Cole, R v

Schedule 21 to the Criminal Justice Act 2003 provides general guidance for fixing a minimum term for murder. Its starting points and listed factors must not produce a mechanistic or arithmetical sentencing exercise. Whether the starting point is 15 or 30 years, the court must assess the offence’s seriousness on its particular facts and may properly impose a term materially distant from that starting point. Where the gravity of the offence is driven by other aggravating features, it may be unnecessary to resolve whether the murder falls within a specified example of murder for gain.

Robert Cole was convicted at Manchester Crown Court of the murder of a 76-year-old, frail and confused man whom he had previously defrauded. After failing to obtain money from the victim, Cole subjected him to a sustained and violent attack at the victim’s home, disconnected the telephone and took the victim’s car.

The trial judge imposed the mandatory life sentence and fixed an 18-year minimum term. The Attorney General obtained leave under section 36 of the Criminal Justice Act 1988 to refer that term as unduly lenient. The central issue was whether the judge had properly assessed seriousness under Schedule 21 to the Criminal Justice Act 2003, including whether the case required a 30-year starting point as a murder done for gain.

The Attorney General’s reference was allowed. The minimum term of 18 years was unduly lenient and was quashed. It was replaced by a minimum term of 22 years, with credit for time spent on remand.

1. Schedule 21 to the Criminal Justice Act 2003 gives general guidance for assessing seriousness. The 30-year starting point applies where the court considers the seriousness particularly high. The examples in paragraph 5(2) will normally lead to that conclusion, but they do not require a mechanical or arithmetical approach.
2. The sentencing court must make an overall assessment of seriousness on the facts of the individual case. That assessment remains necessary whether the starting point is 15 or 30 years, and it may justify a minimum term some distance from the selected starting point.
3. It was unnecessary to decide whether the violence was inflicted while trying to obtain money or after the attempt had failed. That issue had little effect on the offence’s seriousness when compared with the substantial aggravating features.
4. The victim was elderly, vulnerable and previously exploited. He was brutally beaten in his own home, suffered for a prolonged period, and was left unable to summon help after the telephone was disconnected. The absence of premeditation and of a proved intent to kill were mitigating factors of some weight, but they did not adequately reduce the gravity of the offence.

The original term did not properly reflect the seriousness of the murder. A 22-year minimum term was appropriate.

• Court of Appeal (Criminal Division): Allowed the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, held the minimum term unduly lenient, and substituted 22 years for 18 years.
• Crown Court at Manchester: Convicted the offender of murder and imposed life imprisonment with an 18-year minimum term.