Johnson, R v

When fixing a minimum term for murder, the court must assess the seriousness of the offence and ensure that aggravating features not already reflected in the chosen Criminal Justice Act 2003 Schedule 21 starting point produce a further increase. It must not avoid that exercise by treating all aggravating features only as a collective reason for selecting the starting point.

A whole life order remains a discretionary sentence reserved for rare, exceptionally serious cases. Public protection is provided by the mandatory life sentence and the Parole Board process; the minimum term instead serves punishment and retribution. Age, disability, health and a late guilty plea may mitigate, but must be balanced against the gravity of the offending.

The offender pleaded guilty at the Central Criminal Court to the murder of his former partner. The sentencing judge imposed life imprisonment with a minimum term of 26 years, less time spent on remand.

The Solicitor General referred the sentence under section 36 of the Criminal Justice Act 1988, contending that it was unduly lenient. The principal issues were whether a whole life order was required and, if not, whether the sentencing judge had given sufficient weight to the offender’s two earlier manslaughter convictions, the brutal murder and his breach of a condition attached to his conditional discharge from hospital.

1. The reference succeeded. The court granted leave, held that the 26-year minimum term was unduly lenient, quashed it and substituted a minimum term of 30 years, with 358 days on remand to count towards it.

2. A whole life order was not required. Such an order is discretionary and reserved for the rare, exceptionally serious cases in which just punishment and retribution require it. The sentencing judge was entitled, in light of the offender’s age, disability, guilty plea and all the circumstances, to conclude that a long minimum term was sufficient.

3. The minimum term is punishment and retribution for the seriousness of murder. Protection of the public is secured by the mandatory life sentence and the requirement that the Parole Board be satisfied that release is safe. It was therefore neither necessary nor appropriate to increase the term for public protection.

4. Under paragraph 8 of Schedule 21 to the Criminal Justice Act 2003, aggravating factors must be taken into account to the extent that they have not already been allowed for in choosing the starting point. The judge correctly selected the 30-year starting point for particularly high seriousness, but erred by treating all aggravating features merely as the collective basis for that point.

5. The earlier manslaughter convictions substantially aggravated the murder. They were voluntary manslaughters in which the ingredients of murder were proved or admitted, and elapsed time did not significantly diminish their aggravating force. The deliberate and concealed breach of the hospital-discharge condition, designed to protect women entering relationships with the offender, was also gravely aggravating. The factors justified a significant increase above 30 years, without double counting.

6. The proper pre-mitigation term was 35 years. Greater weight than the judge had given was due to the exceptional burden of imprisonment on an ageing, severely disabled offender. That mitigation, together with appropriate credit for the late guilty plea, reduced the term to 30 years.

• Court of Appeal (Criminal Division): On a reference by the Solicitor General under section 36 of the Criminal Justice Act 1988, the court held the minimum term unduly lenient and substituted 30 years.
• Central Criminal Court: The offender pleaded guilty to murder and was sentenced to life imprisonment with a 26-year minimum term.