Attorney General Reference No. 116 of 2009

In fixing a minimum term for murder under Criminal Justice Act 2003, Schedule 21, the starting point must reflect the full cumulative gravity of the aggravating features. A premeditated and sustained killing, involving entry into the victim’s home at night, deliberate use and reloading of a lethal weapon, an attempt to divert police attention, and execution in the presence of the victim’s children, may require a starting point substantially above 30 years.

Proper mitigation, including depressive illness and a guilty plea, must still receive appropriate credit. An appellate court may increase an unduly lenient minimum term while preserving discounts which were correctly allowed.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient the minimum term imposed on John McFarlane for murder.

At the Central Criminal Court, Bean J had imposed the mandatory sentence of life imprisonment with a minimum term of 20 years. The judge treated the murder as one of particularly high seriousness under Schedule 21 to the Criminal Justice Act 2003, adopted a 30-year starting point, and reduced it for the offender’s depressive illness and guilty plea.

The reference concerned whether the 30-year starting point, and consequently the 20-year minimum term, adequately reflected the gravity of the murder.

1. Leave was granted and the Attorney General’s reference succeeded. The minimum term of 20 years was unduly lenient and was replaced by a minimum term of 30 years.
2. The judge’s assessment of a 30-year starting point under Schedule 21 to the Criminal Justice Act 2003 was too low. It did not sufficiently reflect aggravating features additional to the use of a gun and the fatal shooting.
3. The murder was carefully planned and exceptionally grave. The offender armed himself with an axe and a lethal bolt gun, forced entry to the victim’s home at night, interfered with the lighting, and arranged a false report to divert police attention. He made a sustained attack, pursued the victim outside, reloaded the weapon twice, and deliberately shot her while she was helpless.
4. The presence and involvement of the victim’s children was a distinctive and weighty aggravating feature. They witnessed their mother’s killing, attempted to help her, and were brushed aside. The court held that this ordeal and its enduring consequences took the case well beyond a 30-year starting point.
5. The court did not disturb the reductions for the offender’s depressive illness and guilty plea. Treating those allowances compendiously as a 10-year reduction, the proper starting point was 40 years. The resulting minimum term was therefore 30 years.

• Court of Appeal (Criminal Division): On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court granted leave and increased the minimum term from 20 to 30 years.
• Central Criminal Court: Bean J imposed the mandatory sentence of life imprisonment for murder with a minimum term of 20 years.