R v Nathan Thomas Smith

For murder sentencing under Sentencing Act 2020, Schedule 21 requires the court first to select the applicable starting point and then to assess aggravating and mitigating features. Where the offender was not proved to have taken a knife to the scene with the required intent, the lower 15-year starting point applied.

A substantial increase may be justified by the use of a bladed tool, repeated violence, public alarm, concealment, flight and relevant convictions. An appellate challenge is not arguable merely because a different balance of mitigation is advanced, where the sentencing judge was entitled on the evidence to make the factual findings and had properly evaluated the competing features.

The applicant was convicted of murder at the Central Criminal Court on 17 August 2022 and, on 25 August 2022, was sentenced to life imprisonment with a minimum term of 21 years, less time spent on remand.

The sentencing judge adopted a 15-year starting point under Schedule 21 to the Sentencing Act 2020. He increased it for aggravating features and reduced it for mitigation. The applicant made a renewed application, 49 days out of time, for leave to appeal his minimum term. He contended that the uplift for aggravation was excessive and that mitigation, including lack of premeditation, provocation, remorse and good character evidence, had been insufficiently reflected.

The central issue was whether the proposed sentence appeal was arguable.

1. The renewed application for leave to appeal sentence was refused. No purpose would therefore be served by extending time.

2. The judge had correctly used the 15-year starting point under Schedule 21 to the Sentencing Act 2020. He could not be satisfied that the applicant had taken the skeletool to the scene intending to use it to commit an offence or to have it available as a weapon.

3. The sentencing judge was entitled to find that the applicant was the aggressor throughout. He emerged from the van holding the tool with its blade open and locked, advanced towards the victim, and used it repeatedly. On the evidence, the tool’s possession and use in the fatal encounter were neither lawful nor connected with his work as a plumber.

4. The judge had accurately identified the aggravating features. They included the use of the bladed tool, the repeated swings causing three wounds, the public nature of the attack, attempts to conceal evidence, flight from the jurisdiction for 17 months, and previous convictions. Their combined effect justified a substantial uplift from the starting point.

5. The judge had also identified all material mitigation, including lack of premeditation, an intention to cause serious harm rather than death, an element of provocation or self-defence, remorse and positive personal references. He was best placed to evaluate those matters against the aggravation. The resulting 21-year minimum term was not arguably unjust or unjustifiable.

• Court of Appeal (Criminal Division): Refused the renewed application for leave to appeal against the minimum term and refused an extension of time.
• Central Criminal Court: The applicant was convicted of murder on 17 August 2022 and sentenced on 25 August 2022 to life imprisonment with a 21-year minimum term, less 447 days on remand.