Thompson, Re Attorney-General's Reference No 103 of 2011

For murder sentencing under Criminal Justice Act 2003 Schedule 21, the premeditation inherent in paragraph 5A does not exhaust a significant degree of planning or premeditation that may aggravate the sentence under paragraph 10. A court should therefore increase the starting point where significant premeditation exceeds that inherent element.

However, an error in selecting the starting point does not make the final minimum term unduly lenient if the necessary increase would be modest and the sentencing judge was entitled to make the reductions allowed for a guilty plea, learning difficulties and other mitigation.

The offender pleaded guilty to murder after a premeditated public attack in which he used a hammer and a knife. The Crown Court at Newcastle upon Tyne imposed life imprisonment with an 18-year minimum term.

The Attorney General obtained leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient. The reference challenged both the credit given for the plea and mitigation, and the judge’s use of the 25-year starting point under Schedule 21 to the Criminal Justice Act 2003.

The central issue was whether the judge’s error concerning significant premeditation rendered the 18-year minimum term unduly lenient.

1. Reference determined; minimum term not altered. The court granted leave for the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, but held that the 18-year minimum term was not unduly lenient.

2. Paragraph 5A of Schedule 21 to the Criminal Justice Act 2003 normally fixes a 25-year starting point where an offender takes a knife or other weapon to the scene intending to commit an offence or to have it available as a weapon. Following the interpretation in Kelly and Ors [2011] EWCA Crim 1462, the premeditation required by paragraph 5A may be less than the significant planning or premeditation treated as an aggravating factor by paragraph 10. Paragraph 11 also confirms that some premeditation is inherent in paragraph 5A.

3. The sentencing judge should therefore have found significant premeditation beyond that inherent in paragraph 5A. The offender had formed an intention to kill at least by the previous night, took two weapons, waited for the victim and carried out the planned attack. The starting point should have exceeded 25 years.

4. The judge was nevertheless entitled to give significant credit for the plea. Although the plea to murder was delayed, the offender had immediately admitted the killing and responsible counsel needed to investigate whether his mental state supported diminished responsibility or loss of control. The judge was also entitled to reduce the term to reflect the offender’s learning difficulties, vulnerability and lack of previous convictions.

5. Any increase above 25 years would have been modest, particularly when compared with the greater planning in Kelly and Ors. The starting-point error did not make the resulting 18-year minimum term unduly lenient. The court therefore did not interfere.

• Court of Appeal (Criminal Division) In an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court granted leave but declined to alter the minimum term: [2012] EWCA Crim 135.
• Crown Court at Newcastle upon Tyne HHJ Goss QC sentenced the offender, following a guilty plea to murder, to life imprisonment with an 18-year minimum term.