Smith & Ors, R. v

For a murder committed during a robbery, the 30-year starting point under paragraph 5 of Criminal Justice Act 2003, Schedule 21 may apply even though the offenders did not intend to kill or expect gain from the killing. It is sufficient that the murder was committed in the course of the robbery.

Minimum terms require an evaluative judgment on the whole case, not an arithmetical exercise. The mandatory life sentence protects the public; the minimum term serves punishment and deterrence. Youth and lack of intent to kill may be significant mitigation. Where insufficient weight is given to those combined factors, the resulting minimum term may be manifestly excessive.

Four appellants pleaded guilty to conspiracy to rob and were convicted of the murder of Reece Ottaway following a joint trial. They had entered his flat in the early hours to rob him of drugs and cash, carrying weapons. During the robbery he was repeatedly stabbed and died at the scene.

At the Crown Court at Northampton, HHJ Lucking QC imposed life sentences with minimum terms of 28 years for Higgs and Drage, 31 years for Smith, and 34 years for Crowley. Smith and Crowley also received concurrent sentences for other serious offences.

Each appellant appealed against the length of the minimum term. The principal issues were the applicable Schedule 21 starting point and the weight to be given to youth, absence of an intention to kill, and lack of premeditation.

1. The appeals were allowed to the extent of reducing each minimum term. Although the judge had conducted a careful sentencing exercise, she had not given sufficient weight to the appellants’ relative youth and their lack of an intention to kill. The terms were therefore manifestly excessive.

2. The judge correctly adopted the 30-year starting point in paragraph 5 of Schedule 21 to the Criminal Justice Act 2003. The case was a murder for gain because it occurred in the course of a robbery. It was unnecessary that the killing itself should have been intended to obtain gain or further the robbery. The alternative 25-year starting point for a weapon taken to the scene did not displace the applicable paragraph 5 category.

3. Schedule 21 supplies general principles and examples, rather than an arithmetical code. The court was entitled to treat the group attack and the presence of others in the flat as non-statutory aggravating features. The victim’s girlfriend was prevented from assisting him and was injured during the attack. Those matters could aggravate an offence already within the 30-year starting-point category.

4. Public protection did not justify a higher minimum term. That purpose is secured by the mandatory life sentence and the Parole Board’s later release decision. The minimum term instead reflects punishment and deterrence, consistently with R v Peters and Others [2005] EWCA Crim 605.

5. The absence of premeditation added nothing material beyond the absence of an intention to kill on these facts. Nevertheless, the combined mitigating force of youth and lack of intent required larger reductions. Higgs’s and Drage’s terms were reduced to 26 years, Smith’s to 29 years, and Crowley’s to 32 years. In each case, 268 days spent on remand were to be deducted.

• Court of Appeal (Criminal Division) Allowed the sentence appeals to the extent of reducing the minimum terms imposed for murder.
• Crown Court at Northampton HHJ Lucking QC sentenced the appellants on 1 November 2019 to life imprisonment or custody for life for murder, with the challenged minimum terms.