Last & Ors v R

When fixing a murder minimum term, the court must use the statutory starting point and assess all aggravating and mitigating features. For a pre-18 December 2003 offence, it must also apply the transitional protection in Schedule 22.

A guilty plea is considered after the unreduced minimum term has been assessed. In murder cases, the applicable Guideline permits a substantially smaller reduction than for a determinate sentence: at most one sixth, subject to a five-year cap, for a plea at the first reasonable opportunity, and ordinarily no more than 5% for a late plea.

A later Guideline may assist sentencing for an earlier case if it does not alter the law and causes no unfairness. Criminal Justice Act 2003 Schedule 21 and the Guideline guide, but do not remove, judicial discretion.

Five matters concerning minimum terms for murder were heard together. Emma Last, Sarah Crane, and Edward and James Quillan appealed against minimum terms imposed after guilty pleas. The Solicitor General referred Lee David Holbrook’s minimum term as unduly lenient.

The offences in the cases of Last, Crane and Holbrook pre-dated the commencement of the Criminal Justice Act 2003. Their minimum terms therefore required consideration of both Schedules 21 and 22. The Quillan brothers committed their offence after the Act came into force, so only Schedule 21 applied.

The common issue was the proper allowance for a guilty plea when fixing the punitive minimum term for a mandatory life sentence.

1. The court allowed Emma Last’s appeal in part. It dismissed Sarah Crane’s appeal and both Quillan appeals. It granted the Solicitor General leave to refer Holbrook’s sentence and increased his minimum term to 20 years.

2. The court reaffirmed that the sentencing exercise begins with the applicable starting point under Criminal Justice Act 2003 Schedule 21. The court must then consider aggravating and mitigating features and review the result to ensure that the minimum term properly reflects the seriousness of the murder. For offences committed before 18 December 2003, it must additionally apply Schedule 22, paragraph 10, so that the term does not exceed the likely pre-December 2002 minimum term.

3. A guilty plea reduction is applied to the minimum term that would otherwise have been imposed. For murder, the applicable Guideline allows a maximum reduction of one sixth, capped at five years, where the plea was indicated at the first reasonable opportunity. A plea at the door of the court normally attracts no more than 5%. The reduction reflects the benefits of avoiding trial and is distinct from remorse and other mitigation.

4. The Guideline could properly be considered although it came into force after the sentences under appeal. It did not alter the statutory sentencing power; it assisted the court in exercising that power. A court need only have regard to the Guideline and to Schedule 21. It may depart from either if it gives valid reasons, subject to avoiding unfair prejudice to an offender who had been led to expect a greater reduction.

5. Emma Last’s unreduced minimum term could properly reflect the gravity of a planned and cruel murder. However, her prompt guilty plea required the full reduction. The resulting disparity with a co-offender’s term made her term excessive. A disparity does not itself entitle an offender to a reduction, but an appellate court must decide whether it makes the challenged sentence unjust from the perspectives of both the offender and the public. Her minimum term was substituted with 15 years and 97 days after custody credit.

6. The court upheld Crane’s term because the aggravating features, including pursuing the victim while armed and her previous robbery conviction, justified it despite mitigating features and a late plea. It held that the Quillans’ murder for gain in the victim’s home was one of particularly high seriousness and attracted the 30-year statutory starting point. The six-year difference between the brothers’ terms was justified by their ages and records.

• Court of Appeal (Criminal Division) — Emma Last’s appeal was allowed in part; Sarah Crane’s and Edward and James Quillan’s appeals were dismissed. The Solicitor General’s reference of Lee David Holbrook’s sentence was allowed and his minimum term was increased.
• Crown Court — Minimum terms had been imposed at Chelmsford, Kingston, Plymouth and Preston following convictions for murder and guilty pleas.