Kelly v R.

Under Criminal Justice Act 2003, Schedule 21 provides starting points rather than inflexible sentencing compartments. The judge must make an individual assessment of aggravating and mitigating features.

Paragraph 5A ordinarily sets a 25-year starting point only where an adult offender took a knife or other weapon to the scene, with the required intention, and used it in the murder. Moving a knife from one room to another within the same home does not meet that requirement, even where a locked internal door is forced. The provision is not confined to public-place killings, and its application depends on the particular facts. In joint-enterprise cases, liability for the starting point may depend on whether an offender was party to taking the weapon to the scene.

Eight linked sentence appeals or applications followed convictions for murder involving knives, and one conviction for conspiracy to pervert the course of justice. The court considered the new paragraph 5A of Schedule 21 to the Criminal Justice Act 2003, inserted by the Criminal Justice Act 2003 (Mandatory Life Sentence: Determination of Minimum Term) (Order) 2010.

The applicants challenged minimum terms imposed in the Crown Courts at Guildford, Norwich, the Central Criminal Court and Mold. The central issue was when a knife had been taken to the scene so as normally to require the 25-year starting point, and how that starting point should operate with individual aggravating and mitigating features.

1. Appeal dismissed; applications for leave to appeal against sentence refused. Schedule 21 requires an individual sentencing assessment. Its listed categories identify normal starting points, not fixed compartments. The word normally and the statutory focus on a starting point preserve the judge’s duty to reach a just result in light of all aggravating and mitigating features.

2. Paragraph 5A is a further general principle for the purposes of section 269(5). It does not apply to every murder involving a knife or weapon. It requires that the adult offender took the weapon to the scene with the specified intention and then used it in the murder. A knife may be taken to the scene although the murder occurs at a home; the provision is not restricted to knives carried in public. Conversely, a knife taken from the kitchen to another room in the same home is not taken to the scene, even if the offender forced a locked internal door.

3. Accordingly, paragraph 5A did not apply to Kelly v R., because Kelly took the knife from the kitchen to the bathroom in the same maisonette. The 25-year minimum term was nevertheless fully justified by his intent to kill, his record, the forced entry, the victim’s agonising death, and the absence of mitigation. By contrast, paragraph 5A applied to Bowers, who armed himself before leaving his home to confront the victim outside, and to Singh, who left his bedsit with a knife and carried it to the factory floor.

4. In the joint-enterprise murder, paragraph 5A could apply to Harding because the judge was entitled to find that he knew Roberts had brought a combat knife to the bungalow. It was immaterial that Harding, rather than Roberts, used that knife. Sentencing judges must make the factual findings needed to select the starting point and must avoid double counting knife use already reflected in paragraph 5A.

5. For the 16-year-old offender, the 12-year starting point under paragraph 7 remained applicable, but adult-category features could aggravate the murder. The judge also had to assess the offender’s maturity, insight and understanding. The 18-year minimum term was justified on the facts. The four-year sentence for conspiracy to pervert the course of justice was also upheld.

• Court of Appeal (Criminal Division): Singh’s appeal against sentence was dismissed. The applications for leave to appeal against sentence by Kelly, Bowers, Harding, Roberts, Ashleigh Robinson, Hollie Robinson and Barr were refused.
• Crown Court at Guildford: Kelly was convicted of murder and received life imprisonment with a 25-year minimum term.
• Crown Court at Norwich: Bowers was convicted of murder and received life imprisonment with a 20-year minimum term.
• Central Criminal Court: Singh was convicted of murder and received life imprisonment with a 20-year minimum term.
• Crown Court at Mold: Harding, Ashleigh Robinson, Roberts and Hollie Robinson were convicted of murder. Barr was sentenced for conspiracy to pervert the course of justice.