Blue, R v

A sentencing judge who has heard the trial may determine the factual basis for sentence from the evidence. A racial element may aggravate a murder minimum term even where it does not justify the higher starting point under Criminal Justice Act 2003, Schedule 21.

The weight of mitigation is fact-sensitive. In a deliberate chest stabbing with a large knife, lack of intent to kill may carry little weight where there was intent to cause grievous bodily harm. Lack of premeditation and provocation may also carry little weight where the offender leaves an earlier confrontation, obtains a knife and returns to use it punitively. Schedule 21 aggravating and mitigating circumstances are examples, not an exhaustive code.

The appellant was convicted of murder at Mold Crown Court after stabbing the victim four times with a carving knife. Following an initial confrontation at a service station, the appellant returned to nearby premises, collected the knife despite a warning, and returned to the scene. The jury rejected his case that he acted in self-defence and panic.

The trial judge imposed life imprisonment and set a minimum term of 17 years, less time on remand. The judge treated a racial element as aggravating and treated lack of intent to kill as mitigating. The appellant appealed the minimum-term determination, contending that the racial finding lacked an evidential basis and that further mitigation had not been properly weighed.

1. Appeal dismissed. The minimum term of 17 years, less time on remand, was not manifestly excessive.

2. A judge who has heard the evidence at trial is entitled to form an independent conclusion about the factual basis for sentence. There was sufficient evidence for the judge to find that the differing national backgrounds of those involved played a part in the confrontation. That finding could aggravate the sentence, although the racial element was not of a gravity that justified moving from the 15-year starting point to the 30-year starting point under paragraph 5(2)(g) of Schedule 21 to the Criminal Justice Act 2003.

3. The distinction between an intention to kill and an intention to cause grievous bodily harm carried little mitigating weight on these facts. The fatal chest wound penetrated the heart and was inflicted with a large knife. The court referred to R v Peters [2005] 2 Cr App R( S) 101 on the possible weight of that factor.

4. Nor did lack of premeditation or the victim's earlier aggressive conduct materially reduce the term. After the first violence had ended, the appellant went to obtain a knife, ignored a warning, and returned with it. The judge was entitled to regard this as punitive rather than defensive conduct.

5. The sentencing judge had a wide discretion within Schedule 21. Paragraphs 10 and 11 provide examples of aggravating and mitigating circumstances only. Concise sentencing remarks were sufficient, and the judge could also have referred expressly to the appellant's prior convictions for violence.

• Court of Appeal (Criminal Division) — dismissed the appeal against the minimum-term determination: [2008] EWCA Crim 769.
• Crown Court at Mold — convicted the appellant of murder and imposed life imprisonment with a minimum term of 17 years, less time on remand.