No. 2018/01090/A3
Neutral Citation Number: [2018] EWCA Crim 1336
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Wednesday  9th  May  2018

B e f o r e:

LORD  JUSTICE  TREACY

MR  JUSTICE  EDIS

and

HER  HONOUR  JUDGE  MUNRO  QC
(Sitting as a Judge of the Court of Appeal Criminal Division)

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ATTORNEY  GENERAL'S  REFERENCE

UNDER  SECTION  36  OF

THE  CRIMINAL  JUSTICE  ACT  1988

R E G I N A
 
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OWEN  PETER  SCOTT

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Mr R Buckland QC (Solicitor General) and Mr J Smith appeared to make the Application

Miss D Colborne QC appeared on behalf of the Offender 

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J U D G M E N T
Wednesday  9th  May  2018 

LORD JUSTICE TREACY:
1.   This is an application by the Solicitor General, under section 36 of the Criminal Justice Act 1988, for leave to refer to this court a sentence he considers to be unduly lenient.  We grant leave.

2.  On 29th January 2018, in the Crown Court at Sheffield, the offender pleaded guilty to four counts of attempted murder and one count of dangerous driving.  He had previously, on 22nd September 2017, entered not guilty pleas to all counts.  Guilty pleas were only entered on the day of trial.  However, it is right to note that those guilty pleas had been notified on the last working day before the trial was due to take place, so that no witnesses actually attended court for the purpose of giving evidence.

3.  Sentencing took place on 15th February 2018.  For the four attempted murder counts, a sentence of life imprisonment was imposed, with a minimum term of fourteen years (less time spent in custody on remand).  That sentence was to be served concurrently on each count of attempted murder.  It is expressed as thirteen years and 188 days.  

4.  On the count alleging dangerous driving the sentence passed in open court was one of two years' imprisonment, to run concurrently.  

5.  The judge had indicated an intention to grant a reduction of twenty per cent for the offence of dangerous driving to represent a guilty plea, without making express its application to that charge.  Following the hearing, the matter was raised with the judge in chambers through her clerk.  She confirmed her intention to pass a term of nineteen months' imprisonment on that count, but did not require the matter to be mentioned in open court.  That period is recorded as the sentence in the Crown Court record.  There is no issue that that was what was intended and understood by the parties, and there is no application of any sort before this court.  Nonetheless, good practice required that the matter be dealt with in open court, rather than less formally, even if it did not affect the overall period to be served. 

6.  The facts of this case are truly shocking.  The victims are four small children of whom the offender is the father.  At the time of the incident they were aged nine months, 21 months and seven years.  The fourth victim was his stepdaughter, who was aged eight at the time.

7.   In December 2016 the offender and his former partner (the children's mother) split up and moved on to new relationships.  The mother was the primary carer for the children, although the offender had access and occasionally cared for them.

8.  In the weeks prior to the offence, the offender had stopped attending work.  Those close to him noticed a change in his behaviour.  He became convinced that his new partner was having an affair and told others that people were going to harm his children.  Over the weekend of 19th/20th August he argued with his partner and behaved strangely.  On 20th August he was due to care for his two sons and again behaved irrationally.  He told their mother of his concerns for their safety.  He ended up taking her and the two boys to a nearby hotel.  He repeated that people were after him.  On the following day he seemed calm and collected and he apologised for his behaviour on the previous night.  With the ex-partner's consent, he collected all four children with a view to visiting his mother or going shopping.  There seems to have been at least an element of planning and abduction in the way he then behaved thereafter.

9.  Over the following day and a half, the offender travelled with the children from Southampton to the Isle of Wight and then to Liverpool and Greater Manchester before being captured on CCTV in the Huddersfield area at about 9.30pm on 22nd August 2017.  Shortly after midnight on 23rd August, whilst still in the same general area, he drove his vehicle at over 90mph and, making no attempt to brake, he deliberately collided with the boundary wall of a public house.  This was a deliberate attempt to kill all four children.

10.  In the intervening two and a half hour period he had attacked each of the children with a hammer.  He struck them about the head on a number of occasions and caused very serious injury to each of them.  

11.  After the collision the offender was found by the car.  He had not sustained any serious injury, but the children had suffered further injuries.  When tested at the roadside, the offender was negative for alcohol, but positive for cocaine.  The hammer was found in the front footwell of the car.  

12.  "A", aged 8, suffered four separate depressed fractures of the skull caused by the hammer.  There was bleeding in and around the brain.  She sustained pelvic, wrist and hand fractures, a laceration to the pancreas and bleeding into the gut.  By the time of sentence she was still seriously affected.  She had become angry, emotional and lacking in confidence.  She had regular nightmares and blackouts.  She also suffered from a loss of balance which caused her to fall from time to time.  She requires extra help at school.  It is too early to say whether she will suffer specific cognitive defects.  She is, however, at a high risk of difficulties affecting executive functioning.  Her speech has been affected.  She suffers from headaches and mood swings.  There is cognitive and behavioural impairment and a high risk that they will persist.  She is at a higher risk of developing epilepsy.

13.  "L", aged 7, suffered five separate depressed skull fractures which cause bleeding of the brain.  The skull bone had been shattered into multiple fragments.  She was still in hospital at the time of sentence, having by then undergone thirteen operations.  In addition, she had sustained fractures of a rib and the left femur, as well as injuries to her spleen and kidney.  She is partly paralysed and has lost much of her left field of vision.  She has been left with a significant learning difficulty and extremely poor memory and concentration.  She will suffer from life-long disability and will be wheelchair dependent for the rest of her life.  She will not be able to use her left arm and will have limited use of her right hand.  She will suffer from speech and language difficulties.  Her life expectancy has been reduced by fifteen to twenty per cent.

14.  "L", aged 21 months, suffered two depressed skull fractures which also involved an injury to the brain.  His speech has been affected and he will need to see a speech therapist.  He was left with a hole in his skull, which it is hoped will eventually heal.  It is too early for a full neuro-psychological assessment, but those treating him consider that he now suffers from significant cognitive impairment, with a risk of further cognitive difficulties.  Some of those may not become apparent until his teenage years.

15.  "T", aged nine months, suffered a complex comminuted fracture of the left frontal part of the skull, with associated bleeding and bruising of the brain.  He is missing a large part of the left side of his skull and is scarred.  He will need surgery to deal with the skull defect, as at present his frontal lobe protrudes through the defect.  There has not yet been a neuro-psychological assessment.  At present there no evidence of intellectual impairment, although there is a risk of cognitive and behavioural impairments which could prevent significant difficulties in the future and which may not become apparent until later in his teenage years.

16.  Those matters are described in medical reports and also in a Victim Person Statement from the children's mother.  The mother herself has been seriously emotionally affected by what has happened.

17.  The Solicitor General has submitted that the sentence imposed was unduly lenient.  He argued that the sentence failed to take proper account of the nature of the offences, together with their multiple aggravating features.  In particular, emphasis was placed on the number of victims, the consequences of the offending, the vulnerability and age of the victims and the gross breach of trust involved.  It was submitted that, in assessing the minimum term, the judge should have gone beyond the highest levels set out in the Sentencing Guidelines Council's Attempted Murder Definitive Guideline.  In addition, it was submitted that the judge erred in affording the offender a twenty per cent reduction in the notional determinate sentence so as to reflect the guilty pleas.

18.  On behalf of the offender, Miss Colborne QC argued that the sentence passed was not unduly lenient.  The judge had been well-placed to assess the appropriate sentence, having considered detailed information.  It was argued that the Reference had failed to take sufficient account of mitigating features.  First, the offender was suffering from a mental disorder at the time of the commission of the offence.  Reliance in this respect was placed upon the opinion of Dr Mendelson, a Consultant Psychiatrist, whose view was that the offender was probably suffering from a drug-induced psychosis which would have impaired his facility for rational judgment and self-control.  There was no history of psychiatric problems or signs of mental illness, and the offender's cognitive function was normal.  However, there had been long-term cannabis and cocaine abuse which had continued up to the time of the offending.  Dr Mendelson's view was that the offender had suffered from an acute drug-induced psychosis so that he became convinced that there was a gang who wanted to harm him and his children.  After his arrest and his remand in custody, the offender had made a rapid recovery.  Miss Colborne submitted that his conduct was at odds with other evidence as to his attitude and conduct towards his children and their bond with him.

19.  A second factor relied on was the plea of guilty.  Ordinarily, credit of ten per cent would be due, but the judge had accepted counsel's submissions that the gravity of the offences and shock required the offender to take time to acknowledge his wrongdoing and for appropriate reports to be obtained.  In addition, it was submitted that the offender was now remorseful, having recognised what he had done.

20.  When interviewed after his arrest, the offender denied driving into the wall of the public house deliberately or even dangerously.  He denied any intention to harm the children and he denied hitting the children with a hammer.  He maintained that stance during the course of interviews with Dr Mendelson.  Accordingly, in his final report of 18th December 2017, Dr Mendelson records that the offender remains adamant that he did not assault the children or in any way intentionally try to harm them.

21.  We first consider the attempted murder guideline.  This case would, if it had resulted in death, have fallen within paragraph 4 or 5 of Schedule 21 to the Criminal Justice Act 2003.  Thus, for the purposes of the guideline, the case falls into level 1 (the top level).  Within that level a case involving serious and long-term physical or psychological harm would start with 30 years' custody and have a range of 27 to 35 years.  Those figures of course relate to determinate terms, not minimum terms where, as here, a life sentence has been imposed.

22.  The victims in this case were four very young children.  They were particularly vulnerable because of their age and circumstances.  Each of the four victims has suffered dreadful injuries with long-term consequences as a result of the hammer attack which preceded the final collision.  There was a gross breach of trust in relation to each of them.  There had been an extremely serious attack on each of them with a deadly weapon.  It had been committed in the presence of their siblings and had resulted in the serious injuries and suffering already described.  It is clear that some of the children were old enough to understand what the offender was doing whilst those attacks were taking place.  Those are all very significant aggravating factors which must increase the level of sentence.  Paragraph 15 of the guideline states that the particular circumstances of offending may make it appropriate for a sentence, prior to taking account of the mitigation and the guilty plea, to fall outside the range.  At page 7 the guideline indicates that exceptionally serious aggravating features will move the case up to the next level.  There is, of course, no level beyond level 1 in the guideline.  Therefore, the guideline must be read as permitting the court to go beyond the range set in level 1.

23.  In Attorney General's Reference No 123 of 2014 (R v Spence) [2015] 1 Cr App R(S) 67, this court indicated by its disposal of that case that where the offending is sufficiently serious, sentences for attempted murder outside the scope of the guideline are appropriate.  The guideline is premised on sentences appropriate to a first time offender who has contested the case.  

24.  This offender is 29 years old.  He has no previous convictions, although there are cautions for matters which we do not think materially affect the position.

25.  In passing sentence the judge below arrived at a figure of 35 years as a determinate sentence, before giving credit for the guilty plea.  That represented her assessment of all the circumstances, including aggravation and mitigation, up to that point.  That figure is at the top of the available sentencing range for level 1.  It must mean that the judge went above level 1 before making allowance for the guilty plea.  

26.  We next turn to consider the mitigation.  Mental disorder can be a factor which lowers an offender's degree of culpability.  However, the evidence in this case showed that the offender's state was an acute drug-induced psychosis as a result of voluntary consumption of unlawful drugs.  In these circumstances, where an offender's state arises as a result of voluntary abuse of drugs, little or no weight should be attached to this factor.  It cannot significantly diminish the offender's culpability.  

27.  As to credit for a guilty plea, the Sentencing Council's guideline indicates a maximum of ten per cent reduction for a guilty plea tendered on the day of trial.  The offender's guilty pleas were notified immediately before that stage.  We are not persuaded that the reasons given by the judge for granting a reduction of twenty per cent are justified.  We note from Dr Mendelson's report of 11th September 2017 that the offender was fit to plead, able to understand the charges against him, able to instruct lawyers and capable of giving evidence if need be.  Dr Mendelson's assessment was that the relatively transient psychosis from which the offender was suffering would not have significantly have impaired his ability to know the nature and quality of his acts.  He said that if the offender had intended to assault the children, he would have known that this would be legally wrong.  He would have been capable of forming an intent.

28.  The assessment of 11th September was about one month after the commission of these offences and more than four months prior to the guilty pleas being tendered.  A partial defence of diminished responsibility is not available for an offence of attempted murder.  Further psychiatric reports after September 2017 could only go to the issue of mitigation and disposal of the case after a guilty plea.  We further note that the offender continued to deny any criminal responsibility for what had happened in interviews which succeeded the September interview.

29.  For these reasons we do not consider that there was any justification for granting almost double the level of reduction for the offender's late guilty pleas.  We consider that ten per cent is the correct level of reduction.

30.  Stepping back and examining all the circumstances, it is our clear conclusion that this was a case where the case should have gone significantly beyond the upper range of the guideline.  In our judgment the facts of this case demonstrate offending of particular gravity which justifies this course.  There is an accumulation of significantly aggravating factors.  Four young lives have been grievously affected.  Their mother's life has been blighted.  The level of harm which has been caused is very high indeed.  Culpability is also very high: there was an intention to kill; there was breach of trust; and there were the earlier attacks with the hammer to be taken into account.

31.  In our judgment a determinate term of at least 48 years should have been reached after giving ten per cent credit for the guilty pleas.  When that figure is halved in order to give the minimum term equivalent, the appropriate figure is 24 years.

32.  It follows from that analysis that the sentence imposed below was unduly lenient.  We give effect to our conclusion by substituting on each of counts 1 to 4 a sentence of life imprisonment with a minimum term of 24 years (less 177 days spent in custody on remand).  That results in concurrent terms of 23 years and 188 days.  For the avoidance of doubt, we stress that this is a minimum term which must expire before the Parole Board can consider whether it is safe for the offender to be released.

33.  There has been no application made by the Solicitor General in relation to the two year period of disqualification imposed below, adjusted to take account of sections 35A and B of the Road Traffic Offenders Act 1988.  As a result of our decision, that period will now be a period of two years, plus an overall adjustment of 24 years, giving a total of 26 years' disqualification.  The requirement to take an extended retest remains in place.