Neutral Citation Number: [2008] EWCA Crim 1060
No. 2008/01239/A3

IN  THE  COURT  OF  APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London WC2

Tuesday  22  April  2008

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Phillips of Worth Matravers)
MR  JUSTICE  PITCHFORD
and
MRS  JUSTICE  DOBBS

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ATTORNEY GENERAL'S REFERENCE Nos. 12 of 2008

UNDER  SECTION  36  OF

THE  CRIMINAL  JUSTICE  ACT  1988

R E G I N A

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ROBERT  COLE

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Mr E Brown QC appeared on behalf of the Attorney General
Mr S J Kileen appeared on behalf of the Offender
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J U D G M E N T
Tuesday  22  April  2008

THE LORD CHIEF JUSTICE:
Introduction
1.  On 8 February two 2008, in the Crown Court at Manchester, before His Honour Judge Gee QC and a jury, the offender Robert Cole was convicted of the murder or Arthur Gregg.  He was sentenced to life imprisonment with a minimum term specified by the judge of 18 years (less time spent remanded in custody).  
 
2.  The Attorney General applies under section 36 of the Criminal Justice Act 1988 for leave to refer to this court for review the sentence on the ground that the minimum term was unduly lenient.  We granted leave at the outset of this hearing.  
 
The Facts  
3.  Arthur Gregg, who was aged 76, lived on his own at 50 Urwick Road, Romiley, Stockport.  He was a retired accountant who had become rather frail and confused in the twelve to eighteen months leading up to his murder, which occurred on 31 October 2006.  
 
4.  The offender was born on 30 July 1975.  He was aged 31 at the time of the offence.  He was a heroin addict who funded his addiction by criminal activity.  
 
5.  In the six months leading to Mr Gregg's death, the offender and others had defrauded him of substantial sums of money amounting to nearly £27,000, in respect of building work which they told him needed to be done to his house.  Very little work was in fact done, and such work as was carried out was of poor quality.  

6.  Mr Gregg's son became concerned about his father's mental health and his payments for building works which did not appear to have been carried out.  In October 2006 he set up new financial arrangements for his father, whereby he could draw money for his day‑to‑day expenses but could not readily withdraw large sums from his building society.
 
7.  On 31 October 2006 Mr Gregg went to his building society to try to withdraw £350 in cash for repairs to the house.  He was told that he could only withdraw a sum of £10 as a result of the arrangements made by his son, and accordingly he left without the £350.  He had required £350 in order to hand it over to the offender who was waiting outside for him.  
 
8.  Forensic evidence established that the offender returned to Mr Gregg's house with him and there launched a savage attack upon him which led to his death.  Mr Gregg was found alone in his house on 3 November 2006 by his daughter.  He had 24 injuries to his head and neck, including fractures of facial bones, and 17 injuries to other parts of his body, arising from punches and possibly from kicks.  The focus of the attack was however on his head.  It is likely that some of the blows were received by him while he was on the floor.  The most likely cause of death was severe blood loss as a result of multiple external head injuries.  There was evidence that he had survived for some time after the assault for there was blood in a number of rooms in the house.  
 
9.  The offender had disconnected the telephone before leaving the house with Mr Gregg's car keys.  He took Mr Gregg's car, drove it to a scrap yard and sold it for something just over £100, from which a deduction was made, leaving him with £75.  There was evidence given that at that stage he had with him a wad of cash which, at the sentencing hearing, the prosecution submitted he must have taken from Mr Gregg's home.  
 
10.  The offender was convicted by the jury of the murder on 8 February 2008 after a trial that had lasted three weeks.  The offender put forward a fabricated account to the effect that he had gone to Mr Gregg's house to try to find money, had searched for it without success; but that he had not gone alone, he had been accompanied by two other men and they it was, according to him, who were responsible for the violence inflicted on Mr Gregg and for his death.  There is no evidence that suggests that there was anybody else present at the time of the murder.  
 
11.  Murder is an offence that attracts an automatic sentence of life imprisonment.  In these circumstances section 269 of the Criminal Justice Act 2003 required the judge, if he did not consider that the facts of the offence required the offender to spend the rest of his life in prison, to fix the minimum term that he would have to serve before being considered for release on licence.  This depended upon the judge's view of the seriousness of the offence.  In considering that question section 269 required the judge to have regard to the general principles set out at Schedule 21 to the Act.  

12.  Paragraph 5 of Schedule 21 provides, in cases where a full life term is not appropriate, that if the court considers that the seriousness of the offence is particularly high and the offender was aged 18 or over when he committed the offence, the appropriate starting point for determining the minimum term is 30 years.  Paragraph 5(2) states that cases that would normally fall within that category include: 

		"(c)	a murder done for gain, such as a murder done in the course or furtherance of robbery or burglary, done for payment or done in the expectation of gain as a result of the death."  

13.  At the sentencing hearing counsel for the offender submitted that there was a clear distinction between a murder done for gain and the facts of this case, where the murder appeared to have been carried out in frustration because the offender had failed to achieve the gain that he had anticipated.  Counsel submitted that in these circumstances the appropriate starting point was not 30 years, but 15 years.  He conceded that there were aggravating factors in accordance with those set out in Schedule 21.  The victim was vulnerable and underwent severe pain and suffering in the course of the sustained attack that caused his death.  Counsel submitted, however, that there were also mitigating factors ‑‑ again factors set out in Schedule 21 ‑‑ namely, that there was no intent to kill the victim and indeed the attack had not been premeditated.  
 
14.  The relevant part of the judge's sentencing remarks is as follows:  

		"You delivered many heavy blows to his face and head in particular.  You are a young, fit, strong man.  You inflicted fractures to his facial bones and his skull by punching, stamping on him or using some blunt instrument.  At least 40 separate blows must have been delivered, according to the evidence from the Home Office pathologist, and then you left him bleeding badly, unconscious or semi-conscious.

		You unplugged his telephone so that if he should regain his senses he would be unable to call for help and then you stole his car, which you then scrapped as soon as you could afterwards to obtain a miserably small amount to spend on yourself on drugs, to which you were addicted.

		This was a merciless, pitiless attack by you on a frail elderly man, in his own home where he should have been safe.  He survived for several hours after the attack.  It is obvious he must have been bleeding badly; there is an enormous amount of blood around his bungalow.  And thereafter, hours afterwards, he died alone from the injuries that you inflicted upon him.

		In the course of this trial, you have shown not the slightest trace of upset or remorse for what you did.  You sought to lay the blame, during the course of this trial, on others hoping to hoodwink the jury.

		You are a man with many convictions for offences of dishonesty and violence, including one offence of robbery and you have served sentences of imprisonment in the past.  The longest sentence you have served was one of three years' detention in respect of an offence of robbery and you were last sentenced to custody, prior to these matters, in January 2006 ...."

The judge went on to consider the appropriate starting point under Schedule 21.  He said:

		"I consider the appropriate starting point here is a minimum term of 15 years.  I am not convinced the 30 year starting point should apply, despite helpful submissions from Mr Carus.  It is not clear to me that this was a murder done for gain.  It may well have been done in consequence of a failure to gain.

		But, although this is a case with a 15 year starting point, there are, it seems to me, serious aggravating factors.  Firstly, under paragraph 10(b), the victim, Mr Gregg, was particularly vulnerable because of his age and state of health.  Secondly, under paragraph 10(c), you inflicted physical suffering on the victim before death and you left him effectively bleeding to death.

		It is said that I should reduce the starting point to reflect the mitigating feature because I should not be certain that you had an intention to kill rather than to do grievous bodily harm.  I agree with that submission, I cannot be sure that you intended to kill rather than to cause really serious bodily harm.

		But I balance against that the fact that you delivered many, many blows to this poor man.  I regard the aggravating features as being far more potent, as well as in number, double in number, to the mitigating features.

		In my judgment, taking into account those two aggravating features and the one less potent mitigating feature, I consider that the appropriate minimum term you must serve before you can be considered for release by the Parole Board is 18 years, less the 445 days you have been in custody on remand before today."

15.  For the Attorney General Mr Brown QC has submitted that the judge was wrong not to find that this was a murder done for gain; the judge should have so found and accordingly adopted a starting point of 30 years.  Mr Brown referred us to the evidence of the wad of cash seen when the offender went to sell the victim's car after the murder.  However, we consider that it would not be appropriate for us to have regard to that evidence as it was contested at the trial and the judge made no mention of it.  Mr Brown accepted that.  Nonetheless, he submitted that when the picture was viewed broadly this was an attack that was carried out for gain.  Quite apart from the fact that the victim's car was taken after the attack, the whole object of the offender's enterprise had been to obtain money from the victim.  Mr Brown submitted that, if we did not accept this submission, we should nonetheless proceed upon the basis that this was a very serious murder, notwithstanding that it does not fall within any of the specified examples in Schedule 21, and that we should adopt as a starting point a 30 year minimum term.  

16.  Mr Brown emphasised the aggravating features in this case: the vulnerability of the victim; the suffering he was caused; the ferocity of the attack; the fact that the attack took place in the victim's home; and the background of attempting to gain, even if this was not directly connected with the attack.  Mr Brown referred us to the decision of this court in R v Peters [2005] 2 Cr App R(S) 101, and submitted that Schedule 21 should not be approached too rigidly; the reality of the offence should be looked at, having regard to the particular facts.

17.  For the offender Mr Kileen submitted that the judge had been correct to conclude that this was not a murder committed for gain and to take a 15 year starting point.  Having done so, Mr Kileen submitted that the judge was best placed to decide upon the gravity of the offence.  At the hearing before him, leading counsel for the prosecution had relied solely on the submission that this was an attack that was carried out for gain.  He had not suggested that, even if that were not the case, nonetheless this was a particularly serious offence.  Mr Kileen submitted, it seems to us with justification, that when the sentencing remarks are considered the trial judge had in mind all the relevant aggravation and mitigation.

18.  We are concerned that at the sentencing hearing there appears to have been a somewhat mechanistic or arithmetical approach in this case, an approach perhaps encouraged by the terms of Schedule 21.  Schedule 21 is intended to provide general guidance to the assessment of the seriousness of an offence.  The factors set out in paragraph 5(2) are factors which will normally lead the court to conclude that the offence was one of particularly high seriousness.  If it does, then the section lays down a starting point for arriving at the minimum term of 30 years.  But whether the court starts at 15 or 30 years, the sentencing exercise requires an assessment of the seriousness, having regard to the facts of the particular case; and that can result, quite properly, in a sentence that is some distance from the starting point that has been taken.

19.  On the facts of this case it does not seem to us that the seriousness of this offence is greatly affected by the question of whether the violence was inflicted in the course of trying to obtain money from the victim or after such an attempt had failed.  The aggravating features in this case are much more significant than that question.

20.  This elderly, inoffensive and confused victim, who had already been pillaged of large sums of money, was brutally battered to death in a hideous and protracted assault in his own home.  The seriousness of this offence was high, whether or not it should be categorised as "particularly high".  There is mitigation, and it is mitigation that carries some weight: the lack of premeditation and the lack of intent to kill.  The disconnection of the telephone lends support to the thesis that the offender did not set out deliberately to kill the victim of his brutality.  However, having disconnected the telephone, as Mr Brown observed, the only possible chance that the victim might survive was removed.

21.  For these reasons we have reached the conclusion that the sentence imposed by the judge was unduly lenient in that it did not properly reflect the seriousness of this offence.  We have concluded that the appropriate minimum term that should be imposed is one of 22 years.  We quash the minimum term of 18 years reached by the judge and substitute the minimum term of 22 years.  Credit will be given, as by the judge, for the time spent on remand.