De Silva v R

When fixing a minimum term for murder, the court must assess all relevant circumstances and apply statutory guidance without treating it as rigid. A young offender’s age may substantially reduce culpability because youth may involve impulsive and unthinking conduct, even where the deliberate use of deadly force remains highly culpable.

A personality disorder which does not impair responsibility does not itself reduce culpability. Nor must the absence of a premeditated intent to kill materially mitigate a murder committed during a planned armed burglary. The court must avoid double-counting or inflating aggravating features already reflected in the starting point under the Criminal Justice Act 2003.

The appellant, aged 19 when he committed the offence, was sentenced at the Central Criminal Court to life imprisonment for murder with a minimum term of 32 years. He also received a concurrent 12-year sentence for aggravated burglary.

He had entered the elderly victim’s home carrying a lock knife and inflicted multiple fatal wounds when confronted. The sentencing judge adopted a 30-year starting point under Schedule 21 to the Criminal Justice Act 2003, treating the murder as committed for gain in the course of burglary, and increased the term for aggravating features.

On a renewed application for leave to appeal, the central issue was whether the 32-year minimum term was manifestly excessive having regard, in particular, to the appellant’s youth, background and personality disorder.

1. Appeal allowed to a limited extent. The court granted leave, quashed the 32-year minimum term and substituted a minimum term of 28 years.

2. The sentencing judge correctly identified the aggravating features. The appellant had armed himself before committing a domestic burglary, attacked an elderly and vulnerable householder repeatedly in his own home, and had relevant previous convictions. The judge was also entitled to find that neither the personality disorder nor the absence of a premeditated intention to kill provided significant mitigation in the circumstances.

3. Nevertheless, the minimum term was manifestly excessive. The sentencing task required the judge to reflect the seriousness of the offence and every relevant factor, including the offender’s age, while using the statutory guidance without rigid adherence. A 32-year minimum term was exceptionally severe for an offender who was 19 when he killed.

4. The appellant’s youth was a significant mitigating factor. Young offenders may be impulsive and unthinking, and may react with excessive and gratuitous force. His personality disorder did not reduce culpability for his deliberate conduct or use of deadly force, but, together with his youth, could explain why he had not learned from previous encounters with the law.

5. The court also cautioned against inflating the combined aggravating factors where the 30-year starting point already applied to murder in the course of burglary for an offender over 21. The concurrent 12-year sentence for aggravated burglary was directed to be recorded as detention rather than imprisonment, because the appellant was 20 when he pleaded guilty.

• Court of Appeal (Criminal Division): Granted leave and allowed the sentencing appeal to the extent of substituting a 28-year minimum term: [2014] EWCA Crim 2616.
• Central Criminal Court: On 28 February 2014, HHJ Pontius imposed life imprisonment for murder with a 32-year minimum term and a concurrent 12-year sentence for aggravated burglary. No lower-court citation was stated.