R v Peter Lindley

On 31 July 2024 in the Crown Court at Southwark the appellant was sentenced for attempted murder, having pleaded guilty to that offence at the first opportunity. He received an extended determinate sentence of 18 years, comprising a custodial term of 13 years and an extended licence period of five years. He now appeals against that sentence with the leave of the single judge.

The appellant and the victim, Marvie Orbiso lived in accommodation provided for key workers within the grounds of Charing Cross Hospital. They, together with their partners, shared a flat. The appellant and his partner had one room and Mr Orbiso and his partner occupied the other room. They shared a kitchen and bathroom. They lived alongside each other in that way from September 2023.

In late December 2023 Mr Orbiso had made a complaint about the appellant's behaviour to the Housing Association managing the accommodation. According to Mr Orbiso the appellant was an alcoholic who was "scary to live with." Mr Orbiso also alleged that there was an occasion when they were in the kitchen together and the appellant had exposed his genitals repeatedly saying "touch it" and another occasion when the appellant sexually touched Mr Orbiso.

Following an argument involving the two couples on 27 December 2023, the appellant became aware of the complaint. There was said to have been "bad blood" between the parties from that time.

On 8 January 2024 the appellant and his partner were given two months' notice that they should leave the accommodation but that notice did not result from Mr Orbiso's complaint. The appellant's partner no longer worked for the NHS. Initially he had been allowed to remain in the accommodation but following checks by the Trust he was informed that unless he could supply proof that he had applied to rejoin the NHS he would have to leave. When he did not supply the necessary confirmation the notice was served.

On the morning of 31 January 2024, Mr Orbiso was asleep in his bedroom. His partner was in the bathroom. The appellant entered Mr Orbiso's room holding a knife. He said: "You're gonna die, I'm gonna stab you in the neck and you're gonna die". Mr Orbiso jumped out of bed and tried to restrain the appellant to prevent him from stabbing him. The appellant stabbed Mr Orbiso in the back several times and said, "You'll be dead today". Mr Orbiso shouted for help and tried to grab the knife. Having lost his hold on the knife the appellant then started to choke Mr Orbiso and said: "I'm gonna choke you to death."

Mr Orbiso's partner came back to their room and saw the appellant strangling Mr Orbiso and holding him in a headlock whilst saying: "I'm going to kill him Sidney, I'm going to kill him". He saw the appellant hit Mr Orbiso's head against a wall. Mr Orbiso's partner was unable to pull the appellant away. He went to look for help and then called security and 999. Meanwhile the appellant left the flat and went to the reception area of the building where he was stopped by security. He said that he had just stabbed his flat mate. When the police arrived he repeated that admission. When arrested for attempted murder and cautioned he replied: "Yes I did. I tried to murder him." The appellant was noted to be calm and compliant. When interviewed later he replied, "no comment" to all questions.

As a result of the attack, Mr Orbiso sustained a stab wound to the left shoulder, with the presence of air beneath the skin of overlying muscles around the side of the neck and back, a stab wound to the upper left arm and seven stab wounds to the back, two to three centimetres in size, one of which was to the middle of the lower back. One of the stab wounds to the back extended between the muscles and fat located around the spine and was associated with the air beneath the skin tissues. He had also sustained a scratch wound to the lower left side of the abdomen and carpet burns to both knees. All of his wounds were closed and he was given antibiotics and painkillers. He had to take a month off work and felt unable to remain in the accommodation causing significant financial consequences for him.

In a victim personal statement prepared for the sentencing hearing, he described significant ongoing trauma. He had separated from his partner and attributed that to the impact of the offence. He often cried at night and felt that the incident would stay with him forever.

The appellant indicated that he would plead guilty at the first opportunity, entitling him to the maximum credit for his plea. He served a basis of plea in which he challenged aspects of Mr Orbiso's account. The appellant alleged that he and Mr Orbiso had engaged in consensual sexual activity around late November or early December 2023 which Mr Orbiso had concealed from his partner. The appellant denied the sexual impropriety alleged by Mr Orbiso and contended that the allegations made to the Housing Association were false. The appellant claimed that such false allegations caused a worsening of pre-existing mental health problems and resulted in him and his partner losing their home.

On behalf of the appellant, it was contended that the factual dispute about the truth or otherwise of Mr Orbiso's complaint was of significance to sentence and ought therefore to be resolved by way of a Newton hearing. It was suggested that the essential issue was whether the appellant had been provoked by Mr Orbiso to act as he did. It was submitted that a false allegation of sexual offending or sexual impropriety would understandably give rise to a serious feeling of having been wronged such as to amount to provocation which ought to be viewed as a mitigating factor bearing upon the sentence to be passed.

The Crown made it clear that the basis of plea was not accepted but disputed the need for a Newton hearing. They suggested that even if there had been a false allegation it was plain that what the appellant did amounted to a revenge attack which would, if anything, aggravate rather than mitigate the offending. Even if a false complaint was viewed as amounting to a form of provocation, the attack was so out of proportion that it would carry very little, if any, mitigation. The Crown submitted that determining whether the underlying complaint was true or false would have no real impact on the sentence.

The judge agreed with the Crown that a Newton hearing was not required. He concluded that the question of whether there had been consensual sexual activity between the appellant and Mr Orbiso would not affect the sentence. In relation to another issue, namely whether the appellant had threatened Mr Orbiso the previous day, the judge accepted that additional evidence had shown that that was not so.

The appellant, who was aged 61 at the date of sentence, had one previous conviction for an offence of actual bodily harm committed over 40 years earlier. He was otherwise of good character.

The judge had the benefit of a pre-sentence report and a psychiatric report on the appellant from Dr Sophia Anwar. The pre-sentence report noted childhood trauma involving sexual abuse committed when the appellant was aged around 10. It suggested that the appellant's poor mental state may have been a factor in the commission of the offence. The appellant was assessed as showing a lack of genuine remorse. The psychiatric report referred to a history of anxiety and depression, panic attacks and alcohol dependency. The appellant told the psychiatrist that he had received a letter from the Housing Association the day before the offence. He said that the following morning he had been drinking when he took the knife and went to attack Mr Orbiso. Dr Anwar diagnosed alcohol dependency syndrome and a gambling addiction. The appellant's mental health had improved whilst he was on remand. Dr Anwar suggested that the offence was precipitated by the allegations made by Mr Orbiso and the impending loss of the accommodation. Other than acute intoxication the appellant was not suffering from any abnormal or altered mental state at the time of the offending.

Having decided that no Newton hearing was required, the judge said that the appellant fell to be sentenced on the basis that he had taken the knife to the scene because it was taken from the shared kitchen into the private room which Mr Orbiso occupied with his partner. He assessed the offence as falling within Category B high culpability because it involved taking a knife to the scene and because it was a sustained attack. The judge said it was Category 2 harm noting that, "the psychological consequences of this brutal attack on a man as he slept in his own bed will live with him for the foreseeable future."

Having placed the offence in Category 2B, the judge said that the appropriate sentence before credit for plea fell at the bottom of the category range, namely 20 years. He identified the reasons for adopting the bottom of the category range as (1) what he described as the "limited geographical journey of the knife", (2) the fact that although serious the harm was perhaps only just over the borderline of serious harm in the context of this offence, and (3) personal mitigation, the appellant having led a blameless life as a carer for some 40 years and someone who could be considered to be a man of good character.

After allowing for one-third credit for the guilty plea and then rounding it down, the judge arrived at the determinate term of 13 years. The judge found that the criteria under section 280 of the Sentencing Act 2020 were met and that an extended sentence was necessary, fixing the extended licence period at five years.

By his grounds of appeal, the appellant made a number of complaints about the judge's approach. It was submitted that the judge had wrongly categorised the offence because he was wrong to treat this as a case in which the knife had been taken to the scene and was wrong to say that the psychological harm was serious in the context of this offence. It was also argued that the judge erred in failing to adjust the sentence to reflect the appellant's mental health. The single judge refused leave in relation to each of these grounds and no application has been made to renew those grounds before us. The sole ground on which leave to appeal was granted and which is pursued is that the judge erred in refusing to countenance a Newton hearing on the question of whether the appellant had been provoked by the false allegations said to have been made by Mr Orbiso.

As he did before the sentencing judge, Mr Davis for the appellant contends that a false allegation of sexual offending would have given rise to justified feelings of grievance on the part of the appellant. He stresses that that is all the more so as the appellant's belief was that the allegation was the real reason for his and his partner's eviction from their accommodation. Mr Davis contends that if the allegation was indeed false, it amounted to serious provocation, potentially having a significant effect on the sentence. He contends that it was something that was capable of amounting to provocation in the sense of prolonged stress. This, he says, ought accordingly to have been the subject of a Newton hearing.

We consider that the judge's approach to the disputed factual background was correct. The guideline identifies that "a significant degree of provocation" may be viewed as a factor reducing seriousness or reflecting personal mitigation. Even then, the judge is required to weigh all the circumstances, viewing the provocation in the context of what actually happened. It is certainly not the case that a downward adjustment to the sentence is required in every instance where an offender may justifiably feel aggrieved by something the victim may have done. In this case, whatever the truth or otherwise of the allegation, that allegation came to the appellant's attention over a month before the offence. Even on his own account, the appellant had done nothing to set the record straight or to clarify why he and his partner were being asked to leave the accommodation. He had simply continued to live in the same flat as Mr Orbiso until one morning, in drink, he took a knife and entered the bedroom where Mr Orbiso was sleeping, mounting a surprise attack with the intention of killing him.

Taking all the circumstances into account, the judge was entitled to conclude that even if what the appellant said about the original allegations being false was or may be true, that could not be viewed as a significant degree of provocation justifying any material reduction in sentence. It follows that there was no need for him to resolve the dispute factual background before proceeding to sentence.

In adopting a notional sentence after trial at the very bottom of the Category 2B range, the judge fairly reflected all the circumstances of the offence. We note a sentence of 20 years also represents the starting point identified for offences falling within both category 2C and 3B. The final determinate term of 13 years was equivalent to a sentence after trial of 19-and-a-half years. Regardless of the truth or otherwise of the appellant's account of the background to the offence, we do not consider that a sentence of that length can be considered in any way manifestly excessive. The judge was right to assess the appellant as dangerous and to impose an extended sentence. It is not suggested otherwise. Whatever the precise motivation, this was a vicious attack on a man who had just been woken from his sleep in his own bedroom. It was very far from a spur of the moment reaction to anything that may have occurred previously.

It follows that the sentence imposed was neither wrong in principle nor manifestly excessive. Accordingly, this appeal must be dismissed.