Neutral Citation Number: [2009] EWCA Crim 1302
Case No. 2008/06063/A6
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Wednesday  10 June 2009

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)

MR  JUSTICE  COLLINS

and

MR  JUSTICE  OWEN
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R E G I N A

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ANTHONY  FRANCIS  MORLEY
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Mr P Greaney appeared on behalf of the Appellant

Mr R Mansell QC appeared on behalf of the Crown
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J U D G M E N T

THE LORD CHIEF JUSTICE:  
1.  Anthony Morley is 36 years old.  He has made previous court appearances but they are irrelevant to the sentence which we are now considering.

2.  On 20 October 2008, at Leeds Crown Court, following his conviction by a jury of murder, the appellant was sentenced by His Honour Judge Stewart QC to imprisonment for life.  The period of thirty years' imprisonment was specified as the minimum term under the Criminal Justice Act 2003.  An appropriate order was made that the days spent on remand in custody should count towards sentence.  The appellant appeals against sentence by leave of the single judge.

3.  The appellant was a chef.  He was described at trial (both in his own words and by others) as being of conflicted sexuality.  He had been involved in sexual relationships with both men and women.  According to his evidence, he had been raped at the age of 17 by an older man who had been his employer.  That event had had a profound effect on him and on his own view of his sexuality.  

4.  The employer gave evidence at trial.  He accepted that he had engaged in homosexual activity with the appellant, but he asserted that this had happened after the appellant was 18 years old and that the activity between them had been consensual.

5.  The deceased was homosexual by orientation and comfortable with his own sexuality.  The appellant had met him a number of years prior to the killing.  The two men knew each other as acquaintances.  A month or so before the killing the appellant had met the deceased by chance in a gay bar in Leeds.  He went back to the deceased's home.  They "kissed and cuddled", but their sexual activity developed no further on that evening.  The appellant slept on the sofa and the deceased slept in his bed.

6.  Thereafter, the appellant and the deceased had limited contact by sending text messages.  On 23 April 2008 a series of text messages of a flirtatious nature were exchanged.  In one the appellant spoke of his wish that things should be taken slowly.  They arranged, as the appellant accepted at trial, a "date" for 23 April 2008.  In accordance with their agreement, they met in Leeds at about 5pm.  The appellant had spent the earlier part of the afternoon drinking with a friend.  The appellant and the deceased then had a drink.  According to his evidence the appellant, who was an experienced drinker, had about six or seven pints of beer.  After that they went back to the appellant's home.

7.  Once there, the appellant cooked a meal.  They drank two bottles of wine and a number of cans of beer.  There was some "kissing and cuddling".  They then went to bed in order to watch the film "Brokeback Mountain".  According to his evidence the appellant maintained that, prior to going to bed with the deceased, he had received his assurance that things would be taken slowly.  They had gone to bed on the basis that there would be no sexual activity.

8.  The appellant's evidence was that later that night he woke to discover the deceased performing oral sex upon him.  The scientific evidence showed the deceased's DNA on the appellant's penis and was consistent therefore with oral sex.  The appellant felt betrayed because of the earlier promise to take things slowly.  He went downstairs to calm himself.  Having calmed himself, he recalled returning upstairs.  He said that he had no recollection of events until he came around as a result of cutting his own finger while stabbing the deceased in the course of a ferocious attack.

9.  The trial judge did not see the way in which the evening developed in the same way.  In the course of his sentencing remarks he observed that the deceased was not able to give his own version of events but that if he had been he would have pointed to a number of factors: that it was the appellant who had texted him and invited him to dinner; that it was the appellant who had bought the drink which they both drank to excess; that it was the appellant who had cooked the meal for the two of them; that the appellant had engaged in kissing and cuddling downstairs; that it was the appellant who, having invited the deceased to share his bed, took off his own trousers and tee-shirt and got into bed wearing only his underpants; and that it was the appellant who had kissed and cuddled the deceased in his bed.  The judge continued:

		"He would have said to this court that this was not a case of betrayal, that everything he did you consented to, if not expressly, impliedly.  You made the running as much as he did."

Those findings are important.  

10.  The evidence of the pathologist revealed that the throat of the deceased had been cut by the appellant while the deceased lay asleep.  Thereafter, the deceased was stabbed many times.  Following his death, sections of his flesh were removed from his breast and his thigh.  Some of that flesh was seasoned with herbs and cooked with olive oil in the kitchen downstairs.  A chewed piece of flesh was later found in a waste bin in the kitchen.  The appellant's DNA was found on that chewed piece of flesh.

11.  At trial the appellant accepted that he had killed the deceased, and that after his death he had removed sections of flesh from the body, cooking part of it and sampling it before spitting it out.  He maintained that he could not recollect killing the deceased or his subsequent conduct in removing, cooking and sampling the flesh.  His acceptance of what he had done was based on the acceptance of the evidence that he had done it.

12.  After the killing the appellant left the house.  In dressing gown and slippers he went to a nearby takeaway and asked for the police to be telephoned.  He waited for the police.  When they arrived he told them that he had killed the deceased because he had been raped.  That was a reference to his assertion at trial that he had been raped when a younger man by his former employer.  He also referred to having asked the deceased to take things slowly.  He said that he had hurt his finger.  He thought that he had done so when his hand slipped on the knife as he was putting it into the deceased's chest.  He added that the rib cage is "hard to get through especially from the back, harder than you think".

13.  The defence of provocation was rejected by the jury.  The appellant relied on medical evidence to demonstrate that his responsibility for his actions at the time of the killing was diminished.  Again the jury did not accept that contention.

14.  A psychiatric report before the court indicated many of the matters to which we have referred in the course of our analysis of the facts.  The appellant denied any interest in, or use of, material relating to violent or sadomasochistic matters.  However, the psychiatrist noted that he had expressed an interest in a website which showed photographs and news relating to violent fatalities, murder, suicide and other bizarre events.  He noted that witness statements referred to the appellant's use of weapons and that the deceased (according to the appellant) was allegedly aroused by knives.

15.  The psychiatric report which formed the basis of the diminished responsibility defence noted that there was no evidence of a personality disorder, or that the appellant had ever suffered from an episode of mental illness.  According to Professor Eastman, he was clearly disturbed in his psychological functioning and conflicted about his sexuality.  There was no evidence to suggest any inherent cannibalistic interests.

16.  In his sentencing remarks the judge described this as 

		"a cold-blooded, savagely executed murder, carried out by cutting his throat as he lay in your bed and, when he fell to the floor and you stabbed him repeatedly and ferociously, he died."

The judge referred to the cannibalistic elements of the offence and said:

		"All this you maintain because of your conflicted thoughts about your sexuality and his taking things too quickly."

The judge referred to evidence that the appellant could not come to terms with the fact that he derived sexual satisfaction from homo-sexual activity.  The judge was dubious whether that was an explanation for earlier violence.  He referred to an incident where the appellant had taken a meat cleaver to his former lover of five years, and he had only just missed cutting that man's head open because he slipped while in drink.  That incident was followed by the appellant retreating to his bedroom and trashing it.  When the ambulance arrived, he threatened the paramedics with an air rifle so that they called the police.  

17.  The judge added that the conflicted sex life of the appellant did not explain why he had taken an axe to his own bedroom door in the weeks before the killing.  All of this material emerged during the course of the trial.  

18.  The judge concluded that all that behaviour, as well as the instant murder, demonstrated that when in drink the appellant was highly dangerous.  He accepted that when sober the appellant was a decent, caring man with many qualities, including the ability to work hard.  The judge noted the deceased's lack of difficulty with his own sexuality, the absence in the deceased of any violent streak, and the fact that he was "outwardly gay and proud of it".  He enjoyed his life to the full.

19.  When he came to decide the minimum term to be served by the appellant before parole could be considered, the judge observed that this was a murder aggravated by the appellant's sexual orientation. Having considered the aggravating and mitigating features, he concluded that the appellant's gruesome conduct after the death and the destruction of the body would be taken into account in the context of his conclusion that this was a particularly serious murder which merited a starting point of thirty years.  He wished to avoid double counting against the appellant.

20.  The submission made to this court in a clear and succinct argument advanced by Mr Greaney on behalf of the appellant is that the judge was wrong to take a starting point of thirty years; that under Schedule 21 to the 2003 Act the starting point should have been fixed at fifteen years, with an appropriate increase to allow for the events which followed the killing; but that the minimum term should not have ended up as a sentence of thirty years' imprisonment.

21.  There is force in the submission that this could not be described directly as a case in which the appellant's conduct fell within the categorisation in paragraphs 5(2)(e) and (g) of Schedule 21.  However, it was accepted, and rightly so, that there was a sexual background to the killing, identified in the way in which the appellant was deeply troubled by his own sexuality and discomfited (to put it as low as we can) by the fact that the deceased was entirely at peace with himself over his own sexuality.

22.  The question we must ask ourselves is whether the judge was right to reach the conclusion that this murder should be treated as one of a particularly high level of seriousness, thus making thirty years the appropriate starting point.  We have referred to the way in which the judge addressed the issue of sexual orientation.  Taken on its own, we should be inclined to the view that the submission on behalf of the appellant was correct.  However, the question for us is not whether the judge was in error in the way in which he decided that the sexual element of this case should be applied in the context of the Schedule, but whether the judge was in error to conclude that this was a case of a particularly high level of seriousness.  The nature of the attack and the sexual element to it is a significant feature.  The sexual background which culminated in this killing cannot be ignored.  The attack was one of extreme ferocity following sexual activity, about which there could be no final conclusion, but about which the judge indicated that he did not accept the appellant's version.  Sexual orientation was a factor in this case.  The death followed sexual activity in which the appellant decided that he should punish an individual who was at peace with his own sexuality.  In addition to the ferocity of the killing and the circumstances in which the deceased's throat was cut, there was an element of clear deliberation.  Following the sexual activity, the appellant went downstairs and calmed himself.  He armed himself with a knife which he, as a chef, had the expertise to use in the way in which it was used, first to cut the deceased's throat, and then to stab him repeatedly, notwithstanding the difficulties which he explained when he was questioned about the incident after he was arrested.  Having done all that, there is the dreadful element of the way in which the body of the deceased was desecrated after death.

23.  Desecration in circumstances like this which involve not only desecration but cannibalism, is not a feature expressly identified in Schedule 21.  However, in our judgment it is a feature which normally would fall, and in this case certainly does fall, to be identified as a profoundly significant feature of seriousness which would justify bringing the case into the particularly high level of seriousness, assuming that all other aspects of the case were equal.  We emphasise (and it was accepted, rightly) that the list of features identified in paragraphs 4 and 5 of Schedule 21, as well as the list of aggravating and mitigating features in paragraphs 10 and 11, are not conclusive, nor exclusive.  The reality is that, however comprehensive legislation relating to sentences may seek to be, it cannot ever cover all the many different facets of human criminal behaviour which sentencing judges have to face and take into account.  The question is not whether paragraph 5 of Schedule 21 applies, but whether in all the circumstances this was a case of particularly high seriousness.  In our judgment it was such a case.  The starting point of thirty years was the right starting point.  Although we accept part of the criticism of the way in which the judge approached his sentencing decision, we have reached the same conclusion (albeit by a different route).  In those circumstances the appeal will be dismissed.

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