the PTPH later in 2018 the appellant, as is agreed, had given a firm indication that he would be pleading to manslaughter on the basis of diminished responsibility and the court had been so informed.

For various reasons it had not proved practicable for the appellant formally to be arraigned until the first day of the trial, which was in February 2019. On that occasion he did indeed duly plead guilty to manslaughter and the jury were so informed. As we have said, the sole issue at trial was the issue of diminished responsibility. The only oral evidence, as we gather, which was adduced at trial was evidence from some of the psychiatrists who had submitted reports in this regard.

The appellant does have an antecedent history. There are minor drugs offences on his record and also incidents of using threatening and abusive behaviour in 2017 and 2018. He had not previously been subject to a custodial sentence, although this particular act of homicide occurred whilst he was subject to a community order imposed on 10 November 2017.

It is quite plain that mental health issues of one kind or another had formed part of the background of the appellant. In the weeks and months leading up to the killing he had come to the attention of the police and Mental Health Services on numerous occasions. There were several incidents where the police were called to deal with the appellant's troubling behaviour; and indeed Mental Health Services first become involved with the appellant earlier in 2016, when he was detained under the provisions of the Mental Health Act 1983 and diagnosed with a suspected drug induced psychosis. In this regard it should be noted that the appellant has been a heavy user of cannabis since his teenage years. There was also evidence that he did not fully confront his problems and frequently (as on the night in question) would not take his prescribed medication.

Of the many psychiatric reports that were obtained, particular reliance was to be placed by the defence on the reports of Dr Latham, Dr Davies and Dr Attard. It is not necessary to refer to the details of such reports. In the initial report of Dr Latham, Dr Latham was to say this by way of conclusion:

The report of Dr Davies was, although differently expressed to like effect. He was to describe the appellant as indicating multiple psychotic symptoms. At paragraph 259 Dr Davies said:

The Crown instructed Dr Phillip Joseph, a consultant psychiatrist. He took a different view of the matter. In his first report he stated firmly:

In his final report, dated 20 January 2019, that is to say only shortly before trial, Dr Joseph said this:

Various other reports were also before the jury. It was confirmed that the appellant was fit to stand trial. There was also a report indicating that it had not been necessary recently

At all events that was the nature of the evidence before the jury and diminished responsibility was the issue that the jury had to consider. As we have said, the jury convicted of murder.

When he came to sentence, the judge dealt with the matter fully and carefully. He had noted the previous indication of plea of guilty to manslaughter by reason of diminished responsibility, which had not been accepted by the prosecution. The judge then referred to the facts and referred, understandably, to the impact of the death of the deceased on his close family. The judge described the attack as a wholly random attack without any provocation whatsoever from the deceased.

The judge then reviewed the psychiatric evidence. Having done so, he stated his own conclusion that the appellant was not suffering from either schizophrenia or from a schizoaffective disorder at the time of the murder:

The judge then dealt with the aggravating factors relating to the attack. He also addressed the mitigation, which essentially was in the form of the mental health disorder, and assessed whether that lowered the degree of culpability. As to that, the judge said this:

Mr Hughes QC, on behalf of the appellant, advances three grounds. First, he submits that insufficient weight had been given to the appellant's mental health issues when considering his culpability. He submits that a deduction of just one year from the stated figure of 18 years was insufficient to reflect the mental health issues of the appellant. Second, he complains that the further reduction of one year was entirely insufficient to reflect the appellant's earlier admissions of killing the deceased and furthermore, his early acceptance of guilt of manslaughter by reason of diminished responsibility. Third, he criticises the judge's assessment of the aggravating factors whereby the judge increased the starting point from 15 years to 18 years before factoring in such mitigation as was available.

We can take that last point shortly. This was, as the judge said, gratuitous and unprovoked violence, at night, on an innocent victim, walking home alone (probably under the influence of drink) and who was an entire stranger to the appellant. The assault was initiated by a punch followed by a number of stamps and kicks with a shod foot to the victim whilst he lay prone on the ground. As the judge said, this was a "sustained and ferocious attack". Further, the appellant does have some antecedent history and this offending occurred during the currency of a community order. Moreover, the appellant then had callously left the deceased lying on the ground when he drove away. In all the circumstances, we consider that the judge was entitled to assess the aggravating factors as he did in moving up to a figure of 18 years' imprisonment before mitigation and credit were taken into account.

However, the other two grounds perhaps have rather more substance. As to the appellant's mental state and hence his culpability, we understand the points which Mr Hughes has sought to make. But ultimately as we see it, this was a matter for the judge and his appraisal of the evidence. He had the conduct of the trial. He had seen and heard a number of the experts give their evidence. His sentencing remarks made clear that he had preferred evidence of Dr Joseph. That was a conclusion properly open to the judge. Moreover, all that happened had to be put in the context of the appellant knowing, by reason of his past history, of the need for him to take medication and when the evidence was clear that, notwithstanding his family's attempts to persuade him to take it, he had refused or failed to do so. The previous incidents in which he had been involved in effect had represented a warning shot for him but he paid no sufficient attention. Moreover, his sustained consumption of cannabis clearly also had operated to exacerbate the overall situation. We think, therefore, that the judge was entitled to assess matters as he did in considering the level of culpability.

That then leaves the issue of credit for the early admission that the appellant had indeed killed the deceased. He may not have done it at the very earliest occasion, in that he disputed liability at the first interview; but the admission followed within 24 hours. Thereafter, as the judge had explained, he has never sought to mitigate away from the facts. As we have said, he was formally arraigned only on the first day of trial; but he had always indicated at what was accepted to be at the first practical moment, an intention to plead guilty to manslaughter: as indeed he duly did.

In such circumstances, Mr Hughes says that a discount of just one year was simply insufficient and was wrong in principle. In percentage terms it connoted a discount of less than 10%. Even allowing for the fact that the maximum discount available was one-sixth of the minimum term, this still was much too little he submitted. In this regard, he also referred us to the Definitive Guideline on Reduction on Sentence for a Guilty Plea issued by the Sentencing Council. At paragraph F1 this is said:

Mr Hughes submitted that in the circumstances it was entirely reasonable for the appellant to adopt the stance that he had in the light of the psychiatric evidence available to him.

We were further referred, as had been the judge, to the case of Markham (supra). That was a rather unusual case on its facts, not least that it concerned two relatively young children involved in the most horrific of murders of two people. One had pleaded guilty

At paragraph 71, the President of the Queen's Bench Division, giving the judgment of the court, said:

In the present case, of course, the appellant is an adult. He was, in that sense, able to make an informed decision. Nevertheless Mr Hughes presses the point that he had at an early stage accepted the facts of the killing and then he had made clear that he was not disputing that he was at the least guilty of manslaughter. Further, that was based on a body of opinion from a number of expert psychiatrists who had all considered that a defence of diminished responsibility was available. Yet further it was pointed out that the reports of the various psychiatrists continued to come in until very shortly before the date of trial; and then he did duly plead guilty to manslaughter on the first day of trial when first arraigned.

The background here raises, in our view, a position of some difficulty. On the face of it, a discount of just one year, when there had been such admissions by the appellant and when he had never sought to dispute the underlying facts, seems very limited. It is right, on the other hand, to say that the judge cannot be said to have had no regard to the point: because he expressly did have regard to the point and then selected a discount of one year to reflect the plea. Clearly, the appellant could not receive the maximum credit available: because that would equate with the position as if he had pleaded guilty to murder at the earliest possible stage. But it still remains the position that he had, from an early stage, accepted all the facts and had then advanced, entirely reasonably in the light of the expert reports available, a defence of diminished responsibility at trial.

We also have to say that some of the observations which the sentencing judge made with regard to credit for plea seemed to have no obvious bearing on that particular issue. For example, he referred again in this context to the severity of the attack; but that had already been factored into the assessment of the aggravating factors and could not properly come back into the picture when considering what the appropriate credit for plea was. Moreover, with all respect to the judge, we find somewhat cryptic his reference to sentencing "policy" not being available for a defendant to benefit from an early guilty plea to manslaughter, as articulated by him.

We think that in all the circumstances of this particular case this appellant was in principle entitled to greater credit than the judge accorded him. We do accept that there is of course flexibility in these situations, as the decision in Markham connotes. Overall, the entire background here does indicate that the discount should have been greater than one year and, in our view, it should have been two years. In such circumstances, we will reduce the overall sentence to one of 15 years' imprisonment by way of specified minimum term; and the time spent on remand in custody will continue to count towards sentence.