R v Vito di Marco & Anor

On a sentence appeal, a trial judge may assess harm by reference to the evidence as a whole and place the case between sentencing-guideline categories, allowing for uncertainty about the permanence of physical injury. Physical and psychological consequences may both be considered. An offender who conceived the plan, recruited and paid others, and attempted to cover up the offence may properly be treated as more culpable and dangerous than co-offenders. Life imprisonment may be justified where the offence is sufficiently serious, the risk has no reliable endpoint, and an extended determinate sentence would not adequately address it. A lack of sophistication or the absence of recent violent convictions does not necessarily prevent a finding of dangerousness.

Following convictions for attempted murder at the Crown Court at Warwick on 10 January 2023, Vito Di Marco was sentenced to life imprisonment with a minimum term of 22 years and 280 days. Darren Hattersley received an extended determinate sentence of 35 years, comprising 30 years’ custody and a five-year extended licence period.

Di Marco renewed his application for leave to appeal against sentence. Hattersley sought an extension of time to renew his application, as well as leave to appeal. The challenges concerned the assessment of harm, relative culpability, dangerousness, and the appropriateness of the sentences.

The court granted Hattersley the short extension of time required, but refused both renewed applications for leave to appeal against sentence.

1. The sentencing judge had heard the trial evidence and had seen and heard the victim. That gave him a substantial advantage in assessing the seriousness and consequences of the offending. Reading the sentencing remarks as a whole, he had placed harm between categories 1 and 2 and had allowed for the possibility that the victim’s physical condition might improve. That was a course open to him.
2. The judge was entitled to consider both physical and psychological harm. The victim had been shot at close range and had reasonably believed that he was going to die. The 35-year starting point used for Di Marco was not erroneous and would in any event have fallen within the upper end of the category 2A range.
3. Di Marco was properly treated as more culpable than the other offenders. He originated the plan, involved Hattersley, funded the operation, caused Odley to be recruited, and attempted to cover his tracks. His offence therefore encompassed everything done by the others and more.
4. The facts established dangerousness. Di Marco’s hostility might persist in custody, and there was no reliable indication when his risk would cease. The offence was sufficiently serious to justify life imprisonment, and an extended determinate sentence would not have met the risk.
5. Hattersley’s willingness and ability to recruit a gunman demonstrated dangerousness. His age and any lack of sophistication did not materially reduce that assessment. The extended licence period was therefore justified.

1. Court of Appeal (Criminal Division): In [2024] EWCA Crim 19, the court granted a short extension of time to Hattersley and refused both renewed applications for leave to appeal against sentence.
2. Crown Court at Warwick: On 10 January 2023, Di Marco and Hattersley were convicted of attempted murder and sentenced to life imprisonment and an extended determinate sentence respectively.