Coleman & Anor v R

A sentencing court should not formulate a rigid rule for correcting disparity between co-offenders’ sentences. It must assess, with flexibility and sensitivity to the particular facts, whether the disparity produces injustice. A later and substantially lower sentence imposed after a co-offender’s escape and a prosecutorial evidential difficulty did not make proper murder minimum terms unjust.

The absence of an intention to kill is a mitigating factor when fixing a murder minimum term. A term must not proceed on a finding that the offender intended to kill where the conviction rested instead on participation in serious joint violence. The weight of that mitigation depends on the overall criminal conduct and culpability.

Coleman and Petch were convicted of murder at Teesside Crown Court in 2002, together with serious violent offences. The trial judge recommended minimum terms of 14 years for Coleman and 20 years for Petch. Those recommendations were endorsed by the Lord Chief Justice.

After the principal offender, Jonathan Crossling, returned from Spain, the prosecution accepted his plea to manslaughter because of identification difficulties. He received nine years’ imprisonment. A previous challenge to the safety of Coleman’s and Petch’s convictions based on that development had failed: [2005] EWCA Crim 1183.

Openshaw J made minimum-term orders under the Criminal Justice Act 2003. Coleman appealed and Petch sought leave to appeal. They contended that the disparity with Crossling’s sentence was unjust and that their terms gave insufficient weight to their lack of an intention to kill.

1. The court granted Petch leave to appeal and allowed both appeals to the limited extent of reducing the minimum terms. It rejected the disparity ground.

2. There was no useful fixed principle governing intervention merely because a co-offender had received a lower sentence. The assessment required flexibility and close attention to the circumstances. Although Crossling had been regarded as the principal offender, his later manslaughter sentence resulted from his escape and the resulting evidential difficulty. Coleman and Petch had properly been convicted of murder. It was not unjust to preserve otherwise appropriate minimum terms, and Crossling’s good fortune should not benefit them.

3. The absence of an intention to kill was, however, a mitigating factor, as recognised in Harvey Sullivan [2004] EWCA Crim 1762. The convictions could not justify fixing the minimum terms on the basis that either appellant intended to kill. Their joint venture involved obtaining drugs by whatever means, including serious violence.

4. The mitigation carried reduced weight because of the ruthlessness and determination of the conduct. Petch’s total criminality included four wounding-with-intent convictions and a relevant previous conviction. Nevertheless, the existing terms did not adequately recognise the absence of an intention to kill. Coleman’s minimum term was reduced from 14 years to 12 years, less seven months and 13 days on remand. Petch’s was reduced from 20 years to 18 years, less 217 days on remand.

• Court of Appeal (Criminal Division) — allowed Coleman’s appeal and, after granting leave, Petch’s appeal against the minimum-term orders: [2007] EWCA Crim 2318.

• High Court (Openshaw J) — made the challenged minimum-term orders pursuant to section 276 and Schedule 22 of the Criminal Justice Act 2003.

• Court of Appeal (Criminal Division) — rejected the appellants’ earlier challenge to the safety of their convictions arising from Crossling’s later manslaughter conviction: [2005] EWCA Crim 1183.

• Teesside Crown Court (Turner J) — convicted both appellants of murder on 28 March 2002 and recommended minimum terms of 14 years for Coleman and 20 years for Petch.