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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> R v H (Reference by the Attorney General) [2007] EWCA Crim 53 (30 January 2007) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2007/53.html Cite as: [2007] 1 All ER 1254, [2007] EWCA Crim 53

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM MANCHESTER CROWN COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		30/01/2007

President of the Queen's Bench Division :

1. This is a Reference under s 36 of the Criminal Justice Act 1988 by HM Attorney General of a profoundly disturbing and anxious case.
2. The offender was born in May 1991. He is now fifteen years old. He is of low intelligence and was already emotionally damaged, when, suffering a form of mental disorder, he murdered an even younger eleven year old boy who, with the advantage of a wonderful home, was being taught to and learning to live with the disadvantage of cystic fibrosis, with its attendant impact on his life.
3. At a hearing on 13 October 2006, it was indicated that the offender would plead guilty to murder. He appeared at Manchester Crown Court before Mr Justice McCombe on 16 October and he did indeed plead guilty, at what, it was accepted on all sides, was the first available opportunity. He was sentenced to detention at Her Majesty's Pleasure. The judge ordered that the minimum term to be served before he could be considered for release was twelve years. From this period 229 days which he had already spent in custody was deducted.

The Offence

4. The victim of the murder, Joe Geeling, was born in June 1994. Throughout this judgment we shall refer to him as Joe. The diagnosis of cystic fibrosis was made when he was six weeks old. As a result he was frequently admitted to hospital where he stayed overnight for necessary treatment. His condition affected his weight and his growth. However his parents were anxious that he should lead as normal a life as practicable. He went to school during the day. As necessary his mother would take him to hospital after his return home from school, and when appropriate, she would pick him up from hospital in the morning after an overnight stay. On other days he was allowed to walk the relatively short distance between his school and his home after school ended.
5. The offender was a pupil at the same school in Bury. He lived at home with his mother at an address which was not far from the school, but in the opposite direction to Joe's home. There was a good deal of information gathered after the murder which showed that he was a lonely, isolated boy who had suffered significant bullying while at school.
6. The two boys did not know each other well, and there was no significant contact between them in the days leading up to Joe's murder.
7. In general, children in the first year at school were kept separate from the older children during their early days. The purpose was to get them securely into the ordinary routine of school life. There was however a system by which older children were appointed as mentors to the younger children, to keep an eye on them, and help them settle in. There was nothing remarkable or inappropriate about this system, but the offender used it as a way of making contact with the younger boy. He was later to tell psychiatrists that he wanted someone else to feel what it was like to be bullied, and there can be no doubt that because of Joe's condition, he was more vulnerable and would certainly appear to be less able to resist. In other words, for the offender's purpose he represented an ideal target.
8. The offender drafted a letter to Joe, purporting to come from the Deputy Headmistress, recording that he was appointed as his mentor, and setting up a meeting with him after school. A copy of that letter was recovered from Joe's body after his death. A series of drafts of the letter were also found in and close to the offender's home. The most significant of them was found in his bedroom. It was never in fact sent, but it threw some further light on the offender's motivation. The draft started off as a letter which was intended to be sent, but then the writing turned into a scrawl and culminated in a suggestion that Joe would have to go to the offender's home because a teacher would be speaking to him during the morning break, "to tell you that you will have to go to a year 10's house to have bum sex".
9. The offender was later to tell a psychiatrist instructed by the Crown that he thought he had written this letter some three weeks before the killing. The text tends to suggest that the offender had made some sort of plan to lure Joe to his home in order to expose him to some form of sexual abuse. During the course of mitigation on the offender's behalf, it was accepted that this would be an appropriate inference to draw from this letter.
10. The letter which Joe actually received from the offender troubled him, and on 1 March he produced the letter to his teacher. She suggested that he should go to the office of the deputy headmistress. Later Joe explained to one of the teachers that it had all been sorted out, and it is therefore probable that something was said between the offender and Joe which lead Joe to appear relieved. Whatever may have been said, Joe's concern about the offender's letter was alleviated, and the offender was able to continue his plan for a private encounter with him.
11. On the morning of 1 March Mrs Geeling picked Joe up from hospital in the morning and took him to school as usual. He was wearing his school uniform. He carried a mobile phone. There were two chargers for it, one kept at home, and one at hospital.
12. Nothing that happened on the same morning at the offender's home gave his mother any warning of what lay ahead that day. She dropped the offender off near school as usual.
13. At the end of the school day the offender and Joe walked along the route from the school to the offender's home, that is, in the opposite direction to that which Joe would normally have taken to get home. School finished at about 3.50pm. The walk would have taken approximately 17 minutes. So at about 4.10 or thereabouts, the two boys entered the offender's home. No one else was present.
14. In an interview the offender claimed that Joe had gone back to his house with him because he wanted to use a charger for his phone, so as to contact his mother. Given the facts already narrated, this explanation was not credible. Nevertheless, by means of one pretext or another, Joe was enticed to go to the offender's home rather than his own.
15. At about 4.30-4.35 a witness observed the offender pushing a wheelie bin. It contained the dead body of Joe Geeling. The offender became aware of the fact that he had been seen by a witness, so as a distraction tactic, he stopped and tied his shoelace. He then continued on his journey. He took the bin to Whitehead Park, and eventually to a gully at the side of the park. Joe's body was later found in the gully. It was covered by various items including an old base sprung item of furniture rocks and leaves. Although these efforts had been made to hide the body, it would obviously have been found sooner or later.
16. At 4.48, in conversations between the offender and his mother, he justified his failure to answer the telephone and his absence from the home. There was nothing in his tone of voice or what he said to alert his mother to the fact that anything out of the ordinary had happened.
17. Events during the short time when the offender and the victim were together in the house were reconstructed on the basis of scientific and medical evidence, and from what the offender himself had to say. His account was not entirely consistent with some of the scientific findings, but it is safe to act on the reconstructions. The narrative of what happened to Joe is extremely distressing.
18. Examination of the scene confirmed that at least part of the attack on the victim had taken place upstairs. The first weapon used by the offender was a frying pan which he obtained from the kitchen. In his interview with the police he began by asserting that he had seized hold of the frying pan because Joe was upstairs looking at a photograph of the offender's stepbrother, who had himself, sadly, died. This made the offender angry, so he found the frying pan and went upstairs and struck the victim with it. It was a very hard blow or blows, and eventually it broke. Post mortem examination showed, among numerous bruises to Joe's head, a significant injury to the bones of the left eye socket which was fractured. Such an injury required considerable force. Further injuries to the top of Joe's head suggested that there had been five separate episodes of blunt force trauma, some of them patterned, and therefore consistent with the use of a frying pan. The frying pan itself was never recovered. It was thrown away by the offender and taken away when the rubbish was collected the next morning.
19. After this initial attack, Joe would at the very least have been highly disorientated. The offender went downstairs. This time he took two or possibly three knives from the kitchen, and he then attacked Joe with them.
20. The injuries discovered at post mortem must be summarised. There was a gaping injury across the front of the neck, the result of a stab entering through the left side of the neck and penetrating to a depth of 8cm. The knife was moved whilst still in the wound. There was another irregular stab wound which punctured the trachea in two places. It was difficult to decide whether this injury represented the result of one or two thrusts with a knife, but the nature of the wound itself suggested that again the knife had been moved around while inside the body. This required severe force and penetrated through to the spinal column and injured a major artery. There were a further eight stab wounds and four incised wounds to the head and neck, one of which chipped off some underlying bone, and three of which would also have required severe force. There was a stab wound to the right buttock, inflicted post mortem, and to date unexplained by the offender.
21. Quite apart from a total of sixteen wounds caused by the use of the knives, there was significant blunt force trauma to the head, inflicted with the frying pan at the beginning of the violent attack, with an additional five further blows to the forehead and eye region. There was bruising to both upper lips, which could have been caused by gripping or during a struggle, and typical finger bruises to the victims left inner thigh. A defence injury in the region of the right thumb was also noticed. This suggests that the attack with the frying pan had not rendered Joe unconscious, and that he must have been aware of at least the beginning of the attack on him with a knife. Blood staining in the rear bedroom and landing areas were consistent with him having moved about upstairs after his wounds had started to bleed. He appears to have collapsed. The cause of death was loss of blood due to stab wounds.
22. Joe's body was dragged downstairs and carried through to the kitchen. It was put into the wheelie bin and eventually disposed of in the gully. In the meantime the offender set about cleaning up the scene as best he could. Blood was later found in the vacuum cleaner, and he explained that he had used it to clear up some of the mess. It appears that at some stage during the evening he did his homework, and when his mother returned home from work, he explained some of the red staining which remained after his efforts to clean the scene, by telling her that his red pen had broken.
23. Next morning the offender went to school as usual. Joe's disappearance became known, and in view of events on the previous day, the offender was questioned by staff. At first he provided inconsistent accounts. The police attended. He was arrested. He made clear that he did not want any delay in the interview process, and as soon as it began he immediately admitted his responsibility for Joe's death.
24. His account in interview was that the meeting had been arranged as a "wind-up" for the victim with the object that the victim would go to his home when no one else would be present. He said that he happened to be waiting nearby at school when Joe left, and that he had seen and followed him because he wanted to charge up his telephone. He said that he was sorry for what he had done. He would do anything to put it right. He was formally charged with murder. On advice he gave a lengthy reply in which he stated that there was more that he would wish to say given more time.
25. In due course, however, it was accepted on his behalf during the course of mitigation that he had attacked Joe after he had made some kind of sexual approach to him, which Joe had rejected. In the course of doing so Joe had told the offender that he was gay and threatened to tell others what the offender had tried to do to him. As a result, in order to silence him, the offender attacked and killed him.
26. The judge was provided with a victim impact statement prepared by Joe's father. We have read it with care, and with sympathy. Joe's murder is catastrophic. It is indeed the "the worst nightmare" which any parent could be forced to suffer.

The Offender

27. The offender had no previous convictions, and there was no history of violence in any form.
28. Detailed psychiatric reports were prepared on behalf of the defence by Dr Hilary Grant, a consultant forensic child and adolescent psychiatrist, and on behalf of the prosecution by Professor Susan Bailey, also a consultant adolescent forensic psychiatrist. Dr Kristy Sedley, consultant clinical psychologist, prepared a psychological report. These reports were closely analysed at the hearing.
29. The offender had a virtually non-existent relationship with his father, and his experience "of paternal contact has left with him with a sense of being unloved, denigrated and deprived" of any relationship with his older half-brother who had died from cancer. He was bullied at primary and secondary schools. This bullying took the form of verbal abuse, exclusion from his own groups, and being pushed about and punched. The bullying was reported to the school. A letter of apology was received, but two days before the murder of Joe, the offender was threatened, "you are a dead man walking". The upshot of the offender's life history is that, in addition to his low average range of intelligence, he was emotionally immature and vulnerable. He was suffering from an Adjustment Disorder at the time of the offence, that is to say, a state of subjective stress and emotional disturbance, but not to the extent that his responsibility for his actions was properly to be regarded as diminished to the extent that he was guilty not of murder but manslaughter. In short, the circumstances of his upbringing and childhood were desperately sad and disturbing, and at the time when he committed this offence, the offender was suffering from a consequent mental disorder.

Sentencing

30. We have studied McCombe J's sentencing observations. The analysis of the facts of the case is meticulous and detailed. The provisions of schedule 21 of the Criminal Justice Act 2003 which govern the determination of the minimum term when the judge is required to pass a mandatory life sentence (as he was in this case) were carefully addressed.
31. In essence, the submission on behalf on the Attorney General requires us to reconsider the provisions of schedule 21 and their application to the present case, in effect, on the basis that the minimum term ordered by McCombe J was "unduly lenient". After careful reflection, and at the direct request of the court, after a measured and valuable argument, Mr Edward Brown submitted that the proper minimum term was fifteen years rather than twelve years. In an equally balanced and helpful argument, Mr David Steer QC suggested that the minimum term ordered by the judge fell within the appropriate range, and that this court should not interfere with it.

Schedule 21 of the Criminal Justice Act 2003

32. As is now well known, schedule 21 identifies a series of "appropriate" starting points in the determination of the minimum term, appropriate, that is, to the seriousness of the offence, but linked to the age of the offender. Paragraph 7 provides:

"If the offender was aged under 18 when he committed the offence, the appropriate starting point, in determining the minimum term, is twelve years."

33. By contrast with paragraph 6, which applies to the offender aged 18 or over, but under 21 years of age, paragraph 7 is completely open ended. For any offender convicted of murder committed when aged under 18, the starting point is 12 years. That said, it is clear that the appropriate sentence remains fact specific. It is trite law but occasionally worth reminding ourselves that irrespective of the "starting point", the end result may be a minimum sentence of "any length", when appropriate, well below or well above the defined starting point. The court must take account of every aggravating and mitigating feature, with specific reference to those which are expressly identified in paragraphs 10 and 11 of the schedule. These lists are not exhaustive, and they have not meant to be exhaustive. In particular we should emphasise that when the court is dealing with an offender aged under 18 years the provisions of paragraph 7 do not preclude the sentencer from reflecting on all the express features of the crime of murder identified in paragraph 4 and 5 of the schedule, and when they are found to be present, from treating them as features which aggravate the offence. The determination represents the end of the sentencing process which begins at the starting point. In expressing ourselves in this way, we are not limiting our remarks to the determination of the minimum period in cases of murder. The same holds good of definitive guidelines issued by the Sentencing Guidelines Council, or guideline decisions in this court. The starting point, or range, informs the beginning of the process which culminates in the sentence.
34. The second feature of schedule 21 is that it underlines the long established sentencing principle that the level of responsibility, and ultimate criminality of an offender who is young is likely to be (but may not necessarily be) lower than the culpability and criminality of an older offender. No mathematical table can be produced which calculates the culpability of a young offender with any specific age, and no list, however carefully drawn up, can provide an accurate reflection of the way in which a young offender may or may not have learned from or been damaged by the experiences to which his young life has been exposed. The sentencer must make a balanced judgment of these matters.
35. The third feature of the minimum term which can sometimes be overlooked was addressed by McCombe J himself at the end of his sentencing remarks. It is perhaps worth emphasising that a sentence of detention during Her Majesty's Pleasure means that the offender will not be released unless and until it is safe for him to be released. Even after release, the offender will be subject to the sentence for the rest of his life, and liable to be recalled into detention, or later, imprisonment after he has been released. The purpose of assessing the minimum term is not to define the moment when the custodial part of the sentence will end, but rather to prohibit consideration from being given to release from custody before the specified minimum term has expired.
36. The aggravating features of this murder are obvious, and no less significant for that.
37. This murder involved the death of a physically vulnerable child. The Crown accepts that the killing itself was not premeditated, but nevertheless, the offender targeted Joe at least in part because he was vulnerable, and would make an appropriate victim for a degree of physical and probably sexual abuse intended by the offender. Subject to the limitations of the offender's immaturity, he spent some time extending to weeks rather than limited to days thinking up and eventually implementing a scheme which would persuade Joe to come to his home with him so that he could achieve this purpose. Again on the evidence, it is not possible to conclude that the murder itself was sexually motivated. Nevertheless the sexual misconduct of the offender triggered off a chain reaction which eventually culminated in his homicidal attack on Joe, the purpose of which was to avoid the offender himself being exposed for what he had done to Joe, and no doubt in the offender's mind, to the risk of yet further bullying. Save to note that Joe was attacked with more than one weapon, and the second attack was launched when he was already badly injured from the first attack, the attack itself needs no further description. The violence was horrific and sustained. Joe's physical and mental suffering would have been acute. The offender's efforts at concealment were unsophisticated, and in the end would have come to nothing, but they were nevertheless cold-blooded, and he lacked the compassion to treat Joe's body with the dignity and respect which, if less concerned with his own self-preservation, he should.
38. The features of mitigation are also self-evident. The offender had no history of violence, and he was still under fifteen years of age when he committed the murder. His start in life had been very disturbed, and at the time of his offence he was suffering from a form of mental disorder consequent on that sad, emotionally deprived childhood. These are significant features of mitigation, although we should perhaps remind ourselves that the fact that the offender was aged under eighteen at the relevant time has already been reflected in the selection of the appropriate starting point. The offender's age nevertheless remains a feature because be was significantly under eighteen, and roughly half way between eighteen years and the age when criminal responsibility begins. In addition to these express features of mitigation, the offender was entitled to the full allowance for his early guilty plea. That reflected well on him, and on the basis of the submissions on his behalf to McCombe J, we believe that it is consistent with his expressions of remorse, when they were eventually made, being genuine.
39. After reflecting on all the facts, the judge concluded that the aggravating and mitigating features of the case, including the guilty plea, in effect cancelled each other out, so that the sentencing process culminated where it had originally begun.
40. We have been troubled by this fraught, worrying case. In essence, however, we have come to the conclusion that a number of features of the evidence militate against the conclusion that its aggravating and mitigating features balance each other out. The offender's culpability, and the consequent seriousness of the offence, are undoubtedly reduced by his age and mental illness, but in our judgment there are some striking features of the case which cannot be treated as wholly consistent with the offender's extreme youth. These include the deliberate selection of the victim for the purpose of exposing him to bullying and some form of sexual abuse, the elements of planning, which survived the intervention of school staff on the day of the killing itself, the sustained violence with more than one weapon and the murderous nature of the attack, and finally the calm efforts at concealment are all significant in themselves, but even for an offender of this age, with this offender's disadvantages, taken together they represent a formidable level of culpability and seriousness.
41. In our judgment Mr Brown was right to contend that the appropriate starting point, before credit was given for the guilty plea, was a minimum term of eighteen years. Making the appropriate allowance for the guilty plea, the minimum term is reduced to fifteen years. The term of twelve years was unduly lenient. The allowance for the time spent in custody pre-sentence must continue. Accordingly the Reference succeeds, and in place of a twelve year minimum term, there will be substituted a period of fifteen years.