No. 2009/03590/A1
Neutral Citation Number: [2009] EWCA Crim 2484
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Thursday 5 November 2009

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)
MRS  JUSTICE  RAFFERTY  DBE
and
MR  JUSTICE  HENRIQUES
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R E G I N A

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JONATHAN  CLARKE
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Mr A J Arlidge QC appeared on behalf of the Applicant

Mr K Khalil QC appeared on behalf of the Crown
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J U D G M E N T
Thursday  5  November  2009

THE LORD CHIEF JUSTICE:  
1.  This renewed application for leave to appeal against sentence by Jonathan Clarke following his conviction for murder on 29 May 2009, in the Crown Court at Norwich, before Calvert-Smith J and a jury, arises from a particularly horrific murder.  At the conclusion of the trial the applicant was sentenced to custody for life and the minimum period to be served before consideration could be given to his possible release into the community was assessed at 27 years (with appropriate credit being given for time spent on remand).
 
2.  The essential issues raised in this appeal are that the minimum term proceeded on the basis of a failure to make sufficient allowance for the youth of the applicant at the time the offence was committed, together with his various problems as identified to that date, and secondly that there is a disparity in the sentences imposed on him and the other two co-accused, and in particular the co-accused Stewart.
 
3.  Stewart was convicted of murder and sentenced to life imprisonment with a specified period of 22 years (less the time spent on remand).  He was born in October 1983 and was a few years older than the applicant.  Maria Chandler was significantly older than both men.  She was sentenced to life imprisonment with a specified period of 17 years (less the time spent on remand).  

4.  It is a feature of this case that in March 2007 the applicant watched a spoof horror film.  In this film one of the scenes showed a woman who was gagged and tied to a tree.  Liquid (intended to represent petrol) was thrown over her.  A masked man then tried to set her alight using matches, but without success and so he turned a flame-thrower on to her.  She was set alight.  The applicant was watching this film with a female friend.  The applicant commented, "Wouldn't it be wicked to do this to someone in real life?"  
 
5.  In sentencing the applicant the judge observed that the film demonstrated that the applicant had been planning such a killing in real life since he had seen the film fifteen months earlier before the actual killing occurred.  

6.  In the real world, Simon Everitt, a young man aged 17, had befriended a young woman called Fiona Statham.  She had had boyfriends who included Stewart and the applicant, as well as Simon Everitt.  The precise sequence of their friendships is not entirely clear, but it looks as though the applicant had been the first of these three, then Everitt, then Stewart, then Everitt again.  Miss Statham admitted that she had cheated on all of them with the others, and indeed that when she had taken up with Simon Everitt she had visited the applicant and had had sexual intercourse with him.  The way in which those relationships developed was plainly a source of indignation for the applicant; but the relationship between him and Stewart and Simon Everitt was also under pressure because the two of them thought that Simon Everitt had been spreading false rumours about them. 

7.  Maria Chandler was a friend of the applicant, Stewart, and Miss Statham.  A meeting was arranged to try to sort out the differences.  The meeting was unsuccessful.  The applicant attacked Simon Everitt and then, having armed himself with a rounders or baseball bat from Chandler's nearby home, pursued Simon Everitt away from the scene.  He was later to boast that he had given him a good kicking.  He was arrested, but later that night he was released on bail.  

8.  On the following evening Simon Everitt was lured to go to a village to the north of Lowestoft.  It looks as though the go-between was Stewart.  That evening Stewart and Chandler set off in her car with the applicant to the pre-arranged destination.  It is significant that a false alibi was already in the process of creation.  All three of them wore clothes which they intended to dispose of as soon as they could after what was to ensue had occurred.  There were other suggestions in the evidence of careful preparation for the destruction of any incriminating evidence.  

9.  On the way the car stopped at a garage.  Chandler took a petrol can from the boot of her car and she and the applicant filled it up.  The applicant paid for the petrol with money provided by Chandler.  The car then drove on to the scene.  

10.  In the meantime Simon Everitt had arrived.  When the three in the car arrived they met up.  There was no negotiation or discussion. Simon Everitt was struck by one or both of the men.  It was calculated violence but, instead of leaving it there, Simon Everitt was then abducted.  He was bundled into the boot of Chandler's car which was driven to a deserted spot in some woods.  The evidence suggested that the applicant had been to this site on an earlier occasion.  

11.  The Crown's case was that Simon Everitt was tortured and then executed.  It is clear that he was tricked into this meeting, clear that he was beaten when he first encountered the others, and equally clear that he was forcibly abducted and driven in the boot of the car to this isolated spot.  When they eventually arrived and he was removed from the boot of the car there is no doubt that Simon Everitt was given to understand that he was going to die and he plainly thought he was going to die.  He prayed.  He was in deep fear.  A mock trial was conducted.  He was tied to a tree.  The mock trial involved interrogation, answers and then a confession to having had sexual intercourse with the girl.  Petrol was then poured into his throat and over him.  That was done by Stewart.  A knife was used to cut his clothing and probably to stab or to cut him, although for reasons which will emerge his body was so badly decomposed by the time that it was found that no positive evidence was available to establish that such injuries had been inflicted (at any rate to the criminal standard).  Then, covered in petrol, he was set alight.
  
12.  The case for the Crown was that all three were involved in the killing.  However, the only source of precisely what happened was Stewart.  His evidence was that the applicant set fire to Everitt.  The flames or the heat caused the rope that was tying him to the tree to melt.  The young man was able to stagger away a short distance before he fell to the ground, where he died.  

13.  Efforts were then made by the applicant, Stewart and Chandler to cover their tracks.  Although they had left scene, the applicant found a spade, returned to the scene and removed the remains of the deceased to a swampy area where they were covered up.  Having done that, he boasted to his friends about what had happened.  He said that the remains would never be found.  

14.  It was Stewart whose conscience caused him trouble.  Everitt was believed to have disappeared.  However, Stewart told his mother that he and the others had taken Everitt, the deceased, to some woods and given him a kicking.  That was only partly true.  Eventually on another occasion Stewart told his mother that the deceased had been killed.  She urged him to hand himself in to the police.  He refused to do so.  With remarkable and commendable courage, she decided that she could not keep this information to herself and she informed the police of what her son had told her.  

15.  The three offenders were arrested.  The applicant denied that he had been present at the scene of this killing.  That remained his defence at trial.  It was rejected by the jury.  The defence of the other two, also rejected by the jury, involved a denial of participation in the murderous enterprise.
 
16.  There was evidence at trial from the applicant himself which has some relevance to the issues of sentencing and the reasons why the judge formed the conclusion that he did.  In his evidence he admitted that he habitually carried two hunting knives.  That was the basis on which the jury was later invited to infer that he had indeed used a knife on the deceased.  But no less significant, he gloried in his evidence that if he had been present the killing would have been "a blood bath"; the victim would have been "mutilated limb by limb" during the interrogation. 

17.  These facts speak for themselves but, given the very severe sentence that was imposed, we must underline that there is clear evidence which demonstrated, as the Crown contend and we accept, that by the time the fatal attack on the deceased was planned the applicant evinced an intense hatred for the deceased.  Following the attack on the deceased the previous day, the applicant had been granted bail.  It would have been sufficient if the violence between them had stopped there.  Instead the killing was organised.  As the narrative shows, it must have been inspired by some of the detail shown in the film which he had seen fifteen months earlier.  The coincidence otherwise would be remarkable.  It is not without importance that the applicant had commented that this would be a "wicked" (ie wonderful) thing to do.  He had not provided the car, nor the petrol can, but he had helped to fill it.  He had been party to the assault on the victim before, party to the abduction, and he was party to the forcible removal of the victim into the woods where he tied him to the tree.  Stewart was involved in all of this.  He helped to tie the victim to the tree and he poured the petrol into the victim's mouth and over him.  They then all left the victim there to die.  

18.  However, it was the applicant who buried the victim in what was intended to be his final resting place, and it was the applicant who boasted about what had happened. 

19.  The judge had presided over this trial.   It was inevitable that, following the jury's verdict, there would be a life sentence.  The information before the judge included a pre-sentence report dated June 2009.  It described a medium to high risk of re-offending and a high risk of harm to the public.  We do not find any of those suggestions in the least surprising.  But as the applicant denied any involvement in this offence, the report was of limited value.
  
20.  A psychiatric report dated September 2008 suggested that the applicant was not suffering from mental illness.  A psychological report, also dated September 2008, in a detailed analysis set out something of the applicant's background and something of the problems from which he suffered.  We do not wish, and nor did Mr Arlidge QC wish to take this out of perspective, but there are a number of features of this report which set out some of the problems.  The  applicant, for example, suffered from Attention Deficit Hyperactivity Disorder ("ADHD").  His IQ was low; he was within the lower fourteen percentile of the population.  He had a number of other problems.  It was suggested that he would benefit from further and subsequent psychiatric treatment.  He was not, however, suffering from a serious mental illness or from any learning impairment.  During the interview with the psychologist he was mentally alert and responsive, able to sustain his attention and to concentrate for a period of two hours.  He had no difficulty in comprehending the questions that were put to him and apparently showed a good understanding of the case alleged against him and of the proceedings in which that case would be examined.  He did not have intellectual difficulties, but his verbal ability was described as "relatively weaker" than his non-verbal activity.  He had no formal qualifications.  By the time of the examination he was estranged from all the members of his family, having left home at the age of 17 and lived independently since then.  An assessment of his personality profile indicated that he was likely to be prone to sudden mood changes "switching from passive to aggressive modes of behaviour and finding it difficult to sustain a stable mood for too long".  The report continued that he was prone to "experiencing feeling dejected and rejected".  The recommendation was that he would be well advised to seek further psychiatric assessment while in custody in respect of the ADHD diagnosis. 

21.  However that material is viewed, it did not, and realistically could not, impinge on the assessment which the judge was required to make and the sentencing decision which had to follow.  The way in which the judge approached the case was to inform the defendants of his sentence and then to set out in considerable detail -- there are 18 pages of transcript -- the very many considerations which impinged on his mind when forming his view.  He noted the film which had been seen, the way in which the applicant's resentment for the deceased had grown and how there were a number of movements by the young woman between the three young men.  He set out the history.  He believed that the defendants had planned the abduction, torture and murder of the deceased.  He pointed out that the plan had included thought being given to preventing the discovery of the body of the deceased and to enable his murderers to avoid arrest, prosecution and conviction.  He was impressed by the fact that the murder as planned was to be carried out in the same way as the murder shown in the film.  He described the way in which the plan unfolded.  He then set out the precise circumstances in which the death occurred.  It is unnecessary and over-harrowing to repeat the details again in this judgment.  The judge identified what he said had led to the unravelling of what was intended to be the perfect murder: the applicant's inability to refrain from boasting about what he had done and Stewart's confession about what had happened; and finally, the courageous and public-spirited action of Stewart's mother in reporting these matters.  

22.  The judge recognised that Stewart eagerly joined in a plan which the applicant had worked out in his own mind.  The judge also recognised that Chandler was happy to join in.  Omitting, without ignoring, the references to the way in which the death of this young man impacted on his father and his mother and the remaining members of the family, we come to the way in which the judge's sentencing remarks culminated.  He plainly had in mind Schedule 21 to the Criminal Justice Act 2003 because at page 13 he identified in terms the appropriate starting points precisely as they are set out in the statute.  He concluded that the whole life tariff did not arise, but he then had to consider the appropriate starting points for each of these cases.  In the end, in the course of his remarks in open court, he omitted to say precisely which paragraph of the Schedule was to apply to each of the defendants.  His sentencing remarks plainly indicate that he had in mind a 30 year minimum starting point for the applicant and a 15 year starting point for the other two defendants.  From those starting points he worked downwards to allow for the applicant's age, and upwards to produce a proper reflection of the aggravating features of each of the other cases.  In case there was any doubt, when he left court, we understand that Mr Khalil QC, who appeared then as he does today on behalf of the Crown, wanted to check that the omission had been accidental and to discover precisely what had happened.  It was made clear to him, and he made it clear to the remaining counsel in the case, that the judge had indeed taken the 30 year starting point for the applicant and the 15 year starting point for the other two defendants. 

23.  In our judgment it is clear on these facts that the judge was entitled to conclude that in the case of the applicant, young as he was, this was a sadistic killing.  We are not in a position to say that it had been planned from the moment when he watched the film fifteen months earlier.  Taking the matter in isolation before us, Mr Arlidge is entitled to argue that that cannot be so; that is a finding too far on the basis of an observation following a film watched fifteen months earlier, given that the immediate trigger of resentment was the way in which the relationships between the girl in question and the other young men had yet to develop.  

24.  The problem for Mr Arlidge is that the judge saw the applicant give his evidence.  He observed him throughout a long trial.  We do not think that we can interfere with his finding, but in any event on the evidence that there is available to us, we can see no reason whatever to disagree with the judge's view that, so far as the applicant is concerned, this was a sadistic killing.  If so, the starting point for the assessment of the minimum term was 30 years.  
25.  So far as the other two are concerned, the judge might, it is true, have formed the same view of Stewart, although improbably in the case of the female defendant, but there was, as he explained in his careful sentencing remarks, insufficient evidence to enable him to say that he was sure that Stewart's participation was sadistic for the purposes of the Schedule.  He said that he had no doubt that the word "sadistic" applied to the applicant but that he was "not convinced" that the same applied to Stewart.  That is close to saying that on a balance of probabilities he might have made such a finding, but that he was not prepared to do so on the basis of the criminal standard.  He acknowledged though, and it was a significantly aggravating feature of a case with a starting point of 15 years, that even if he did not "derive actual pleasure from what happened"; he derived some satisfaction and that he took a full part in it; and he made no effort whatever to do anything to mitigate the cruel death that he had witnessed.  

26.  The judge looked for mitigating features.  He noted the age of the applicant.  That plainly was a feature to be acknowledged not merely because of the terms of the Schedule but because in any event that is an ordinary principle of sentencing which applies to whatever charge a defendant faces.  So far as Stewart was concerned, although the judge recognised that he was older than the applicant, his conclusion was that he was immature and not as old as his years.  He identified the reasons for that conclusion.  He based himself on the way in which Stewart gave evidence before the jury at trial and the assessment of Stewart to be found in the pre-sentence report.  He took the view -- and in our judgment he was entirely justified in doing so -- that it was a matter of mitigation that Stewart had admitted to his mother most of what he had done and that he had been "clearly affected" by what he had done or what he had taken part in soon after it had happened.  The judge recognised that when Stewart's mother went to the police, he (Stewart) denied that what he had said to his mother was true.  He considered the evidence in relation to Miss Chandler but it is obvious from the narrative account of the facts that her role was, although serious enough, much less than that of the applicant.  There was not the slightest suggestion in her case that she had been involved in a sadistic killing.
 
27.  Standing back therefore we return to submissions made by Mr Arlidge: insufficient allowance, it is argued, was made for the applicant's youth and the various aspects of his background which may with the maturing process leaded to some improvement.  The judge plainly had in mind the fact of the applicant's youth.  He said so in terms.  We cannot think of any other reason why he reduced the appropriate starting point of 30 years to 27 years.  That fact in our judgment was plainly reflected in the sentence.  We do not think on the evidence available to us that any further discount would have been appropriate.  

28.  Mr Arlidge's second submission relates to the distinction in the sentences imposed on the applicant and the other two defendants but for the reasons which are already apparent in the course of this judgment, Stewart in particular, and not in reality Chandler.  He submits that the distinctions between these two were not justified and that the 22 year term on Stewart presented too great a disparity when set against the 27 year term ordered in the case of the applicant.  

29.  We do not find that the culpability of each of these two men was identical, or (as Mr Arlidge put it) virtually identical.  There is no doubt that Stewart was deeply involved in this offence.  Let us stand back and assume for a moment that Mr Arlidge is right.  That merely leads to the conclusion that Stewart may have been fortunate that the minimum term imposed in his case was not somewhat longer, though not as long as the term imposed on the applicant, if only because the judge could not find himself satisfied about the sadistic element which he found established in relation to the applicant.  Quite apart from the fact that the judge was not satisfied as to the sadistic element of the case, there is a further distinction which is that Stewart had indeed shown himself in the immediate aftermath of the horror of the incident that night sufficiently affected by what had happened to make a confession to his mother of his involvement in this crime.  The judge observed all these three defendants in the trial.  In the result, having  approached the matter on the basis of what would happen if Mr Arlidge were right about the excessive distinction between Stewart and the applicant, our conclusion is that the judge was entitled to recognise the difference between these men and their criminality. 

30.  In the end, despite the characteristic persuasiveness with which Mr Arlidge advanced submissions after what must have been a profoundly difficult trial (at any rate for those representing the applicant) we cannot see that the applicant has the slightest basis for complaint at the minimum term ordered by the judge.  In those circumstances this application will be refused.  
 
31.  Mr Arlidge, do you have a representation order to today's purposes?

MR ARLIDGE:  My Lord, no.

THE LORD CHIEF JUSTICE:  We think you should.

MR ARLIDGE:  I am obliged.

THE LORD CHIEF JUSTICE:  Very well.