Case No: 200700312 C3
Neutral Citation Number: [2009] EWCA Crim 1304
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT ST ALBANS
HHJ FINDLAY-BAKER QC
T20057349
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 03/07/2009
Before :

LADY JUSTICE HALLETT
MR JUSTICE PENRY DAVEY
and
MRS JUSTICE GLOSTER
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Between :

	Regina	Appellant	
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	Derek Symmons	Respondent	
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(Transcript of the Handed Down Judgment of
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Mr E Fitzgerald QC and Mr P R Taylor (instructed by Birds) for the Appellant
Ms F Oldham (instructed by Central Criminal Court Trials Unit) for the Respondent

Hearing dates: 17th June 2009
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Judgment
Lady Justice Hallett: : 
1.	The appellant and his wife lived together for 37 years. By 2005 their marriage had been on the rocks for some time. Mrs Symmons described the appellant as controlling and frightening. He bugged her telephone calls. She was scared he might kill her. He claimed she was the one who was over assertive and in control of their relationship. He accused her of taunting him about his impotence and being rude about his mother. 
2.	She discovered he was having an affair and began divorce proceedings. They went to see a marriage guidance counsellor. Mrs Symmons began distributing her money and property in case anything happened to her and to prevent the appellant finding them. 
3.	On the evening of 5th September 2005 they went together to see the counsellor, they had dinner and returned home. That night the appellant killed his wife. He battered and strangled her to death. He claimed he was acting in self defence and because he was provoked. He wrapped his wife’s body in polythene, put her in the boot of his car and drove to France. He was in touch with his mistress on the way. 
4.	He was tried at the St Albans Crown Court before HHJ Findlay-Baker QC and convicted of murder on 11 December 2006. He was sentenced to life imprisonment with a minimum term of 16 years.  He appealed against conviction on a number of grounds, based for the most part on fresh medical evidence relating to his mental state at the time of the killing and at trial. Although two experienced psychiatrists had assessed the appellant for the purposes of the trial and opined that he was not suffering from a depressive illness at the time of the killing, the defence instructed Professor Eastman to make another assessment post conviction. On the basis of the appellant’s account to him, the professor was of the opinion the appellant may have been suffering from a depressive illness at the time of the killing. This may have amounted to an abnormality of mind as defined in the first limb of section 2 of the Homicide Act 1957. The doctor had doubts, however, about whether the appellant could overcome the hurdle in the second limb of section 2 of establishing that his responsibility for his actions was substantially diminished. This court differently constituted, presided over by Dyson LJ, heard the appeal and decided to hear from Professor Eastman de bene esse. 
5.	On 7th April 2009 the appeal against conviction was dismissed. We do not need to rehearse the facts and the arguments to any greater degree which are clearly set out in the judgment of the court delivered by Dyson LJ. Suffice it to say the court rejected the factual premises of Professor Eastman’s opinion and therefore rejected the opinion itself. Professor Eastman relied heavily upon the appellant’s account of his own symptoms which the court found “wholly unreliable”. Far from accepting the appellant was suffering from depression at the time of the killing the court was of the view there was evidence which pointed the other way.  It was hoped that the same constitution would hear the appeal against sentence but this has proved impossible. 
6.	We begin with the judge’s sentencing remarks the relevant parts of which have been helpfully summarised for us. The trial judge stated that he would sentence on the basis 
(a)	The killing was an impulsive act and therefore unplanned; 
(b)	The intention was to kill;
(c)	Neither self-defence nor provocation played any significant part;
(d)	The personality disorder upon which the appellant relied did not significantly reduce the culpability;
(e)	The conduct after the killing was cold and callous and a significant aggravating feature
(f)	His age was “a factor to be considered” and “to a lesser extent [his] good character”.
7.	Mr Fitzgerald QC argued the minimum term of 16 years was excessive for two principal reasons. First, the appellant is in his early sixties. If the minimum term of 16 years stands, he will be 78 at his earliest release date. He may die in prison. This was clearly a case in which a whole life tariff would not have been justified yet this may be the effect of a tariff of 16 years. This is a relevant factor which, Mr Fitzgerald insisted, the judge failed sufficiently to acknowledge.  Mr Fitzgerald referred us to two decisions of this court on the issue of the relevance of age to the setting of a minimum term. The first was  Malcolm Horsman 2007 EWCA Crim 2589. Moses LJ giving the judgment of the court stated in the final line of para 9: 
“he can hardly rely to any great extent upon his age bearing in mind that he chose to kill his wife when he was already 65 but it is something that we take into account because the impact of a life sentence on an older man must be greater.” 
8.	Moses LJ went on to observe the court was prepared to reduce the minimum term for a number of other reasons which had nothing to do with age and stressed: 
“in doing so we are not in any way seeking to create a precedent or guidance in these difficult cases where an older man of intelligence commits so serious an offence. But this case has particular features….”  
9.	Those “particular features” do not apply to Symmons’s case. Nevertheless, Mr Fitzgerald sought to rely upon what was, in our judgment, a fact specific decision.
 He also relied upon Daniel John Archer 2007 EWCA Crim 536. Archer was sentenced to a minimum term of 30 years. Burton J giving the judgment of the court said this at para 31: 
“ We are clear that the authorities to which we have been referred by the appellant and indeed a common sense construction of para 11 (g) (of Schedule 21 of the Criminal Justice Act 2003) must mean that one of the factors which will be taken into account in relation to a sentence as long as 30 years or less in terms of serious crimes is the possibility of light at the end of the tunnel…..” 
10.	The court decided to reduce Archer’s minimum term to 25 years so that he would be eligible for parole aged about 78 as opposed to aged about 83 years. Although the minimum term set in that case was one of 30 years, Mr Fitzgerald sought to extrapolate from it the proposition that if, in reality, (based upon actuarial presumptions of life expectancy), an offender may die in prison,  the court should reduce any minimum term to allow for “light at the end of the tunnel”. 
11.	The second principal ground of appeal relates to the mitigating and aggravating features of the case. Mr Fitzgerald argued there was here an abundance of mitigating features and an absence of aggravating features, other than the attempt to escape to France (texting his mistress on the way) with the deceased’s body wrapped and stuffed in the boot of his car. Mr Fitzgerald reminded the court the attempt to conceal the body did not last long. When the appellant’s daughter phoned him enquiring after her mother he came to his senses and gave himself up to the French authorities. He consented to extradition to England for trial. 
12.	As for the mitigating features Mr Fitzgerald argued it was important to note the judge found this was an impulsive and unplanned killing. If that is so, something must have happened after dinner which triggered the appellant’s reaction. Mr Fitzgerald invited the court to accept it must have been, as the appellant claimed, that the deceased taunted him with his baldness, about his mother and about his impotence. He reminded the court there was independent evidence that she had mentioned his impotence in the past. 
13.	Accordingly, Mr Fitzgerald rather boldly submitted the trial judge was wrong to dismiss provocation as relevant to sentence. The difficulty with that argument, to our mind, is that the prosecution asserted confidently that there never was any taunting. Their confidence was based on the fact the appellant made no mention of being taunted when he spoke first to the French and the British police. The jury’s verdict indicates they accepted the prosecution case to a large extent. There was also compelling evidence before the jury, including evidence from the appellant’s own son and daughter that he is a “master of spin”, very controlling and not one to be crossed. There was, therefore, ample justification for the judge’s description of his version of events as a “web of deceit”. 
14.	As the judge observed in his sentencing observations: 
“I conclude that you killed your wife in an impulsive act when, uncharacteristically, she stood up to you. Nothing she said or did justified any violence on your part let alone the extreme and savage beating and strangling that you meted out to her”. 
15.	We reject, therefore, as being totally without foundation, the assertion that it was not open to the trial judge to make the findings of fact to which the appellant takes exception. It was. 
16.	Next Mr Fitzgerald had intended to rely upon both the fresh medical evidence and the effects of the appellant’s “mental history”, to which he suggested the judge gave insufficient weight. Given the comprehensive rejection of Professor Eastman’s opinion in the judgment dismissing the appeal against conviction, Mr Fitzgerald was forced to adopt a fall back position. He reminded the court the appellant had a “history of depression” and it was accepted at trial that he suffered from a personality problems and hypersensitivity. This he translated into the contention that the appellant is not a “normal healthy person” and some allowance should be made for that fact. 
17.	Mr Fitzgerald and his junior produced a schedule setting out the history of the appellant's mental condition and “personality problems” which went as far back as the appellant's birth and bed wetting between the ages of 6-12. We were referred to a family history of depression. The appellant himself had a breakdown in 1988 and a “recurrence of depression” in 2002. Following the breakdown he was prescribed Viagra for erectile dysfunction. In 2000/2001 he claimed he ran upset from a restaurant when his wife was rude about his mother. In 2002 there is evidence that his wife mentioned his impotence.  In 2002/3 the appellant bugged his wife and reacted with great anger to her affair. In 2004 he began a sexual relationship with his lover Myra. In August 2005 the deceased made a doctor’s appointment for him. On the day of the killing, he was described as “not looking his normal self” and was given a diazepam tablet. 
18.	We accept that this history may show two things: i. he is the kind of man who may overreact to events and ii. he may have been troubled by emotional problems at the time of the killing. However, his problems were far from uncommon. The fact is he was not suffering from a depressive illness at the time he beat and strangled his wife. His actions were not the result of any illness or mental disorder. They appear to have been prompted by rage at his wife’s infidelity and her refusal to accept his authority. The appellant may not have been feeling at his best, but that is a far cry from saying that he deserves a reduction in his sentence. Many people have been through far worse than the appellant and have not resorted to murder. In any event the judge bore in mind his “personality problems” and was able to assess them for himself. His finding that they did not diminish the appellant’s culpability was entirely open to him. The appellant’s mental state may have deteriorated after the event but that is hardly surprising.
19.	Finally, Mr Fitzgerald drew our attention to the fact that the appellant has responded positively to his time in prison and there are good reports upon him. We note, however, that, it would appear from the prison reports that he continues to attempt to justify his conduct by reference to the same self serving account rejected by the judge and jury at trial.  
20.	We have come to the following conclusions: the appellant stood to be sentenced on the basis he lost his temper with his wife and launched a sustained and savage attack upon her. Although the murder was in no way pre-meditated, at the time, he intended to kill her and ensured he did so. Afterwards, he behaved in an appallingly cold blooded and cold hearted way, no doubt adding considerably to the distress of his own children. This is a significantly aggravating feature. The appellant did not have the benefit of a plea of guilty or expressions of genuine remorse, but he is a man in his early 60s who does have the benefit of a good character. 
21.	On the question of the appellant’s age, we accept that it may well be a material consideration that the effect of the minimum term could be to sentence an offender to die in prison. The judge may not have referred expressly to that possibility in his sentencing observations, but he did refer expressly to the appellant’s age. It was obvious to all that the appellant is a man of mature years and previous good character upon whom any prison sentence, let alone a life sentence, will weigh heavily. The inevitable consequence of a 62 year old man’s committing a murder, for which the agreed starting point is a minimum term of 15 years imprisonment (to serve), is that he is going to grow old if not die in prison. His age, therefore, cannot be determinative of the finishing point; it is but one factor to be borne in mind as part of the sentencing process. 
22.	We have borne very much in mind all the circumstances of this offence and this offender, as put before us by Mr Fitzgerald, with his customary skill. However, sentencing is not a mathematical exercise. The aggravating and mitigating features in Schedule 21 of the Criminal Justice Act 2003 are not exhaustive; nor are they prescriptive in the sense that they prescribe a specific level of uplift or discount for the presence or absence of aggravating or mitigating features.  The trial judge must assess this for himself and is best placed to do so. He must assess the offender, his culpability and the gravity of offence, balancing the aggravating and mitigating features. This is precisely what HHJ Findlay-Baker QC did here. The trial judge will usually have, and this trial judge clearly had, a feel for the case which the members of this court cannot match. For all these reasons, we are not persuaded that a minimum term of 16 years can be described as manifestly excessive. 
23.	The appeal against sentence must also be dismissed