No. 2007/02118/A7
Neutral Citation Number: [2007] EWCA Crim 2257
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Friday  24  August  2007

B e f o r e:

LORD  JUSTICE  GAGE

MR  JUSTICE  TREACY

and

MR  JUSTICE  RAMSEY
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R E G I N A

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ANDREW  RANDALL
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Mr G A Kearl QC appeared on behalf of the Applicant

Mrs F Oldham QC appeared on behalf of the Crown
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J U D G M E N T
Friday  24  August  2007

LORD JUSTICE GAGE:  I will ask Mr Justice Treacy to give the judgment of the court.

MR JUSTICE TREACY: 
1.  The applicant is Andrew Randall.  On 15 November 2006, in the Crown Court at Northampton, he changed his plea to guilty in relation to charges of causing grievous bodily harm and murder (counts 5 and 6).  On 13 March 2007, at the same court, he changed his plea to guilty in relation to four counts of sexual activity with a child family member (counts 1-4).  In each case the victim was his baby daughter.  The judge, His Honour Judge Wide QC, imposed a sentence of life imprisonment on count 6 (murder); he made a whole life order and declined to make a minimum term order pursuant to section 269(2) of the Criminal Justice Act 2003.  As to the remaining counts, a sentence of life imprisonment was imposed on count 5 (grievous bodily harm), in relation to which a specified minimum term of three years was imposed; and in relation to counts 1-4 (the sexual offences), four years' imprisonment was imposed to run concurrently on each of those matters.  The application for leave to appeal against sentence has been referred to the full court by the Registrar.  We give leave.

2.  The circumstances are these.  The deceased was the appellant's seven week old daughter.  She had been born on 29 September 2005.  She was born five weeks prematurely.  She had a heart defect.  She spent the first fortnight of her life in a special care unit at the local hospital.  Staff at the hospital were concerned about the lack of bonding between the child and her parents, and they contacted Social Services.  The child's mother had been in care and suffered from schizophrenia.  The mother refused to consent to special care being provided for the child.

3.  After her release from hospital the child was taken to a doctor on three occasions during October and November suffering from abdominal pain or sickness and diarrhoea.  

4.  Then on 7 November the mother took the child to the doctor because of noisy breathing, choking and coughing.  The doctor noted scratches around the nose and mouth, which the mother said were self-inflicted.  The doctor also saw a 3cm circular bruise to the right cheek.  The mother explained that the child had fallen asleep on her dummy.  Notwithstanding those explanations the doctor was concerned and the duty social worker was contacted.

5.  On the following day the child was taken to hospital.  She was crying in a strange manner and twitching.  On 9 November the child was taken to her general practitioner.  That doctor observed twitching in the left eye and admitted the child to the local hospital.  The child was examined.  No retinal haemorrhages were seen and she was prescribed Phenobarbitone and kept in hospital until 15 November 2005.  Once again staff were concerned about a lack of bonding between the child and her parents.  Social Services were again contacted and weekly home visits were arranged.

6.  The first of those visits occurred two days later.  A full examination of the child was conducted, but nothing abnormal was seen by the social worker.

7.  On 21 November 2005, in the early hours of the morning, paramedics attended the appellant's home as a result of an emergency call made by the mother.  The child was very pale and cold.  She was taken to hospital, where she was pronounced dead at 1am.  Small bruises were noted on the child's chin.

8.  The following day a pathologist, Professor Rutty, carried out a post mortem examination.  He noted that the child was underweight and had external bruising to her face and around her ears.  She had four circular bruises grouped in a square pattern.  She also had suffered an acute subdural haematoma over the brain.  Stellate fractures were found to the right parietal bone which showed no obvious signs of healing.  One limb of the stellate fracture was quite wide.  This suggested a forcible impact.  The pathologist stated that the deceased would have been unconscious following that injury, with death following shortly.  It was his opinion that there was evidence of more than one episode of head injury.  That was demonstrated by the presence of recent subdural haematoma, in addition to older bleeding.  The pathologist also found a number of rib fractures.  There were sixteen fractures in all, varying in age between one and five weeks.  Professor Rutty concluded that the head injuries had resulted from impact with a hard surface and that they were the cause of death.  The pathologist confirmed that the injuries which he had found were consistent with the actions of the appellant, as stated in his interviews with the police.

9.  When he was interviewed, the appellant dealt first of all with the night on which the child had died.  He said that the child's mother had gone to bed and that the child would not settle.  At about 10.15pm he had picked up the baby.  She kept crying, so he forcibly put his hand over her mouth to stop her crying and breathing.  He said that he had done that to stop her making a noise; it had worked on a previous occasion.  He said that on this occasion the child continued to cry and so he repeated the action four or five times, until he knew that she was close to suffocation.  At that point he put the child's head under a blanket so that her mother and neighbours would not hear the noise she was making.  

10.  The appellant also described abuse of the child prior to the day on which the child died.  He said that he had "tortured" (a word he used) and physically abused her by flicking her nose and ears, squeezing her nostrils together while holding his hand over her mouth, causing her to suffocate for brief periods.  He said that he would pull her ears away from her head and that he had on occasions slapped her to the face.  He had held her under her arms and shaken her on occasions when she was crying.  He also described putting his fingers deep into the child's throat on a number of occasions, again apparently to stop the child crying.  He accepted full responsibility for his actions which had resulted in the child's death.  He said that his abuse had started about two weeks after the child had come home from hospital.  When she was about two to three weeks old he had begun to shake her.  He sometimes lost control if she started to cry.  He would then try to suffocate her or would drop her on the floor from the settee.  He estimated that he carried out the action of dropping the child from a height on about a dozen occasions.  He said that he would also on occasions throw her against the back of an armchair or sofa when he felt angry that she would not settle.  He knew that what he was doing was wrong, but continued to do it.

11.  The appellant admitted to the police further instances of abuse.  Those included kicking or propelling the child across the carpet using his bare feet.  He described it as "nudging" her.  He also admitted stamping on the child's chest with his bare feet and having heard on at least one occasion something snap.  He told the police that, in addition to that, he had on occasion held the child upside down by her feet and that he had forcibly straightened her arms and legs.

12.  He acknowledged that the skull fracture found during post mortem was likely to have been caused by his holding the child's head against the sofa and pushing it whilst applying pressure.  He said that he had made two or three hard pushes with his hand.  He acknowledged that her head may have hit the wood of the sofa, although he stated that he had not intended that to happen.  In dealing with the evening of the fatal injuries, he acknowledged that on that evening he had placed his hand over the child's mouth and brought her to the point of suffocation; that he had violently shaken her; that he had, as on other occasions, put his fingers down her throat in order to shut her up; and that he had slapped her.  

13.  Despite those admissions, which were consistent with the pathologist's findings, the appellant repeatedly said that he had not intended to kill the baby.  However, he referred to what he had done as "torturing" her.

14.  In relation to the count brought under section 18 of the Offences against the Person Act 1861, he acknowledged gripping and shaking the child on a number of occasions as part of a course of conduct, putting his hand over her mouth, flicking her nose and ears and stamping on and gripping the chest in a way that caused the rib fractures.

15.  In relation to the sexual offences, he admitted that when the child was about three weeks old (and therefore about a month before her death) he had sexually abused her by inserting his finger as far as the second knuckle into her anus.  He said that he had also touched her inappropriately around her vagina whilst changing her nappy; and that on two or three occasions he had rubbed his penis against the baby's mouth.  

16.  In the course of his interviews, the appellant described how he suffered from violent mood swings.  He said that at time he resented the baby, but maintained that on the night in question he had not set out to kill her.  However, he admitted that he had thought about killing the child every day and recognised that his daughter was in danger from him.  He said that he thought daily about killing somebody and that he would have done this years ago but for his mother still being alive.  He had thought about killing his partner.  He admitted that those thoughts made him feel excited.  He stated that it was his destiny to kill someone.  He knew that it would happen, but he did not expect it to be his child.  He said that he mainly thought about torturing and imprisoning women, but said that he had not told his general practitioner about that as he had not wanted to be caught before he did something.  He went on to remark that he had thought about hurting and killing as many people as he could.  He had thought about this and realised that he would be sent to prison for it.

17.  In passing sentence the judge observed that, because of the circumstances of the case, he considered the appellant to be extraordinarily dangerous.  He did not accept that the appellant did not intend to kill his child, having regard to what he had told the police.  The judge said that the murder was premeditated because of the admissions which the appellant had made about continually thinking about killing.  He said that he was satisfied that there was a sexual element to the killing because the sexual actions of the appellant were inextricably bound up with the violence.  However, the judge went on to say that, even if there was no sexual element, the age of the victim, the abuse which had lasted most of the child's life, the pre-meditated killing and the gross breach of trust all amounted to factors which made the seriousness of the case exceptionally high.  In those circumstances the only appropriate sentence was one of life imprisonment with a whole life order.  In the course of sentencing, the judge had correctly identified the test as being whether the seriousness of the case was exceptionally high.

18.  The appellant is 34 years of age.  He had not previously been convicted.  There was before the court a psychiatric report prepared by Dr Mark Hancock.  It was dated 20 February 2006, but in fact had been prepared on 20 February 2007.  Dr Hancock had been instructed by the Crown Prosecution Service.  This was the only psychiatric report which was before the judge for his consideration.  It is necessary to read certain extracts from that report for an understanding of this case.  At page 4 of the report Dr Hancock reported observations which the appellant had made in the course of his assessment of him as follows:

"I note that Mr Randall has frequently denied any intention to kill Jessica on the night of the offence, though he admitted harming her in various ways and knowing that he would have been causing her significant pain.  He has apparently stated on numerous occasions that his actions were motivated by a desire to make her quiet, though this account has been complicated by his further admission that he often thought about killing her and wanting her to be dead.  In addition, he has indicated some long-standing sadistic and violent fantasies, predominantly relating to adult women.

Mr Randall told me, 'I've always been a control freak -- everything always has to be in order.  I don't like losing control of my life, myself.  I like things to be in my hands.  I think that's why Jessica died in the end, because she couldn't be what I wanted her to be'.  He said that this comment related to her continual sickness and that he wanted her to be either well or gone.   ....

....  He told me that he 'never intended to kill her that night'.  With reference to his reporting that he had wanted her to be dead, he said, 'I just wanted her to get better or not be part of my life I couldn't control.  I was needing something to change'.  He described his state of mind at the time as 'tired and emotional'."

Later in his careful report under "Opinion and Recommendations" Dr Hancock says this:

"With regards to diagnosis, there is no current evidence that Mr Randall is suffering from a mental illness.  I would note, however, that in the period leading up to the index offence he describes feeling rather unconcerned with his own well-being and uninterested in his previous activities.  This might suggest the presence of some underlying depressive disorder, though I note that when Dr Shapero, Consultant Forensic Psychiatrist, interviewed him in HMP Woodhill in February 2006 he did not think that Mr Randall was clinically depressed. ....

		....

Whether Mr Randall's index offences relate to underlying sadistic fantasies is a more complex issue.  I would note that, although prevalence studies of sadistic fantasies within the community are not readily available, there is clearly a market for the extreme forms of material accessed by Mr Randall, and it would seem unlikely that a very significant proportion of those individuals harbouring some sadistic fantasies go on to commit serious crimes.  Moreover, whilst Mr Randall reports a twenty year history of intermittent sadistic fantasies, there is very little evidence to suggest that he had previously acted on them; he apparently has no previous convictions and denies any history of cruelty to animals or of violence to others.  I am also unaware of any significant aggression within his relationship with [his partner], despite her apparent vulnerability

In my opinion, it is therefore likely to be too simplistic to suppose that Mr Randall's actions towards Jessica were driven predominantly by a sadistic motivation.  I believe that this is a complex case, but in viewing his history in its entirety it appears striking that Mr Randall, despite seemingly having a reasonable cognitive capacity, has throughout his adult life been unable to maintain close interpersonal relationships, to respond appropriately to even minor setbacks and to develop a meaningful self-identity.  In respect to this, I can hardly imagine how he would have coped with being the main carer for his partner (who apparently suffered from a major mental illness, and a sickly baby daughter.  In my opinion, Mr Randall's own claim (that he wanted Jessica to be either well or gone) is quite likely to represent a fairly accurate assessment of his state of mind at the time.  This would, of course, be entirely in keeping with the various ambivalences in other areas of his life that have been noted in this report.  I believe that it is quite likely that he did, genuinely, harbour varying and contradictory feelings towards Jessica, including love, anger and resentment.

The future risks posed by Mr Randall, therefore, would seem to depend on a longitudinal assessment of his ability to reach a deeper and more meaningful understanding of his own motivations (both in relation to the index offence and his wider relationships and life choices).  I believe that the sadistic features, along with other aspects of his personality, will need to be explored in greater detail over time."

19.  Mr Kearl QC, who appears on behalf of the appellant, in helpful and cogent submissions argued, first, that, grave as this conduct was when looked at overall, nonetheless it did not attain a seriousness which could properly be categorised as exceptionally high.  It was not necessary in this case for a whole life order to be made, as opposed to a finite but lengthy minimum term to be fixed.  The physical abuse did not come into the exceptionally serious category, nor did the sexual abuse.  Given the nature of this case, we observe that these submissions were made with due moderation and in a proper attempt to address the context of the legislation.  Secondly, he submitted that paragraph 4(2)(b) of Schedule 21 to the Criminal Justice Act 2003 did not apply.  Paragraph 4(2) sets out examples of conduct which would normally bring the case within the whole life category.  After an analysis of the judge's sentencing remarks, the Crown agreed that the judge had not sought to bring the case within paragraph 4(2)(b) but had made the whole life order on the basis of an overall assessment of the offending as having exceptionally high seriousness under paragraph 4(1).  Accordingly, this limb of Mr Kearl's submissions holds good.  Thirdly, he submitted that the judge was wrong to hold that there was premeditation and that there was an intention to kill.

20.  The Crown's stance in response to those submissions overall was that the judge had had the appropriate test in mind and that he was entitled to form a view based on all of the offending.  Mrs Oldham QC submitted that the judge had made a careful analysis of all the information.  We agree.  However, the essential question is whether he came to the right conclusion.  She took us with considerable care through the detail of the appellant's interviews with the police.  They form an important part of this case.  By the end of the Crown's submissions we had seen and considered exactly the same materials as the judge below had seen before coming to his decision.

21.  In considering the submissions regarding Schedule 21 to the Criminal Justice Act 2003, we remind ourselves of passages in the judgment of this court in R v Neil Jones and Others [2006] 2 Cr App R(S) 21 at page 121.  In the judgment, Lord Phillips CJ said:

"8.  The starting points give the judge guidance as to the range within which the appropriate sentence is likely to fall having regard to the more salient features of the offence, but even then, as paragraph 9 recognises, 'detailed consideration of aggravating or mitigating features may result in a minimum term of any length (whatever the starting point), or in the making of a whole life order'.  The starting points must not be used mechanistically so as to produce, in effect, three different categories of murder.  Full regard must be had to the features of the individual case so that the sentence truly reflects the seriousness of the particular offence.

....

		The whole life starting point

10.  The scheme of Schedule 21 is that the judge first determines the starting point and then considers whether it is appropriate to adjust the sentence upwards or downwards to take account of aggravating or mitigating factors.  This approach is manifestly not possible in respect of a whole life order.  A whole life order should be imposed when the seriousness of the offending is so exceptionally high that just punishment requires the offender to be kept in prison for the rest of his or her life.  Often, perhaps usually, where such an order is called for the case will not be on the borderline.  The facts of the case, considered as a whole, will leave the judge in no doubt that the offender must be kept in prison for the rest of his or her life.  Indeed if the judge is in doubt this may well be an indication that a finite minimum term which leaves open the possibility that the offender may be released for the final years of his or her life is the appropriate disposal.  To be imprisoned for a finite period of 30 years or more is a very severe penalty.  If the case includes one or more of the factors set out in paragraph 4(2) it is likely to be a case that calls for a whole life order, but the judge must consider all the material facts before concluding that a very lengthy finite term will not be a sufficiently severe penalty.

....

15.  We agree .... that the court should consider the fact that the defendant has pleaded guilty to murder when deciding whether it is appropriate to order a whole life term.  This is true of every mitigating factor.  But, as we have already observed, a case which calls for the imposition of a whole life term is unlikely to be a borderline case."

It is plain from those observations that each case must be fitted into the correct place in the hierarchy of starting points by reference to a careful consideration of all of the factors of the case in order to reflect the seriousness of the offence.  Secondly, the expectation is that there should be a degree of clarity about the need for a whole life order before it is made.  The sentencer should be left in no doubt that such a course is necessary.

22.  Turning to a comparison of paragraph 4(1), dealing with a whole life order, and paragraph 5(1), dealing with the 30 year minimum term, we see that, whereas in the former case the court's assessment of the seriousness of the offence and any associated offences must be that it is "exceptionally high", in the latter case the requisite phrase is "particularly high".  These terms are not defined.  They are plainly open to a degree of subjective interpretation.  However, the sentencer is assisted at paragraphs 4(2) and 5(2) respectively by examples of conduct which would "normally" bring about a particular starting point, subject also to a consideration of the aggravating and mitigating features referred to at paragraphs 8-11.  All of this emphasises the flexible (or non-mechanistic) nature of the scheme under Schedule 21.

23.  In this case the judge held that the seriousness of the murder, taken with the associated offences, was exceptionally high.  He held that there was a sexual element to the murder because it was inextricably bound up with the violence.  We cannot accept that to be a correct analysis.  The sexual offending in this case took place a month or so prior to the child's death.  There was no safe evidence that what happened on the day of her death involved any sexual activity or motivation.  However, the judge went on to say that, if he was wrong about that aspect of the matter, he nonetheless regarded the case as exceptionally serious for the reasons cited earlier in this judgment.

24.  We turn next to what lay behind this offence.  On any objective view the appellant's conduct over the few weeks of this child's life could properly be described as brutal and cruel.  However, it is plain from Dr Hancock's report that the case is a complex one and that there is a degree of ambiguity about what led the appellant to kill his daughter on the night in question.  In the end, Dr Hancock's view was that it was quite likely that the appellant had accurately represented his state of mind as being that he wanted his daughter to be "either well or gone".  In these circumstances we understand why the judge left open the question of whether the example at paragraph 4(2)(b) applied and instead concentrated on the primary question of whether the seriousness of the offending was exceptionally high.

25.  We turn to the question of intention.  The appellant always maintained that he had no intention to kill on the night in question.  However, the judge rejected this.  He said:

"You killed her by fracturing her skull.  This was, the doctors are agreed, high impact on something hard.  I am asked to deal with you on the basis that your intention was not to kill.  That is not what you said to the police.  You said that you set out to kill the baby and one could not come to any other conclusion.  You have been fantasising about it on your own account every day.  And to that extent of course this was premeditated in the sense that you had continually thought about it.  And added to that one of the themes of your cast of mind is the idea of destiny and you made it explicitly plain that you regarded this, the killing of the baby, as destiny, that you knew it was going to happen."

It seems to us that the judge appeared to have been misinformed to some extent about what the appellant had said in interview.  We have been taken carefully through the relevant interviews by counsel.  The appellant undoubtedly said that he had fantasised on a regular basis about the death of his daughter.  However, he had never expressly said that he had set out to kill her on the day of her death.  Rather, he had said the opposite: he had just lost control on that night.  Moreover, in his remarks about his destiny, he had said that although he knew in his heart that he would kill someone, he did not expect it to be his child.

26.  That said, we have come to the view, first, that the acknowledged fantasising amounted to premeditation and that the judge was correct to make this finding.  Secondly, we hold that, although the judge was misinformed as to the details referred to above, when the whole history, the interviews and the psychiatric report are considered, it is entirely safe to conclude that the appellant had an intention to kill at the time of the murder.  That finding of course cannot be decisive as to the category into which this case falls.  Depending on all the circumstances of a particular case, an intention to kill may be a feature of a 30 year or indeed a 15 year minimum term case, as much as it may be a feature of a whole life case.

27.  In our judgment this was an extremely difficult case.  The trial judge plainly approached it with characteristic concern and care.  But we are left with a feeling of considerable unease about his conclusion that this case warranted a whole life sentence.  Each of us had independently come to the conclusion that, appalling as this case was, it did not call for a whole life sentence.  This is at the heart of our decision.  As Jones makes clear, the imposition of such a sentence should be reserved for those cases where the need for it is clear-cut.  For many offenders the difference, even between a 30 year minimum term and a whole life sentence, is likely to be substantial, thus emphasising the need for careful and clear-cut analysis before a court would consider the whole life term to be called for.  Given the need for clarity before such a sentence is imposed, we differ from the view of the trial judge that this case fell into the exceptionally serious category.  We do not consider that the killing involved sexual motivation.  There is, in our judgment, a lack of certainty as to what led to the killing on the night in question, having regard to the contents of the psychiatric report.  The appellant had plainly fantasised about, and contemplated, his daughter's death, and to that extent had premeditated it.  Although we have concluded that there was a clear intention to kill on the day in question, that is not determinative of the matter.  We consider that there is some force in the submission that, vile and grave as was the physical and sexual abuse meted out to this child, it was not at the very top end of the scale.

28.  For these reasons we do not feel that it is safe to conclude that the judge was correct to regard this case as calling for a whole life order.  The aggravating features of the case are all too plain: the brutal and cruel nature of the appellant's behaviour; the breach of trust; the vulnerability of the child; her tender age; the course of serious violent and sexual misconduct; the pain and suffering inflicted upon the child; and the premeditation in the sense discussed.  Those are all serious aggravating features.  There is some mitigation for guilty pleas (albeit not tendered at the earliest stage).  We also bear in mind that the appellant has not previously been convicted.

29.  In those circumstances we have no hesitation in finding that the seriousness of this murder and associated offences was particularly high, thus attracting a 30 year minimum term.  Upon a trial we would have fixed a term in the region of 33 years.  But, allowing for such mitigation as there is, we fix the minimum term to be served before the Parole Board can consider the appellant for release at 30 years.  We substitute that term for the whole life order imposed by the judge in relation to count 6.

30.  We stress that the 30 year term is a minimum.  It will be for the Parole Board to assess at the end of that period whether the appellant can safely be released without danger to the public or any section of it.  That decision will depend on his condition at that distant point in the future.  There is, as the trial judge observed, a real possibility that even at that stage the appellant will not be able to be safely released.

31.  To the extent indicated, the appeal in relation to count 6 is allowed.  The other sentences imposed remain unaffected.

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