No: 200805195 A8 
Neutral Citation Number: [2009] EWCA Crim 1182
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Friday, 22nd May 2009

B e f o r e:

LORD JUSTICE HOOPER 

MRS JUSTICE RAFFERTY DBE 
 
MR JUSTICE CRANSTON 
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R E G I N A 

v 

RICHARD MCGARVEY MARTIN
 
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Mr D P Fisher QC appeared on behalf of the Appellant
Mr C Badger appeared on behalf of the Crown
J U D G M E N T
1.	MR JUSTICE CRANSTON:  In late August of last year, the appellant was convicted at the Crown Court at Lewes.  He was sentenced on count 1, murder, to custody for life, and on count 2, unlawful wounding, to an extended sentence of 5 years.  The total sentence was therefore custody for life.  His Honour Judge Brown, the Recorder for Brighton and Hove, fixed a period of 15 years, less the 295 days spent on remand.  The single judge, Aikenhead J, refused leave.  On 17th February this year, the Full Court granted leave to appeal.
2.	The facts in brief are these.  On an evening in November 2007, Stephen Butler and his girlfriend were having a party in their flat at Horsham.  About 15 to 20 people attended.  A downstairs neighbour of Mr Butler, a young man called Nathan Gray, who was a friend of the appellant, had invited the appellant to be in Mr Gray's flat on the evening.
3.	At some stage, the appellant went upstairs to the party.  He was asked to leave and did so.  In due course, Mr Gray was invited to attend the party and did so accompanied by the appellant.  Some of the partygoers found the appellant's behaviour irritating and he was asked to leave.  He did so and he left on his bicycle.  Within a short time he returned to the party.  He asked the person with whom he had had the disagreement earlier to come outside.  The appellant was told to leave and he did so, again on his bicycle.  By this stage, 15‑year old Richard ("Ricky") Butler, who was Stephen Butler's younger brother, and his friend Christopher Stocker, were sitting on the front doorstep of the flats, accompanied by a girl.  For no reason, Ricky Butler swore at the appellant as he left.
4.	The appellant cycled home and fetched his nunchucks which he had hanging on his bedroom wall for decorative purposes.  He returned within a relatively short time on the bicycle.  He abandoned the bicycle some way from Mr Butler's flat and returned to the front door of the flats, where he attacked Ricky Butler with the nunchucks with one blow.  During the course of the attack, Mr Stocker tried to protect his friend and sustained a fractured finger, a cut and bruising to his head and body.  Ricky Butler staggered back to the flat but collapsed unconscious on the floor.  The emergency services were summoned and he was taken to hospital.  He sustained a severe head injury, from which he never regained consciousness.  Tragically, he died later that day.  The cause of death was a single blow to the side of his head which fractured his skull and caused an injury to his brain.
5.	The next day the appellant was arrested.  In his interview he made no comment, but he said certain things to the police which were consistent with witness evidence at the party.
6.	In sentencing the appellant, His Honour Judge Brown said it was a horrendous, mindless attack on a perfectly respectful 15‑year old boy who was posing no threat to the appellant: 
"The starting point is in fact a period of 15 years.  I have in fact in mind the provision that you were only 18 at the time, you have no relevant previous convictions, and the Crown accept that you had no intention to kill and that your intention was to cause really serious bodily harm.  However, you have not admitted that you intended to cause really serious bodily harm, and this was a case where you armed yourself with a deadly weapon and went around to use it upon a defenceless person.  In those circumstances, I take the view that there is no reason to change the statutory starting point, and the period that I determine is one of 15 years on count 1." 
Although the judge did not expressly say so, we take it that he considered that the appellant returning to his home to collect the nunchucks was the only aggravating feature.  The three mitigating factors which His Honour Judge Brown identified in the passage quoted were the lack of convictions for violence, the intention to cause serious bodily harm rather than to kill, and the appellant's age.
7.	As is also evident in the passage quoted, the learned judge used the 15‑year starting point.  Under Schedule 21 of the Criminal Justice Act 2003, he was entitled to do so since at the time of the offence the appellant was 18 years and 3 months old.  That Schedule also provides that if the appellant had been under 18 when he committed the offence, the appropriate starting point in determining the minimum term would have been 12 years, as distinct from 15 years.  In any event, it is clear from paragraph 11(g) of Schedule 21 that age is a mitigating factor in moving away from these starting points. 
8.	The interaction of these various starting points in Schedule 21 has been subject to consideration in a number of cases.  The leading authority is a judgment of this court: R v Peters [2005] EWCA Crim 605, [2005] 2 Cr.App.R(S) 101.  The judgment was delivered by Lord Judge (as he now is).  At paragraphs 11 and 12 of that judgment, Lord Judge said this: 
"11.  It has long been understood that considerations of age and maturity are usually relevant to the culpability of an offender and the seriousness of the offence.  Schedule 21 underlines this principle.  Although the passage of an eighteenth or twenty‑first birthday represents a significant moment in the life of each individual, it does not necessarily tell us very much about the individual's true level of maturity, insight and understanding.  These levels are not postponed until nor suddenly accelerated by an eighteenth or twenty‑first birthday.  Therefore although the normal starting point is governed by the defendant's age, when assessing his culpability, the sentencing judge should reflect on and make allowances, as appropriate upwards or downwards, for the level of the offender's maturity.  In two of these appeals, the offender was aged 19½ when the offences were committed.  In the third, the offender was 18 years and 2 months.  If the murder which culminated in the death of someone precious to the third offender had happened in the course of a dispute 3 months earlier, she would not quite have reached 18 years.  A rigid application of the starting point in Schedule 21 would mean that the 3 months difference in age should be reflected by a difference of 3 years in the sentence.  Sentencing decisions cannot be prescribed by such accidents of time.  We can illustrate this problem a little further by taking the all too familiar case of a group of youths convicted of murder following an attack on a passer‑by in the street late at night.  They may be 17, 19 and 21 years old.  Normally the 21 year old would be likely to be the most mature.  But there are cases where the 17 year old, although the youngest, is in truth the leader of the group, and the most violent of the three, and the most culpable, who triggered off the attack and indeed inflicted the fatal blow.  It may produce an unjust result if on the basis of his age alone, the minimum term in his case were lower than the sentence on his co‑defendants.  Therefore, in relation to offenders aged up to 21 or even 22 years, the determination of the minimum term in accordance with the legislative framework in Schedule 21 needs to be approached with an acute sense of how inevitably imprecise the statutory criteria may sometimes be to issues of culpability, and ultimately to 'seriousness' as envisaged in s.269 itself.   
12. The first stage in the process nevertheless remains the prescribed statutory starting point.  This ensures consistency of approach, and appropriate adherence to the relevant legislative provisions.  Schedule 21 does not envisage a moveable starting point, upwards or downwards, from the dates fixed by reference to the offender's eighteenth or twenty‑first birthdays.  Nor does it provide a mathematical scale, starting at 12 years for the eighteen year old offender, moving upwards to 13 years for the nineteen year old, through to 14 years for the twenty year old, culminating in 15 years for the twenty‑one year old.  The principle is simple.  Where the offender's age, as it affects his culpability and the seriousness of the crime justifies it, a substantial, or even a very substantial discount, from the starting point may be appropriate.  One way in which the judge may check that the discount is proportionate would be for him to consider it in the context of the overall statutory framework, as if  Schedule 21 envisaged a flexible starting point for offenders between eighteen and twenty‑one.  This would have the advantage of linking the mitigation which would normally arise from the offender's relative youth with the statutory provisions which apply to an offender a year or two older, or younger, and would contribute to a desirable level of sentencing consistency.  Due allowance should then be made for the relevant aggravating and mitigating features to produce the final determination of the minimum term, and thereafter the judge should explain the reasons for the determination in open court." 
9.	Subsequently, this court has considered and reaffirmed the approach in Peters: R v Matthews [2005] EWCA Crim 2399; R v Swellings [2009] EWCA Crim 3249.  We derive from these authorities the principle that although the Schedule establishes a bright line in its application, there should be no sudden postponement or acceleration of a sentence due to age.  In practice, there will be something of a continuum, although as Lord Judge said in Peters it is not possible to apply Schedule 21 in a mathematical manner.  It is not the case that as soon as a defendant turns 18, a minimum term will be automatically 15 years in the absence of any aggravating or other mitigating factors.  A balancing exercise is required, taking into account culpability and the seriousness of the crime, along with the age of the defendant.
10.	Before us today, Mr Fisher QC has contended that there should be a significant reduction in the minimum term in this case.  He has identified a number of features of the attack.  There was one blow to Ricky.  There was no intention to kill, rather an intention to cause serious harm.  The appellant certainly returned home to collect the nunchucks, but that was done in a relatively short space of time, so it could be said that the degree of planning was not significant.  In particular, Mr Fisher QC emphasised the age of this appellant, coupled with the fact, as he put it, that he was a slow thinking and, in that sense, immature 18 years and 12 weeks old young man. 
11.	The prosecution, through Mr Badger in his written submissions, has emphasised the nature of the attack, and in particular that the victim was only 15.  That, in his submission, could be a further aggravating feature.  In addition, he has underlined the victim impact statements of both Ricky's brother and mother, where the impact on the family of Ricky's death is exposed.
12.	In our view, the single judge was correct in characterising this as a wholly unnecessary, mindless and brutal murder of an innocent 15‑year old boy.  The appellant, however, was only 12 weeks over the age of 18.  That he returned with this potentially lethal weapon and struck the blow, albeit with no intention to kill, is certainly an aggravating feature.  Nonetheless, balancing, as we must do, all the factors involved in this case, we differ from the minimum period fixed by this very experienced trial judge.  We would substitute a period of 13 years as the minimum term, less the 295 days spent on remand.  To that extent, we allow the appeal. 
13.	LORD JUSTICE HOOPER:  Mr Fisher, it might be helpful to the appellant if you were to explain how the remaining years which he has to serve before being eligible for parole could be profitably served to assist him in his application.  Perhaps, with your experience, you can make him understand that the more he does no educate himself and improve himself, the more likely his parole officer will be sympathetic to him.
14.	MR FISHER:  That is good of your Lordship to say that.  The parents are obviously thoroughly concerned about their son.  They attended every single day of the trial and they came today and met with me at 9 o'clock this morning so that we could discuss this young man.  Your Lordship's words, I know, will encourage them and him.  Thank you.