Life imprisonment – Minimum term – Mitigation – Murder – Sentencing guidelines

R v (1) John Height (2) Malcolm Anderson: CA (Crim Div) (Lord Chief Justice, Lords Justice Thomas, Leveson, Mr Justice Owen, Mr Justice Christopher Clarke): 29 October 2008.

The appellants (H and X) appealed against their life sentences with specified minimum terms imposed for the murder of X's wife (W).

X and H had worked together. X wished to end his marriage to W and discussed killing his wife with H. Subsequently X, after a night out with W, struck her on the head twice with a saucepan. Although W was wounded she did not lose consciousness. X then drove W to a pre-arranged meeting place where H was waiting. H handed X a hammer and X struck W repeated heavy blows to the head with it. When they thought W was dead they placed her in the back of H’s van. X returned home. H discovered that W was still alive and called X to say that he would not kill her. X then met H near a river, where X stabbed W repeatedly in the chest. They dragged W’s body to the river where she finally died. W’s body was found the next day. X was arrested. He immediately pleaded guilty and gave evidence against H. Although X stood to benefit financially from W’s death, his motive was to be rid of W. H’s motive was payment by X. H pleaded not guilty but was convicted.

The judge found that X had been the driving force behind the killing. H was sentenced to life imprisonment with a minimum specified term of 24 years and X was sentenced to life imprisonment with a minimum term of 22 years. The judge applied a starting point for H of 30 years as his motive was financial gain and a starting point for X of 15 years, in accordance with section 269 and schedule 21 of the Criminal Justice Act 2003. X submitted that his sentence was manifestly excessive. H contended that his sentence was manifestly excessive and that the application of the starting points in section 269 and schedule 21 had produced a result that was obviously unjust.

Held: (1) Relating the judge’s assessment of the relative characters of X and H, and their respective involvements in the present appalling crime, as a matter of elementary justice between defendants the court was surprised that the starting point for the sentencing decision in X’s case was half the starting point for H, and that the end result was that the minimum term to be served by X was shorter than that imposed on H. The provisions in the act were not intended to be applied inflexibly. An inflexible approach would be inconsistent with the terms of the statutory framework. H’s motive for involving himself in W’s murder was financial gain, whereas X’s motivation was simply to be rid of W. The appropriate starting point in H’s case, falling squarely within the express criteria contained in the act, was the 30-year term appropriate for cases of a ‘particularly high’ seriousness. However, something must be wrong with a conclusion that the starting point for a man who wished to have his wife murdered, and arranged and agreed to pay for it, should have a different starting point to the man he employed to carry out the killing, merely because no reference was made to the present type of case in either paragraphs 4 or 5 of schedule 21. The fact that the statutory framework omitted expressly to address this consideration did not preclude the sentencing judge from making the necessary judgment and deciding that the same starting point applied to both H and X. The potential absurdity was highlighted by the fact that, on the approach to the statutory framework adopted, the different starting points were applied even when, in the end, it was X and not his paid accessory who actually carried out the killing.

The understandable error into which the judge fell was to loyally focus on the specific criteria and overlook that there would be cases which, because of all the aggravating circumstances, would nevertheless make the seriousness ‘particularly high’, even if none of the express criteria applied to it. Although H’s financial motivation made a 30-year starting point appropriate, X’s culpability, with all the many aggravating features which were its hallmark, should also have been regarded as a case of particularly high seriousness and the same starting point adopted.

The correct starting point for both X and H was 30 years. X’s sentence fell to be reduced because of his guilty plea and the assistance which contributed to H’s conviction. X had no complaint at the assessment of 22 years. It was true that H lacked the mitigation open to X, but H was not the prime mover or the leader and his actions lacked the utter brutality displayed by X to his wife and mother of his children. H’s culpability was lower than X, but given the purely pragmatic reasons for allowing a discount to X for an early plea and assistance to the prosecution, a fair balance between the various considerations would, for different reasons, produce the same minimum term for him. The minimum term in H’s case was reduced to 22 years. X’s appeal was refused.

Appeals allowed in part.

Greg Dickinson QC, J Straw for the Crown; Timothy Barnes for Height; C Milligan for Anderson.