Richardson, R. v

Under Criminal Justice Act 2003, Schedule 21 requires a structured sentencing exercise. The court must select the statutory starting point, weigh aggravating and mitigating circumstances, and avoid double counting.

The use of a knife does not automatically aggravate a murder. A knife picked up during a quarrel, or lawfully carried, will not ordinarily add aggravation merely because it was used. However, unlawful public possession of a knife may aggravate the offence where injury or death follows. The weight given to that factor depends on all the circumstances, including the nature and purpose of the possession.

An appeal was brought against a minimum term of 14 years and six months imposed for murder following a guilty plea at Newcastle Crown Court. HHJ Milford QC adopted the 15-year starting point under Schedule 21 to the Criminal Justice Act 2003, then treated the unlawful carrying of a knife, the victim's vulnerability, and a previous conviction for affray as aggravating factors.

The offender had approached the victim to sell stolen goods. During an argument he produced a knife and inflicted the fatal neck wound. The accepted basis of plea stated that he had momentarily lost his temper, used minimal force, and had not intended to kill.

The central issue was whether treating the unlawful possession of the knife as aggravation amounted to impermissible double counting, and whether the minimum term should be reduced.

1. Appeal dismissed. The judge was entitled to retain the 15-year starting point and to fix a minimum term of 14 years and six months after credit for time spent in custody.
2. Schedule 21 to the Criminal Justice Act 2003 requires a structured two-stage exercise. The sentencer selects the applicable starting point and then adjusts it for aggravating and mitigating circumstances. A central safeguard is that a feature already reflected in the starting point must not be counted again.
3. The judge had not double counted the knife. The aggravating feature was not its use in the killing, since use of a knife may simply be part of what makes the offence murder. Nor will a knife necessarily aggravate where it is picked up during a quarrel or lawfully carried. The aggravating feature here was its unlawful possession in a public place, even though the accepted basis of plea said it had been carried for defensive purposes.
4. Unlawful public carriage of a knife which is then available for use may properly attract deterrent sentencing consequences. The court treated Pollin [1977] 2 Cr App R (S) 356, R v Peters [2005] EWCA Crim 605, and Attorney General’s Reference No 33 of 1996 [1997] Cr App R(S) 10 as supporting that conclusion. Differences in the type of knife, the circumstances of possession, and the offender’s purpose affect the degree of aggravation, not the court’s power to treat unlawful possession as aggravating.
5. The court doubted that the victim was particularly vulnerable because of age or disability within paragraph 10(b) of Schedule 21. That did not undermine the sentence. The murder arose from persistent, aggressive and criminal solicitation to sell stolen property in public, which was a proper aggravating circumstance although not specifically listed in paragraph 10. The previous affray conviction was capable of aggravating the offence, but had played little part in the judge’s conclusion. The overall balance was not one with which the appellate court should interfere.

• Court of Appeal (Criminal Division) Dismissed the appeal and upheld the minimum term: [2005] EWCA Crim 1408.
• Newcastle Crown Court HHJ Milford QC imposed a minimum term of 14 years and six months following a guilty plea to murder.