Dangerous offenders - Life imprisonment

R v Brown: Court of Appeal, Criminal Division (Lord Justice Elias, Mr Justice Eady, Mr Justice Macduff): 23 September 2011

The complainant was a prostitute. She worked for an escort agency. The defendant, aged 45, rang the agency and requested an escort to be sent to his address, which was a flat above some shops. The agency sent the complainant, who had had sexual intercourse with the defendant in the past. The complainant arrived at the flat. The defendant let her in and shut the door. They went into the bedroom. On the complainant's request, the defendant locked the bedroom door.

The complainant got undressed and she and the defendant had sexual intercourse during which she kept her eyes closed. Suddenly, the complainant felt something sharp pressing against her neck. She opened her eyes and saw that the defendant was holding a knife to her throat, while intercourse was still occurring. The complainant grabbed the knife and a struggle ensued. The defendant fell to the floor. The complainant took the knife and ran naked from the flat covered in blood, screaming for help. The defendant's neighbour heard her screams and went to her assistance. The police were called.

The defendant, who remained in the flat, called the emergency services and told them that he had just tried to kill somebody. The complainant suffered a deep laceration to her neck, which required significant stitching and which left a permanent scar. The defendant was arrested. He subsequently pleaded guilty to attempted murder on the basis that he had not pre-planned the attack and had acted spontaneously having found the knife which he kept near his bed for his own protection. A psychiatric report concluded that the defendant had alcoholic dependency syndrome with narcissistic traits, and anti-social personality traits.

The report concluded that the defendant presented a moderate risk of violence to women, to whom he had a negative attitude. A pre-sentence report detailed the defendant's history of violent relationships with women, including his ex-wife. However, he had no previous history of committing violent offences. It assessed the defendant as presenting a significant risk of serious harm to women and concluded that he was dangerous within the meaning of the Criminal Justice Act 2003.

The judge agreed with the assessment of the author of the pre-sentence report and found the defendant to be a dangerous offender, who required a sentence for public protection. The defendant was sentenced to life imprisonment, with a minimum term of 10 years, less time spent in custody on remand. In sentencing the defendant, the judge had given a discount of 15% for his guilty plea. The defendant appealed against sentence.

He submitted, inter alia, that, relying on R v Kehoe [2008] All ER(D) 423 (Apr), that the sentence was wrong in principle and that a sentence of imprisonment for public protection was more appropriate. He further submitted that the minimum term of 10 years, with a starting point that had to have been around 23 years, was too long and failed adequately to take account of the mitigating factors, including: (i) the guilty plea; (ii) the fact that the defendant had co-operated with the police; and (iii) that he had called the emergency services. The appeal would be allowed.

It was settled law that a life sentence should be reserved for those cases where the culpability of the defendant was particularly high or the offence itself particularly grave.

In the instant case, applying settled law, a sentence of life imprisonment was not appropriate. Further, the minimum term was too long. The appropriate starting point was 15 years having regard to the fact that a knife had been used. The appropriate sentence, after a trial, would be 17 or 18 years. Having regard to the mitigating features that would be reduced to 14 years.

The sentence of life imprisonment would be quashed and substituted by a sentence of imprisonment for public protection with a minimum term of seven years, less time spent in custody on remand. R v Kehoe [2008] EWCA Crim 819 applied.

Christopher Hudson (assigned by the Registrar of the Court of Appeal) for the defendant.