No: 2004/05008/B3
    2004/05018/B3
Neutral Citation Number: [2006] EWCA Crim 901
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Birmingham Crown Court
Queen Elizabeth II Law Courts
1 Newton Street
Birmingham
B4 7NA

Wednesday, 5th April 2006

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Phillips of Worth Matravers)

MR  JUSTICE  McCOMBE

MR  JUSTICE  WILKIE

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R E G I N A

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STEPHEN  SMITH
LEYFORD  SMITH

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Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4
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(Official Shorthand Writers to the Court)
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MR J BUCHANAN appeared on behalf of THE APPELLANT STEPHEN SMITH
MR R EGBUNA appeared on behalf of THE APPELLANT LEYFORD SMITH

MR N CARTWRIGHT appeared on behalf of THE CROWN

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J U D G M E N T

Wednesday, 5th April 2006

THE LORD CHIEF JUSTICE:  

Introduction

1.	On 29 July 2004, in the Crown Court at Warwick, before Hunt J and a jury, both appellants were convicted of attempted murder.  Stephen Smith was sentenced to life imprisonment, with a specified period under section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 of six years and six months' imprisonment.  Leyford Smith was sentenced to life imprisonment, with a specified period under that section of eight years and six months' imprisonment.  Each appeals against sentence by leave of the single judge.

The Facts

2.	The victim, Mr Gibson, is the proprietor of a property-letting agency known as "The Coventry Property Shop".  On 18 September 2003, he received a telephone call from a woman called Mel, who was the girlfriend of Stephen Smith, asking to view No 26 Colchester Street, Hillfields, Coventry.  The day for the viewing was fixed for 20 September.  At about 10am on that morning Mr Gibson arrived at the property where he met Mel.  She said that she was waiting for two other people to arrive.  After a few minutes the appellants arrived and spoke to Mel.  They looked around the house and then asked Mr Gibson about the central heating system, saying that they wanted to see it working as their last system had not worked.  Mr Gibson located the combi-boiler in a cupboard in the kitchen.  He attempted to start the boiler and, as he did so, he was struck at least twice to the back of the head by Leyford Smith with a claw hammer.  The appellants prevented Mr Gibson from leaving the kitchen and he ended up on the floor.  Leyford Smith continued to hit him with the hammer and Stephen Smith kicked him.  The victim was told, "You've been taking liberties".  He was then taken into the bathroom and told to get into the bath and empty his pockets.  The door was closed.  He attempted to get out, but Leyford told him to stay there and hit him again with the hammer.  At this point Mr Gibson, not unreasonably, formed the view that he was about to die.  

3.	Eventually the appellants left the house leaving Mr Gibson for dead.  He managed, however, to attract the attention of a passer-by who called the police.  During the course of the attack his Rolex watch and wedding ring were taken.  The watch was recovered from Stephen Smith.

4.	Mr Gibson was taken to hospital by ambulance where he received emergency treatment.  He had sustained four depressed fractures and twelve significant lacerations to his skull, as well as a number of other injuries to his body.  It is a miracle that he survived.

5.	Stephen Smith was arrested on 22 September 2003, and Leyford Smith on 24 December 2003.  Both appellants denied being in Coventry on the day of the offence, relying on alibis.  Stephen Smith changed his defence during the trial as a result of identification evidence by a prosecution witness.  He admitted that he had been present together with his half-brother Colin, not Leyford Smith.  Colin was ordinarily resident in the United States.  Stephen Smith alleged that he had played no part in the attack, but had only acted in defence of his brother Colin in disarming Mr Gibson, who, he said, had been the aggressor.  Stephen Smith said that he had left the property before any attack had taken place in the bathroom.

The Sentencing

6.	Following their convictions, the judge indicated that he proposed to sentence the appellants immediately and was minded to impose life sentences.  He granted counsel an adjournment to consult the relevant authorities in the court library and heard submissions based upon these authorities.  Counsel for each appellant sought to persuade him that there was no reason to conclude that the appellant would pose a risk to the public if released after serving a determinate sentence and that accordingly it was not appropriate to impose a discretionary life sentence.  

7.	The judge's reasons for rejecting these submissions appear more clearly from discussion with counsel before he sentenced than from his sentencing remarks.  This was his summary of the material considerations:

		".... this was an attempt to kill, in which the man was left for dead in the bathroom.  There was no attempt to get him any assistance once they had gone.  As far as they knew he would bleed to death in the bath and that was the intention.  This was a contract, a paid killing.  It is worse than any murder cases in terms of the intent.  As you know, the intention for murder only has to be an intention to cause grievous bodily harm.  This is a specific intent to kill on a paid contract."

8.	It is clear that the judge considered that men who had been prepared cold-bloodedly to kill for gain under contract demonstrated so serious a disregard for the law that they would or might necessarily still pose a risk to the public when they had served the lengthy custodial sentences that the facts of the case required by way of punishment.

The Legal Principles

9.	Neither the provisions of the Criminal Justice Act 2003 that relate to dangerous offenders, nor those which apply to the determination of the minimum term where a mandatory life sentence is imposed for murder, apply in the case of these appeals.  It follows that we have to look at the jurisprudence applicable to the pre-existing regime when considering these appeals.

10.	Mr Egbuna, who appeared for Leyford Smith below and who has appeared before us, with whose submissions Mr Buchanan for Stephen Smith has allied himself, has submitted that the judge was wrong to conclude simply from the facts of the offences that it was appropriate to impose life sentences.  He has referred us to a number of relatively recent decisions where defendants convicted of attempted contract killings were given, albeit lengthy, determinate sentences.  He has also referred us to the decision of this court in R v Basra (1989) 11 Cr App R(S) 527, and to the following passage in the judgment of the court delivered by Lord Lane CJ at page 529:

		"In general it should be said that a life sentence, where it is other than mandatory, as was the case here, is to be reserved for cases where the defendant is someone in respect of whom there is some relevant feature which cannot be determined at the time when the judge is passing the sentence.  The usual example of that will be some mental condition which affects the degree of risk which the release of the defendant into the community will present.  Where there is no such imponderable feature, and where the question is simply that of punishment and the necessity to deter others, those matters can be gauged at the time of sentence, and so as a rule an indeterminate sentence will be inappropriate."

11.	It is not an inevitable rule that the judge has to look for some mental condition to justify the imposition of a life sentence.  That is apparent from the decision of this court in Attorney General's Reference No 32 of 1996 (R v Whittaker) [1997] 1 Cr App R(S) 261.  In that case, when on home leave from life imprisonment for murder, the offender had committed a life-threatening assault on a young woman.  He was acquitted of attempted murder, but convicted of causing grievous bodily harm with intent.  The judge imposed a sentence of seven years' imprisonment.  One reason why he eschewed a discretionary life sentence was because there was no medical evidence of personality disorder or mental instability.  This court held that the sentence was unduly lenient, quashed it, and substituted a sentence of life imprisonment.  In explaining the reason for this course Lord Bingham CJ said:

		"In our judgment the learned judge was taking an unnecessarily narrow view of the circumstances in which a discretionary life sentence can be imposed.  It appears to this court that the conditions may be put under two heads.  The first is that the offender should have been convicted of a very serious offence.  If he (or she) has not, then there can be no question of imposing a life sentence.  But the second condition is that there should be good grounds for believing that the offender may remain a serious danger to the public for a period which cannot be reliably estimated at the date of sentence.  By 'serious danger' the court has in mind particularly serious offences of violence and serious offences of a sexual nature.  The ground which may found such a belief will often relate to the mental condition of the offender.  So much is made plain by Wilkinson (1983) 5 Cr App R(S) 105, in particular the passage at 108 where Lord Lane CJ cites the judgment of Lawton LJ in Pither (1979) 1 Cr App R(S) 209 and continues:

			'It seems to us that the sentence of life imprisonment, other than for an offence where the sentence is obligatory, is rarely appropriate and must only be passed in the most exceptional circumstances.  With a few exceptions, of which this case is not one, it is reserved, broadly speaking, as Lawton LJ pointed out, for offenders who for one reason or another cannot be dealt with under the provisions of the Mental Health Act, yet who are in a mental state which makes them dangerous to the life or limb of members of the public.  It is sometimes impossible to say when that danger will subside, and therefore an indeterminate sentence is required, so that the prisoner's progress may be monitored by those who have him under their supervision in prison, and so that he will be kept in custody only so long as public safety may be jeopardised by his being let loose at large'.

		It is therefore plain that evidence of an offender's mental state is often highly relevant, but the crucial question is whether on all the facts it appears that an offender is likely to represent a serious danger to the public for an indeterminate time."

12.	That test is not significantly different from that which applies to assessment of risk of serious harm when considering the imposition of a discretionary life sentence pursuant to the provisions of the Criminal Justice Act 2003, as explained by the Vice-President in the recent decision in R v Lang and Others [2005] EWCA Crim 2864: see paragraph 8 of that judgment.

13.	We accept Mr Egbuna's submission that in principle the mere fact of an offender being guilty of an attempted contract killing is not enough of itself (in normal circumstances at least) to justify the imposition of a discretionary life sentence.  

Reports

14.	We have now been provided with both prison reports and pre-appeal reports to assist us to evaluate the conduct of each of the appellants.  Each has an exemplary prison record.  The pre-appeal report on Leyford Smith gives a helpful summary as to his previous criminal record as follows:

		"[He] was first convicted as a juvenile aged 13, and has had numerous appearances for a variety of offences, including some for violence.  His offending had initially been acquisitive in nature and thereafter progressed to more serious offences, namely burglary, carrying a loaded firearm, robbery and escaping from lawful custody.  He has since then experienced a number of custodial sentences both in the United Kingdom and in the United States of America.  The most significant of the appellant's custodial sentences was a 5 year imprisonment which he received at Sheffield Crown Court on 5 October 1992 for offences of robbery.  He was given a further 9 months to run consecutively with the above sentence for an offence of escaping from lawful custody."

We have been told that that conviction relates to an offence in 1984.  Since that offence the appellant was convicted by the Los Angeles County Superior Court of burglary, for which he was sentenced to 270 days' imprisonment.  Shortly after that he was convicted in Los Angeles of carrying a loaded firearm in public, for which he was sentenced to a fine of $100.  The last custodial sentences was imposed in 1999 when he was sentenced to two years' imprisonment for cultivating and supplying Class B drugs.  In relation to the appellant's response to custody the pre-appeal report comments:

		"I understand from the prison that Mr Smith has been a model inmate.  He has not presented as a management or control problem and has no adjudications or written warnings against him, thus far.  He has attempted to keep himself fully occupied by working, improving his reading and writing skills and volunteering to assist fellow inmates by undertaking the Samaritans Listener's course and fulfilling this responsibility.  He tells me that he has requested to see the prison psychologist in order to ascertain his suitability for courses in prison."

Under the heading "Assessment of the risk of harm to the public and the likelihood of re-offending", the report states:

		"In assessing the risk of re-offending, I have taken into account Mr Smith's continual denial of the offence, together with his extensive list of previous convictions, his attitude towards the present offence, his present circumstances and his level of victim and self-awareness and I have assessed him as high risk of re-offending and of causing harm to members of the public in view of the nature of his previous convictions of violence.  In the event of his appeal failing, the current level of risk could be reduced by his completion of the Anger Management, Enhanced Thinking Skills and Victim Awareness programmes.  However, there would have to be some shift in his attitude to this offence, including his taking of responsibility for his actions, before he could participate in such programmes.  My interview with Mr Smith left me with the opinion that whilst his attitude in terms of the offence would not change significantly, if his appeal failed, he would undertake the necessary targets set in his sentence plan."

15.	The picture that this report gives of Leyford Smith, set in the context of his recent offence, is of a man with a bad criminal record, including robbery (although there is no very recent offence involving violence), who has served lengthy sentences of imprisonment which have not discouraged him from further offending, and who, undeterred by previous sentences, on this occasion was prepared to kill for gain.  This contrasts remarkably with the way he has been behaving in prison.  That factor makes it all the more difficult to evaluate when (if ever) he is likely to cease to be a criminal who is prepared to resort to violence in the course of crime.  As the pre-appeal report points out, the available rehabilitation in prison, if the appellant were to undertake it, might enable a firmer assessment of his future risk to be made.  But at present, because of his attitude to his offence, it is not possible for him to have the benefit of that rehabilitation.

16.	For these reasons we have reached the conclusion that this appellant satisfies the test of an offender who is likely to represent a serious danger to the public for an indeterminate time.  For that reason we consider that the sentence of life imprisonment imposed by the trial judge was a proper sentence.  No submission has been made in relation to the minimum specified period.  It follows that his appeal against sentence is dismissed.

17.	Stephen Smith is also something of an enigma, but for a different reason.  His pre-appeal report sets out the following information about him:

		"He has been together with his wife for thirteen years and has two children.  He was living with his family in school property because he worked as a school-keeper, a position he had held for eight years before the offence.  He enjoyed the job and found he could use his interest in football to assist the training of pupils....

		He says he has always been in full-time work.  Previously he was a self-employed painter and decorator and has taken a City & Guilds qualification in painting and decorating and carpentry.  Since leaving school without GCSE passes he has advanced his education and increased his opportunities by taking a range of further qualifications.

		He tells me that he has a B-Tech in construction and technology.  Between 1994 and 1995 he was training to be a minister in the Pentecostal Church and took a diploma in theology and a certificate in communication.  He has also studied for an access qualification for degree level in history, politics, economics and sociology."

He has never been convicted of an offence of any kind.  Under the heading "Risk Assessment" the report reads as follows:

		"Stephen Smith's risk assessment, regarding harm to anyone in general in the community, in addition to any known person, is regarded as medium risk.  He is of previous good character and has positive achievements in the community in his name.  In my view however he has demonstrated a callous disregard of the victim and therefore should be considered of high risk in relation to a known adult given this was a contract killing as declared by the judge.  Furthermore there is still the primary motive, as expressed to the AOsys assessor, of loyalty to his sibling whatever the consequences, although his view may have been changed as a consequence of his conviction."

It is clear that in the offence of which he was convicted, Stephen Smith played a significant supporting role.  It appears that he followed his brother's lead out of some kind of perverse family loyalty.  However, the author of the pre-appeal report suggests that in the absence of any previous convictions or any known propensity to violence, if his brother is not released until he ceases to pose a risk to the pubic, there is no reason to conclude that Stephen Smith will pose a serious risk to others when he is released after the lengthy term of imprisonment that he will have to serve.

18.	Accordingly, in his case we consider that the sentence of life imprisonment that was imposed was wrong in principle.  It should be quashed and replaced with a determinate sentence.  The appropriate determinate sentence should be based upon the minimum term imposed by the trial judge, that is a sentence of fifteen years' imprisonment.  He has served 310 days in custody prior to sentence.  If it is necessary for us to do so, we would direct that that term is to count towards the sentence.