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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 >> Wadkin & Anor v R. [2016] EWCA Crim 1047 (22 July 2016) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2016/1047.html Cite as: [2016] EWCA Crim 1047

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IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT MAIDSTONE
HIS HONOUR JUDGE STATMAN
T20157141

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/07/2016

Mr Justice Singh :

Introduction

1. The Court has before it two appeals against sentence brought with the permission of the single judge.
2. In the Crown Court at Maidstone the appellants were jointly charged with the murder of Darren Flynn. On 8^th September 2015, shortly before the start of the trial, the appellant Gomez pleaded guilty to murder. On 18^th September 2015 the appellant Wadkin was convicted by the jury of murder. On the same date each appellant was sentenced by HHJ Statman to life imprisonment. In relation to Wadkin a period of 30 years was specified as the minimum term under section 269(2) of the Criminal Justice Act 2003. The judge imposed a whole life order in respect of Gomez. In each case an appropriate order was made under the legislation relating to surcharges.

The facts

3. The appellants were serving prisoners at HMP Swaleside. The deceased, Darren Flynn, was also a serving prisoner. He was serving an indeterminate sentence, imposed in 2007, for wounding with intent.
4. On 25^th March 2015 a prison officer was approached by the appellants. Wadkin told him that there was a dead body in his cell. He followed them into the cell. Wadkin moved the pillow from the end of the bed and said it was a dead body. The officer pulled back the quilt to find the body of the deceased who was lying face down. There was blood on the bed under his face.
5. The prison wing was placed on lockdown. The appellants were searched. They made a number of admissions to various prison officers. Gomez told Officer Caw that he and Wadkin had stabbed the deceased because he was a "grassing nonce." He told the officer where the murder weapons were. Wadkin told Officer Kinlock that he had murdered "a pervert." He further stated that the deceased got what he deserved and that there was one less "nonce" as a result. Both appellants told Officer Cousins that they were responsible. Gomez also told Officer Barnes that the deceased was not going to be let out anyway. Wadkin told Barnes that the deceased was a paedophile and that he deserved it.
6. Two weapons were found: a knife blade with a home-made handle and a screwdriver-like piece of metal which had a home-made grip handle stuck to it with tape. One of those weapons had been brought to Wadkin's cell by Gomez. The post mortem examination revealed that the deceased had 190 puncture wounds in a variety of places on his upper body. There was clear evidence of extreme pressure, particularly to the sternum where the weapon had passed through the bone. Puncture wounds were evident in the spleen, heart, lungs, liver, chest and neck. The deceased's thyroid cartilage and hyoid bone had been fractured, which was indicative of strangulation. The lack of blood in the organs suggested that the heart had stopped as a result of extreme force before the other organs did.
7. The appellants were arrested. Wadkin made no reply to caution. Gomez replied that he had already done 15 years and it could not get any worse. Both appellants answered no comment in their respective police interviews.
8. Wadkin was born on 10^th August 1982. He had been convicted of 114 offences on 22 occasions. He was first convicted in 1996. He had committed a number of robberies and other theft related offences. In 2011 he was sentenced, after a guilty plea, to an indeterminate sentence for public protection (IPP) for wounding with intent. A minimum term of 4 years was imposed.
9. Gomez was born on 6^th June 1970 and had been convicted of 12 offences on seven occasions. His offending began in 1991 and consisted mostly of theft related offences. In 2001 he pleaded guilty to an offence of murder and was sentenced to life imprisonment, with a tariff of 11 years.
10. In passing sentence for the present offence of murder HHJ Statman noted that the deceased was a loner. There was nothing to suggest, however, that he was a sex offender or an informer. The judge observed that the deceased was subjected to a savage, brutal and frenzied attack in which he was stabbed on at least 190 occasions. Severe force had been used against him. He had no chance to defend himself and he was alive during the course of the wounding. His body was then laid out on the bed. In a chilling fashion the appellants went to prison officers, in a calm and collected manner, and confessed what they had done. The weapon used was designed with one function in mind. It was tailored to cause maximum harm.
11. The judge observed that Gomez had murdered before. In the course of the previous murder he had used a knife to stab his victim. He also observed that the current offence was planned. It occurred in prison. Gomez had previously threatened the deceased. He had shown no remorse. He wanted to ensure that there was one less paedophile on the prison wing.
12. The judge expressly took into account what mitigation there was in relation to Gomez: his age and his guilty plea, which was entered before the jury were sworn in.
13. The judge disagreed with the submission, made on behalf of Gomez, that the seriousness of the offence was not exceptionally high so as to trigger para. 4 of Sch. 21 to the Criminal Justice Act 2003. In his view, the offence did come within the exceptionally high provision because Gomez had murdered before. The judge made reference to the decisions of this court in Attorney General's Reference (No. 69 of 2013) [2014] 2 Cr App R (S) 40 and R v Reynolds [2015] 1 Cr App R (S) 24. He concluded that, despite the guilty plea, the appropriate sentence was a whole life order.
14. The judge noted that Wadkin had been convicted by the jury. He had previous convictions and had been before the courts on numerous occasions for violent offending. In 2011 he was sentenced to IPP for an ugly attack on a taxi driver in which he used a screwdriver as a weapon.
15. The judge took the view that, in Wadkin's case also, the current offence was planned and he had intended to kill the deceased. Wadkin expressed very clear views about those who commit sex offences. He was calm and calculating.
16. However, Wadkin was in a different position to Gomez in that he had not murdered before. The offence fell within para. 5 of Sch. 21 given the "brutality" of the murder. The judge noted that para. 5 is not "a closed category." A life sentence with a minimum term of 30 years was the appropriate sentence.

Material provisions of the Criminal Justice Act 2003

17. Sch. 21 to the Criminal Justice Act 2003 includes the following provisions.
18. Para. 4 provides that:

"(1) If –

(a) the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is exceptionally high, and

(b) the offender was aged 21 or over when he committed the offence,

the appropriate starting point is a whole life order.

(2) Cases that would normally fall within sub-paragraph (1)(a) include –

(a) the murder of two or more persons, where each murder involves any of the following –

(i) a substantial degree of premeditation or planning,

(ii) the abduction of the victim, or

(iii) sexual or sadistic conduct,

(b) the murder of a child if involving the abduction of the child or sexual or sadistic motivation,

(c) a murder done for the purpose of advancing a political, religious, racial or ideological cause, or

(d) a murder by an offender previously convicted of murder." (Emphasis added)

19. Para. 5 provides that:

"(1) If –

(a) the case does not fall within paragraph 4(1) but the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is particularly high, and

(b) the offender was aged 18 or over when he committed the offence,

the appropriate starting point, in determining the minimum term, is 30 years.

(2) Cases that (if not falling within paragraph 4(1)) would normally fall within sub-paragraph (1)(a) include –

(a) the murder of a police officer or prison officer in the course of his duty,

(b) a murder involving the use of a firearm or explosive,

(c) a murder done for gain (such as a murder done in the course or furtherance of robbery or burglary, done for payment or done in the expectation of gain as a result of the death),

(d) a murder intended to obstruct or interfere with the course of justice,

(e) a murder involving sexual or sadistic conduct,

(f) the murder of two or more persons,

(g) a murder that is racially or religiously aggravated or aggravated by sexual orientation, or

(h) a murder falling within paragraph 4(2) committed by an offender who was aged under 21 when he committed the offence."

20. Para. 5A provides:

"(1) If –

(a) the case does not fall within paragraph 4(1) or 5(1),

(b) the offence falls within sub-paragraph (2), and

(c) the offender was aged 18 or over when the offender committed the offence,

the offence is normally to be regarded as sufficiently serious for the appropriate starting point, in determining the minimum term, to be 25 years.

(2) The offence falls within this sub-paragraph if the offender took a knife or other weapon to the scene intending to –

(a) commit any offence, or

(b) have it available to use as a weapon,

and used that knife or other weapon in committing the murder."

The main authorities on Sch. 21

21. In R v Reynolds [2015] 1 Cr App R (S) 24 the judgment of this court was given by Lord Thomas CJ. At para. 5 the court said that it was necessary to refer briefly to the decisions of this court in R v Jones (Neil) [2006] 2 Cr App R (S) 19, where this court (in a judgment given by Lord Phillips CJ) gave guidance as to the application of Sch. 21; and R v Oakes [2013] 2 Cr App R (S) 22, where this court gave further guidance in a judgment given by Lord Judge CJ. The court continued:

"Even though the assistance given in those decisions will be considered by a judge before determining whether a whole life order is required, we would simply emphasise four points.

i) The guidance given in Sch. 21 is provided to assist the judge to determine the appropriate sentence. The judge must have regard to the guidance but each case will depend critically on its particular facts. See Jones at [6].

ii) Where a whole life order is called for, often, perhaps usually, the case will not be on the borderline; the facts will leave the judge in no doubt that the defendant must be kept in prison for the rest of his life: see Jones at [10].

iii) The court should consider the fact that the defendant has pleaded guilty to murder when deciding whether it is appropriate to order a whole life term: see Jones at [15]. The Guideline of the Sentencing Guidelines Council which states (in its 2007 Revision) at para. 6.6.1 'where a Court determines that there should be a whole life minimum term, there will be no reduction for a guilty plea', must be read along with the observations in Jones.

iv) The whole life order is reserved for the few exceptionally serious cases where, after reflecting on all the features of aggravation and mitigation, the judge is satisfied that the element of just punishment requires the imposition of a whole life order: see Oakes at [29]."

22. At para. 6 of its judgment in Reynolds this court noted that other cases which had been cited to it, such as R v Mullen [2008] EWCA Crim 592, merely illustrate the application of the principles to the facts of a specific case:

"Such decisions are of no assistance in determining whether a whole life order is required. In each case the judge must determine by a detailed consideration of all the relevant circumstances whether such an order is required by the application of the statutory guidance set out in Sch. 21 and assistance on the guidance given by this court in decisions such as Jones and Oakes."

23. Reynolds itself was a case in which the defendant had pleaded guilty but was nonetheless given a whole life order. It provides one illustration of the proposition that, as a matter of principle, there is nothing to preclude a sentencing judge from imposing a whole life order even where the defendant has pleaded guilty.
24. Another example of that proposition is provided by the decision of this court in Attorney General's Reference (No. 69 of 2013) [2014] 2 Cr App R (S) 40, in which the judgment of a five member court was given by Lord Thomas CJ. In that case the sentencing judge had imposed a minimum term of 40 years on the defendant, who had pleaded guilty to a second murder. This court held that that sentence was unduly lenient. This court held that the sentencing judge had misunderstood the effect in law of the decision of the European Court of Human Rights in Vinter v United Kingdom (2012) 55 EHRR 34. Having considered all the circumstances, this court concluded that the case was one which fell into the exceptionally high category and the requirements of just punishment and retribution made a whole life order the right penalty. The only mitigation was the defendant's guilty plea but that was not sufficient to warrant any other order.
25. In Oakes, this court, in the judgment of another five member court which was given by Lord Judge CJ, repeated at para. 26 what has frequently been emphasised by it:

"It is … clear from a series of decisions in this court that the statute does not create a sentencing straitjacket, nor require that a mechanical or arithmetical approach to the problem of the assessment of the minimum term may be taken."

The court went on to say, by reference to its earlier decisions, that there can be no question of a mechanistic filling in of "tickboxes" and unconsidered assignment of cases into compartments. At the end of the day the sentencing judge must achieve "a just result."

26. At para. 29 this court said:

"The result is that the whole life order, the product of primary legislation, is reserved for the few exceptionally serious offences in which, after reflecting on all the features of aggravation and mitigation, the judge is satisfied that the element of just punishment and retribution requires the imposition of a whole life order. If that conclusion is justified, the whole life order is appropriate but only then. It is not a mandatory or automatic or minimum sentence."

27. In Jones this court, in a judgment given by Lord Phillips CJ, said at para. 10:

"The scheme of Sch. 21 is that the judge first determines the starting point and then considers whether it is appropriate to adjust the sentence upwards or downwards to take account of aggravating or mitigating factors. This approach is manifestly not possible in respect of a whole life order. A whole life order should be imposed when the seriousness of the offending is so exceptionally high that just punishment requires the offender to be kept in prison for the rest of his or her life. Often, perhaps usually, where such an order is called for the case will not be on the borderline. The facts of the case, considered as a whole, will leave the judge in no doubt that the offender must be kept in a prison for the rest of his or her life. Indeed if the judge is in doubt then that may well be an indication that a finite minimum term which leaves open the possibility that the offender may be released for the final years of his or her life is the appropriate disposal. To be imprisoned for a finite period of 30 years or more is a very severe penalty. If the case includes one or more of the factors set out in para. 4(2) it is likely to be a case that calls for a whole life order, but the judge must consider all the material facts before concluding that a very lengthy finite term will not be a sufficiently severe penalty."

28. On the facts of Jones that too was a case in which the defendant had pleaded guilty. In fact he had made it plain from the earliest opportunity that he would be doing so. It was submitted on his behalf to this court that the judge had given no reason for giving no effect to the guilty plea and that he should have given credit for it by imposing a term in excess of 30 years but one that fell short of a whole life order: see para. 75. This court rejected that submission for the following reasons, at para. 76:

"There is a simple answer to this submission. Mr Richardson accepted that a murder might be so heinous that a whole life term would be appropriate despite a guilty plea. He even conceded that this might be such a case. That concession was realistic. The facts of these four murders are so horrific that a whole life order was inevitable, guilty plea or no. No one knowing the facts of the case could be in any doubt as to why the judge had given no effect to the guilty plea. …"

The appeal by Wadkin

29. On behalf of Wadkin Ms Zimbler submits that the sentencing judge was wrong to impose a minimum term of 30 years. She submits that this case should not have been regarded by the judge as falling within the category whose seriousness is "particularly high", so as to bring it within para. 5 of Sch. 21. She argues that there is nothing in para. 5(2) which states that a "brutal" offence falls within it.
30. We reject that argument. Ms Zimbler is right to point out that this case does not fall into one of the categories expressly set out in para. 5. However, that list is not an exhaustive one. In our judgment, all that the sentencing judge was doing, when he said that the case was particularly serious because it was a "brutal" one, was giving his description or assessment of the seriousness of this offence. He did not intend to use the word "brutal" in any technical sense as if he were creating a new category for the purposes of para. 5. He was well aware that the list of categories set out expressly in para. 5 is not a "closed" one. Having been the trial judge and having heard the evidence, he was perfectly entitled to reach the conclusion that the offence was sufficiently serious to bring it within para. 5.
31. Next Ms Zimbler submits that the sentencing judge in effect doubled the appropriate minimum term from a starting point of 15 years. Although she accepts that there were aggravating features in this case which justified some increase from that starting point, she submits that it was wrong to double it. In that context she relies on the decision of this court in R v Christopher Duncan [2007] 1 Cr App R (S) 26. In particular she relies on a passage in the judgment of the court, given by Gibbs J, at p. 139. However, in our view, this court was not seeking to lay down any general principle in that case. Like so many decisions, that case provides an example of the application of the principles in practice. We have set out the applicable principles earlier in this judgment. Each case then turns on its own facts.
32. Further, Ms Zimbler reminds this court that "a starting point is not the same thing as a finishing point"; and that it is important to avoid major differences in sentence based on fine distinctions: see R v Paul Dillon [2015] EWCA Crim 3, at para. 32(c), in the judgment of the court given by Bean LJ. In that case the court was addressing the provisions of para. 5A of Sch. 21. The court emphasised, as it has on previous occasions, that to make a distinction of 10 years in the minimum term between the case of a man who kills his partner with a knife from the kitchen of their home and a man who kills his partner with a knife which he bought on the way home would not represent justice in anyone's assessment. That is plainly right but we derive no assistance from that when it comes to the present case. As we have said, each case depends on its own facts.
33. Finally Ms Zimbler submits that, on the evidence at the trial, the judge was wrong to conclude that Wadkin had planned the murder and thus the offence was premeditated so far as he was concerned. She submits that the evidence clearly showed that it was Gomez who had made a previous threat to the deceased and had called him a "pervert and a grass." She also submits that the only evidence relating to Wadkin in this regard was abandoned by the Crown after the relevant witness had given evidence; indeed the judge directed the jury to disregard his evidence.
34. We reject those submissions. The judge was well placed, having been the trial judge, to make the assessment of fact which he did. He was certainly entitled to form the view that this horrific murder must have been planned and that Wadkin played an important part in that plan. It should not be forgotten that the deceased was killed in Wadkin's cell.
35. Taking all the circumstances into account, we have come to the clear conclusion that the judge was entitled to impose the minimum term of 30 years in this case. That sentence was neither wrong in principle nor manifestly excessive.

The appeal by Gomez

36. On behalf of the appellant Gomez Mr Vullo QC makes the following submissions.
37. First he submits that, although the murder in this case was serious enough to justify a starting point of at least 25 years (on the ground that a weapon was taken to Wadkin's cell by Gomez and used to commit the murder) or perhaps even 30 years, it was not sufficiently "exceptional" to justify a whole life order. In this context he submits that such a conclusion is "self-evident" by virtue of the fact that the minimum term imposed on Wadkin was 30 years. However, in our judgment, that is to leave out of account the crucial fact that Gomez already had a previous conviction for murder, whereas Wadkin did not. The clear terms of Sch.21 make that an important point of distinction, at least "normally." Mr Vullo is correct to point out that there is, as he put it, no automatic "two strikes" rule in this context, but, nevertheless, Parliament has suggested a starting point of a whole life order which will normally apply in such cases. The judge cannot be criticised for adopting that approach. Indeed, in our view, he would have been wrong not to do so.
38. Secondly, Mr Vullo submits that the previous murder which had been committed by Gomez was at the relatively low end of seriousness, accepting that all murders are serious offences. He suggests that the fact that a tariff of 11 years was imposed after a guilty plea is an indication of that. We are doubtful about whether that in fact is the case, having regard to the fact that the sentence was passed before the 2003 Act came into force. In any event we do not consider that it makes any material difference to the appropriateness of the whole life order which the judge passed in the present case. That depended on two crucial features of this case: first, that the appellant was already serving a sentence for murder and, secondly, the brutal circumstances of the second murder.
39. Thirdly, Mr Vullo submits that this was a case in which the appellant's guilty plea was such that some credit ought to have been given for it. This was the primary focus of Mr Vullo's submissions before us. Mr Vullo fairly accepted that the fact of a guilty plea does not preclude the imposition of a whole life order as a matter of principle. Clearly that is right in the light of the authorities which we have cited.
40. However, Mr Vullo submits that, in a case where the court has some discretion to exercise, the fact of a guilty plea should be taken into account and may tip the balance against the imposition of a whole life order. He submits that in this case that it was should have occurred. Fairly, he does not go so far as to say that the judge could not have exercised his discretion as he did. In our judgment that is a very significant concession and one that is rightly made.
41. In developing his submissions Mr Vullo points out that there might well have been proper grounds for Gomez to maintain a not guilty plea and require there to be a trial, with the attendant expense and also anxiety and upset which that would have caused to the family of the deceased and others. He reminds this court that the sentencing judge himself took the view that there was some concern to be expressed over the admissibility of the confessions which Gomez made initially to prison officers: see his sentencing remarks, p.8F-G.
42. In our judgment, the sentencing judge cannot be criticised for having decided, after consideration of all the circumstances of the case, including the fact of Gomez' guilty plea, that the case was sufficiently serious to require a whole life order. He reminded himself of the relevant principles by reference to the main authorities in this area. He expressly took into account the fact of Gomez' guilty plea.
43. At the end of the day the fact is that this was a very serious case indeed. It was a horrific murder which had been planned and took time to commit. It took place in prison, a setting in which other prisoners are vulnerable. Even the circumstances of the appellant's confession were, as the judge said, chilling. It was not said in remorse but in defiance, to show the prison officers what could be done under their noses. In our judgment, the judge was perfectly entitled to take the view that the requirements of retribution and deterrence were such that a whole life order was required in this case, despite the guilty plea.

Conclusion

44. For the reasons which we have given both of these appeals against sentence are dismissed.