R v Chun Xu

When sentencing for murder and attempted murder arising from the same sequence of offending, the court must assess the overall criminality. It may increase the murder minimum term to reflect the attempted murder, but must not mechanically add the concurrent determinate sentence or its custodial element. Common aggravating features may properly inform the separate assessments where they form part of the planned offending. Prior sentence uplifts do not create a percentage tariff. The proper uplift depends on the facts and totality of the particular case.

R v Chun Xu concerned a renewed application for leave to appeal against the minimum term imposed after convictions at the Crown Court at Merthyr Tydfil for the murder of a 16-year-old girl and the attempted murder of her stepfather.

The applicant received life imprisonment with a 30-year minimum term for murder and a concurrent 25-year sentence for attempted murder. The sentencing judge adopted a 15-year statutory starting point for the murder, assessed it at 22 years if sentenced alone, and then uplifted the minimum term to reflect the attempted murder and total criminality.

The applicant contended that the uplift double-counted aggravating features, was manifestly excessive, and failed properly to reflect totality.

1. The renewed application for leave to appeal was refused. The 30-year minimum term was not manifestly excessive and properly reflected the overall criminality of the murder and attempted murder.

2. The sentencing judge was entitled to fix the murder minimum term by reference to Sentencing Act 2020, Schedule 21, paragraph 5, and to assess the appropriate term for that offence in isolation. He then had to take account of the concurrent attempted-murder conviction. He correctly recognised that he could not simply add either the 25-year determinate sentence or the period that would have been served under it.

3. The correct course was to make an appropriate uplift to the murder minimum term after considering the offending as a whole. The judge had properly directed himself by reference to R v Farhad Mahmud [2014] EWCA Crim 1008 and R v Jama Ahmed [2018] EWCA Crim 739.

4. There was no impermissible double-counting. The shared planning was relevant to each offence because both formed part of the planned sequence of attack. The judge separately considered the additional aggravating features of the murder and attempted murder, then increased the minimum term by eight years to reflect their combined criminality.

5. A comparison of uplifts as percentages was unhelpful. Mahmud involved a different factual setting and a higher starting point. Neither authority supported a percentage-based tariff. Sentencing courts must instead determine the appropriate uplift on the facts and totality of the individual case.

• Court of Appeal (Criminal Division): In R v Chun Xu [2022] EWCA Crim 933, the court refused the renewed application for leave to appeal against the 30-year minimum term.

• Crown Court at Merthyr Tydfil: On 9 November 2021, the applicant was convicted of murder and attempted murder. On 12 November 2021, he received life imprisonment with a 30-year minimum term for murder and 25 years' imprisonment concurrently for attempted murder.

• Single judge: Leave to appeal against the minimum term was refused.