This judgment was handed down remotely at 10.30am on 9 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
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Lord Justice Stuart-Smith:
Introduction
- On 25 April 2019 at the conclusion of a trial in the Crown Court at Cambridge before HHJ David Farrell QC and a jury, the applicant, who was then aged 18, was convicted of an offence of murder (by a majority of 11 to 1) and a separate offence of having an article with a blade or point. She was sentenced the same day to custody for life for the offence of murder, with a minimum period of 17 years less 121 days spent on remand and qualifying curfew; and to 18 months' detention in a young offender institution concurrent for the bladed article offence.
- She now applies for an extension of time of 717 days and for leave to appeal her sentence, the case having been referred to the full Court by the Single Judge who granted a representation order. In support of her intended appeal against sentence, she applies to adduce and to rely on additional evidence from four medical experts, Professor Forrester, Dr van Brandt and Dr Iankov and Dr Thorp. Dr Iankov gave evidence at trial; Professor Forrester, Dr van Brandt and Dr Thorp did not.
- The present applications were originally listed to be heard at the same time as her application for leave to appeal against her conviction for murder. On 29 June 2023, the full Court (William Davis LJ, Bryan J and HHJ Sloan KC) heard the arguments on conviction but did not have time to deal with the present applications. On 8 September 2023 the Court gave judgment and refused the applicant leave to appeal against conviction ["the Conviction Ruling"]. It therefore became necessary for the present hearing to deal with questions of sentence.
- At this point it is convenient to note that the Conviction Ruling included detailed analysis of the additional evidence upon which the applicant sought to rely. In those circumstances it would be idle for us not to have considered the additional evidence in the context of her intended appeal against sentence. We have therefore read it de bene esse with care and taken it into account in our deliberations and in reaching our conclusions.
- Before the Crown Court the applicant was represented by leading and junior counsel. She is represented before us by new counsel, Mr Ben Cooper KC leading Ms Amanda Clift-Matthews, and solicitors. Before us the prosecution has been represented by Mr Louis Mably KC leading Mr Andrew Jackson. Mr Jackson had represented the prosecution before the Crown Court; Mr Mably had not.
- Put shortly, it is the applicant's submission that the minimum term of 17 years was excessive and should have been in the order of 12-13 years.
The facts
- We take our summary of the facts from the summing up unless otherwise indicated, having read the transcripts of relevant evidence on which it is based. As a preliminary observation, the summing up was carefully structured, clear, balanced and fair. The Judge was astute to put the applicant's case fully and fairly before the Jury, and he succeeded in that aim.
- On 20 October 2018, the applicant went out to a nightclub in Peterborough with her friends, Zofie Fedakova and her boyfriend Peter Csisco, the deceased and her mother, who left the nightclub early and plays no further part in the story. Before going to the nightclub, the applicant, the deceased and the two friends attended the applicant's house where they drank alcohol before heading out. Whilst at the nightclub, the applicant saw an ex-boyfriend who wanted to take her home. The applicant argued with him and was not allowed to re-enter the club. As a result, Zofie, Peter and the deceased also left the club and walked to where the deceased's car was parked.
- The deceased drove. The applicant sat in the front passenger seat. Peter and Zofie sat in the back, with Zofie behind the driver's seat. Sometime after their journey began, the deceased began to drive at an excessive speed, which caused the passengers to panic. The applicant asked him to slow down and eventually, after the applicant began to cry, the deceased slowed down and the car came to a stop at Oakdale Avenue. The applicant got out of the car and ran off. The deceased chased after her. Zofie gave evidence that she saw the deceased grab the applicant by the throat and pull the applicant to the ground. She noticed that the deceased appeared to be fastening his trousers and it occurred to her that the deceased wanted to sexually assault the applicant due to the fact his hand was placed on the zip of his trousers and because he had thrown the applicant on her back on the floor. She and Peter got out of the car and told the deceased to calm down and stop fighting. Things calmed down and they all got back in the car, with the applicant once more getting into the front passenger seat. Before getting in the car, the applicant told Zofie that the deceased had said that he wanted to separate the two women from Peter so that the deceased and his friends could play with them. The deceased laughed when he heard the allegation. Zofie gave evidence that she did not see or hear what was happening immediately before the stabbing because she was speaking to Peter in the back.
- At trial it was the applicant's case that Zofie had given her the knife for her protection shortly before she had used it, which Zofie denied. The prosecution case was that the applicant had brought the knife with her when they left her home. The Jury were appropriately directed about the elements of the offence of having a bladed article and, in that context, heard evidence that she had said to others on two previous occasions that she had carried knives, though this evidence was disputed by the applicant. It is accepted that the jury rejected the applicant's evidence about being given the knife by Zofie shortly before she used it and that, by their conviction of the applicant on Count 2, they were sure that the applicant brought the knife with her when they had left her home.
- Zofie said that, shortly after getting back in the car, she saw the deceased place his hand inside the applicant's top and onto the applicant's breast and saw the applicant throw his hand away fiercely. Zofie gave evidence that she spoke to her boyfriend Peter and then noticed the deceased's hand on the applicant's thigh. The applicant placed her hand on top of the deceased's hand and the next thing she was aware of was hearing a noise like someone hitting someone in the face but not the sound of a slap. (Peter, who said he was not paying much attention to what was going on in the front of the car, described it as a noise like two hands together, or something harder.) The applicant got out of the car and started to scream and run down the road shouting "Let's go! Let's go!". Zofie and Peter got out of the car and followed. When they caught up with the applicant they noticed the applicant was shaking and stammering and then she showed them the bloodied knife. They were unable to calm her down. The applicant said she had stabbed the deceased.
- The applicant's version was that the deceased was being aggressive towards her, pushing her and calling her names. She said she was scared of him and did not know what to do. She showed him the tip of the knife, which she had concealed up the sleeve of her jacket after being given it by Zofie, so that he would think twice about hitting her again. When she showed him the knife he just laughed at her and became aggressive again. She kicked him as she wanted to get away but they had a fight during which she did lots of movements to get him away; but she did not know how she came to stab him. She was not thinking about the knife until she saw it in his chest and removed it. She described a back-handed motion with the knife protruding from her fist.
- The applicant, Zofie and Peter made their way to a local supermarket where the applicant contacted her ex-boyfriend Ahmed, who arranged for a taxi to collect them and take them to his home. Zofie said the applicant put the knife in her bra. They later washed the knife together and the applicant got changed. Before arriving at Ahmed's the applicant said that she needed to go to the police station. A second taxi was later ordered and it took the applicant from Ahmed's house to the police station. The police station was closed, however the applicant spoke to the police over the telephone and was later arrested. At their request, she provided the knife to the police. During her arrest, the applicant showed the police the motion which was used to stab the deceased. The body-worn footage of that was shown to the jury.
- The deceased died of a single wound to the chest which passed through the heart and out again. The pathologist gave evidence that at least moderate force would have been used and agreed that a backhanded motion, as seen in the body-worn footage, could have caused the injury and that one possible explanation could have been down to the movement of the parties involved, with the deceased lunging towards the applicant.
- At trial Dr Ho was called to give evidence by the prosecution and Dr Iankov was called by the defence. Dr Iankov gave evidence first. Their reports and evidence were, inevitably, largely based upon the applicant's account of her past history and their assessment of that history. One of the central features of that history was the assertion by the applicant that she had been raped on 31 May 2015, when she was 14 years old and that this had been an intensely traumatic event for her.
- Dr Iankov said in his report that the applicant satisfied the diagnostic criteria for PTSD and presented with a protracted response to an extremely stressful life event which was of an exceptionally threatening and catastrophic nature. There was significant evidence of repeated reliving of the trauma in intrusive moments (flashbacks). In Dr Iankov's opinion the severe PTSD substantially impaired her mental ability to understand the nature of her conduct (taking the knife), form a rational judgement or exercise self-control.
- In his oral evidence, Dr Iankov gave as his opinion that the applicant was suffering from PTSD arising out of past events with a second wave of PTSD arsing from the murder itself. He gave evidence that she was at the lower end of normal range for intellectual capacity and was educationally deprived and emotionally naïve. He relied explicitly on the alleged rape when she was 14 and the birth of her daughter (after which she suffered post-natal depression) in forming his view that she was at the time of the stabbing suffering from an abnormality of mental functioning that substantially impaired her ability to understand the nature of her conduct and to form a rational judgment or exercise control and that this was a significant contributory factor in causing her to kill the deceased. The circumstances in which she found herself and the effects of the PTSD led her to believe she was about to be raped.
- Dr Ho accepted in his report and oral evidence that the applicant was suffering from PTSD but considered it not to be at the severe end. In his report he said that she did not present with features of severe or enduring psychotic mental disorder and did not present with features of a significant mood disorder or pervasive developmental disorder. She did demonstrate features suggestive of PTSD arising from allegations of being raped when she was 14. However, she was unlikely to present with symptoms in the severe end of the disorder spectrum and had not required treatment for it. She reported that she had had several relationships in her life. She had a 19 month old daughter who lived with her and her mother, although her mother was the main carer. She had had several sexual partners, although she sometimes felt scared and would kick the man out afterwards. Based on the available evidence and his examination, he considered it unlikely that psychiatric defences, including the partial defence of diminished responsibility, were readily available to her.
- In his oral evidence Dr Ho identified a number of features of the evidence that he said contra-indicated a finding of severe PTSD. Amongst those features was a string of messages between the applicant and the alleged rapist before and after the time of the alleged rape, which he considered to be inconsistent with her having suffered a serious life-threatening event. He had made no reference to them in his report. Overall, he said that he could not identify any evidence of a significant abnormality of mental functioning.
- As recorded in the Conviction Ruling at [34]:
"When cross-examined Dr Ho had to concede that his assertion about a single stab wound being inconsistent with loss of control was not contained in his report. It was something he had first said in his oral evidence. Dr Ho agreed that, in the joint statement he had prepared with Dr Iankov, he had said that the applicant was suffering from moderate PTSD at worst whereas in oral evidence he had amended the level to mild PTSD at worst. He claimed that this was because of the Facebook material which had emerged in the course of the applicant's evidence. Dr Ho was shown a police document relating to the allegation of rape which he had had at the time he had prepared his report. It contained a section headed "Facebook undermining factor" which referred to substantial parts of the messaging material including the message from the applicant saying that they had both gone for it and they both had wanted it. Dr Ho was asked to explain why this report had not had the same effect that supposedly had been created by hearing the evidence in court. He said that the full content of the messaging gave a better sense of when the messages were sent and their frequency. Dr Ho was not cross-examined about the apparent inconsistency between what he had said during his evidence in chief and the fact that he had always had sight of the police document. The inconsistency was apparent on the face of his evidence. Dr Ho agreed that the applicant gave a description of flashbacks and nightmares which were symptomatic of PTSD. He thought that it was unconvincing that this was due to rape. His view was that the applicant was dreaming of an unpleasant first sexual experience. He acknowledged that the only specific sexual partner whom he could identify from the applicant's account was the person who had made her pregnant and that this was a one-off encounter."
As the Conviction Ruling noted at [46], Dr Ho's evidence on the impact of the messages was significantly undermined in the course of cross-examination, as the extract set out above demonstrates. What the Jury made of his evidence (and Dr Iankov's) was ultimately a matter for them.
- The Judge summed up the psychiatrists' evidence and was conspicuously thorough in his summing up of Dr Iankov's evidence. He also, and appropriately, summed up the applicant's evidence about the alleged rape in detail, placing it in the context of the psychiatrist's evidence so that the jury were able to relate the one to the other. In summary, she said that she had met a male and they had been friends for about a month. They went to a wooded area where she was given a drink after half of which she began to feel dizzy. The last thing she remembered was opening and closing her eyes and then waking up in the bushes, on her back on the round with no clothes on her lower body and feeling sore in the vagina area. She said she was on her own and bled for a day or two. She then recalled him on top of her. She got dressed and reported the matter to the police the next day. There was no prosecution. She said that for 6 months after the alleged rape she was socially isolated. She had flashbacks that persisted.
- She had been cross-examined on her account, including the Facebook messages to which we have already referred. The Jury had the transcript of the messages. It was and is sufficient to say that they suggested that there had been sexual activity that was consensual (despite her age) and that they do not obviously evidence a sense of trauma as a result of what had happened. In the course of the messages the male apologised in the basis that he had been unable to get it up because he was drunk; and the applicant had said that they had both gone for it and they had both wanted it. The messages remained friendly until the tone changed when there was mention of pictures taken by the male when the applicant was naked. The defence sought to explain the messages by saying that they showed the applicant being groomed. The prosecution accepted that she had gone to the police but suggested that she gave a lying account to the police because the male would not delete the photographs he had of her.
- Dr Iankov had not seen the messages when originally forming his opinion but said that they did not alter his opinion as to the existence of PTSD.
- In summing up her evidence about the alleged rape the judge clearly and correctly identified that the factual dispute was potentially relevant to Dr Iankov's opinion and, more broadly, that if she had lied to the police at the time and to the jury during the trial, it went to her credibility as a whole.
The issues for the jury
- It was the applicant's case that when she stabbed the deceased she acted in lawful self-defence. We have summarised her account above. It included being given the knife by Zofie shortly before the stabbing; and the deceased lunging at her in the course of a struggle and her punching him but forgetting that the knife was in her hand, as a result of which the knife went into his chest. By their verdicts, the Jury plainly rejected that version of events.
- The Jury were also directed to consider the partial defence of diminished responsibility. The applicant's case was that she was suffering from PTSD which substantially impaired her ability to understand the nature of her conduct and/or to form a rational judgment and/or to exercise self-control and caused or was a significant contributory factor in causing her to kill the deceased. Once again, it is plain from their verdicts that the jury rejected the applicant's case.
The procedural history since trial
- The applicant's application for leave to appeal against conviction and the referred application for leave to appeal against sentence were listed on 9 November 2022, when the full Court gave directions. The adjourned hearing of the application for leave to appeal against conviction was heard by a different constitution of the full Court on 29 June 2023, with judgment being given on 8 September 2023. Her application for an extension of time for leave to appeal against conviction was refused. The judgment has implications for the present applications. We therefore deal with it in some detail.
The Conviction Ruling
- There were four grounds of appeal against conviction. The first and fourth are of peripheral relevance for the applicant's case on sentence and may be touched on relatively briefly. The first ground was that the partial defence of loss of control should have been left to the jury. The Court concluded (at [20]) that there was no evidence at all of a loss of self-control prior to or at the time of the stabbing. How the applicant had behaved after the stabbing was consistent with someone having stabbed the deceased in anger and then reacting to what they had done. The Judge was right to conclude that there was no sufficient evidence of a loss of self-control.
- The fourth ground of appeal was that, in directing the Jury on self-defence, the Judge failed to direct them properly in three respects. First, he should have directed them that any finding they might make about the applicant's propensity to carry knives or about her having taken the knife used to stab the deceased earlier in the evening from her home was not relevant to the issue of self-defence. Second, he should have directed them that whether the applicant's intent was to kill or was to cause really serious harm was relevant to the question of whether she had used reasonable force in self-defence. Third, the Judge erred in suggesting that the applicant could have got out of the car rather than stabbing the deceased.
- The Court rejected these submissions. First, if she armed herself before she went out for the evening, that would have said something about whether the use of the knife was deliberate and would have been relevant to the reasonableness of the use of the knife, in particular with regard to the issue of instinctive response. Second, while accepting that if a person intends to do serious harm rather than to kill, that may be relevant to the issue of reasonableness, the Court rejected the proposition that the Judge was required to go beyond the "standard" direction about a person only doing what they honestly believe is necessary to defend themselves. Third, any imbalance caused by the reference to the possibility of the applicant leaving the car was marginal: it did not appear in the direction of law on self-defence (which was not separately criticised) and was an illustrative remark that did not undermine the directions that the Jury had properly been given.
- Grounds 2 and 3 related to the partial defence of diminished responsibility and introduce questions arising out of the medical evidence and issues going more directly to the question of the applicant's culpability. Ground 2 concerned the way in which the evidence relating to the alleged rape in 2015 was handled. It was submitted that, if they wanted to contest that the rape had happened, the prosecution should have made a bad character application, which would have allowed the defence to argue that the messages should be excluded as undermining the fairness of the proceedings. Also, had such an application been made, it would have opened the way for other material to be admitted, including an admission by the alleged rapist that the penetrative sex had occurred, the crime reports relating to the incident, and independent evidence of the applicant's decline after the incident.
- The Court gave Ground 2 short shrift, describing it (at [38]) as misconceived.
"The applicant's case in relation to diminished responsibility depended upon the fact of the rape in 2015. The evidence relating to the incident in 2015 had to do with the facts of the offence of murder with which the applicant was charged: section 98 of the 2003 Act. On the applicant's case, as elucidated by Dr Iankov, she killed [the deceased] because her responsibility was substantially diminished due to PTSD caused by the rape. The bad character provisions in section 101 of the 2003 Act did not apply. Evidence that the incident in 2015 had not occurred as described by the applicant was relevant to the issue of diminished responsibility. It could not possibly have been unfair to adduce such evidence. The other material which it is said could have been placed before the jury had an application under section 101 of the 2003 Act been made was equally relevant once the Facebook material had been admitted – if it was relevant at all."
- In relation to the admission by the alleged rapist that penetrative sex had occurred (at a time when, as Mr Cooper frequently reminded us, the applicant was below the age of consent) the Court said:
"Evidence that the man under investigation had admitted that he had had penetrative sex with the applicant would have taken the matter nowhere. The issue was whether sexual intercourse was consensual."
- We understand this observation to mean that the prosecution was not challenging the fact of sexual intercourse having happened; rather it was the prosecution's case that sexual intercourse (or whatever else may have happened between them) was consensual, that being more important for the foundation of her case that she suffered PTSD as a result of non-consensual sexual intercourse.
- The third ground of appeal was a more broad-based attack on the standing of Dr Ho as an expert witness. For present purposes it is sufficient to record that the Court rejected the submission that Dr Ho was now demonstrably a discredited witness and rejected any suggestion that his involvement in the case rendered the applicant's conviction unsafe. In reaching those conclusions the Court said at [56]:
"Although the psychiatric evidence was a significant feature in the trial, it must be remembered what the evidence as called by the defence was seeking to establish, namely substantial impairment in the applicant's ability to form a rational judgment and to exercise self-control. The evidence of the applicant was the starting point for the jury's consideration of those matters. She explained that she took out the knife in order to deter [the deceased] from attacking her. Pushing and shoving followed during which she stabbed him when she did not realise that she had the knife in her hand. When considering the psychiatric evidence, the jury had to assess the circumstances of the use of the knife as described by the applicant and, to a lesser extent, Zofie and Peter. Those circumstances did not appear to give rise to the elements required for the partial defence of diminished responsibility."
- Finally, at [58]-[62] the Court considered the additional evidence from Professor Forrester, Dr van Brandt and Dr Iankov as follows:
"58. The applicant also seeks to rely on fresh evidence from a consultant psychiatrist, Professor Forrester, a clinical psychologist, Dr van Brandt and a new report from Dr Iankov. Professor Forrester's first report is dated June 2020. It is not necessary for us to rehearse the substance of that report. It does no more than mirror the evidence of Dr Iankov together with some critical commentary on the approach of Dr Ho to the issue of PTSD. This evidence is not fresh evidence. It is merely confirmatory of expert evidence given at the trial. The purpose of section 23 of the 1968 Act is not to permit an applicant to re-run a defence with different expert evidence.
59. Dr van Brandt found that the applicant's intellectual functioning was at a relatively low level. He reached that conclusion in the light of psychological testing. Dr Iankov reached precisely the same conclusion albeit without the benefit of psychological tests. Dr van Brandt's finding on this issue adds nothing to the evidence available at trial. Dr van Brandt also concluded that the applicant was suggestible and compliant. Dr Iankov has provided a further report to explain why this finding would be relevant, namely that it supports the proposition that the applicant would have been susceptible to grooming by the man who raped her in 2015. In our judgment this evidence would have been of marginal significance had it been adduced at trial.
60. Professor Forrester also considered the findings of Dr van Brandt in a report dated February 2021. He said that the findings indicated that the applicant suffers from a mild learning disability. This was of two-fold significance. First, had it been recognised, adjustments could have been made in the course of the trial e.g. the provision of an intermediary. Second, a mild learning disability is a recognised medical condition in respect of which diminished responsibility could have been considered. The issue of adjustments to the trial process is not the subject of any ground of appeal. At no point has it been suggested that the applicant was not able to give a satisfactory account of herself in court or was otherwise unable to participate in the proceedings. Professor Forrester's opinion in relation to any mild learning disability is not developed and not tethered to the evidence in the case. It would not afford any ground for allowing the appeal.
61. Professor Forrester provided a third report dated September 2022. This dealt with the discrete issue of disassociation. In different language he made the same point that had been made at trial by Dr Iankov. The third report is not fresh evidence for the same reasons as apply to his first report.
62. It follows that we do not consider that the evidence from Professor Forrester, Dr van Brandt and Dr Iankov would have affected the outcome of the trial. Thus, it does not afford any ground for allowing the appeal."
- We recognise and bear in mind at all times that these observations were made in the context of the proposed appeal against conviction, and that different and additional questions may be raised in the context of the presently proposed appeal against sentence. In addition to these reports, we have considered the report from Dr Thorp dated 13 March 2024 (i.e. it was obtained after the full Court's adjournment of these applications and was not before the full Court for the Conviction Ruling). We return to this evidence later.
The Judge's sentencing remarks
- As with his summing up, the Judge's sentencing remarks were carefully structured and clear. In the course of his remarks he was true to the verdicts that the Jury had returned and made findings that were relevant and necessary for the determination of sentence. With one exception there is no challenge to his findings: the exception is that the applicant challenges his treatment of the 2015 incident. Otherwise, as became clear during oral submissions, the applicant's essential submission is that the Judge gave inadequate weight to the various mitigating factors that he identified and, as a result, imposed a sentence that was excessive and should be reduced by this Court. We attach his remarks as an Annex to this judgment because paraphrasing them would detract from the logic that appears on longer citation. We have added paragraph numbers for ease of reference. At the end of the passage set out in the Annex, he passed the sentences which we identified at the start of this judgment.
Ground 1: the Judge adopted too high a starting point
- The applicant's first submission is that the starting point of 25 years under paragraph 5A(1) of Schedule 21 of the Criminal Justice Act 2003 ["the CJA"] did not apply. This is said to be because the applicant did not take the knife with the intention of using it as a weapon of attack: rather, she took it for self-protection "just in case" and only used it spontaneously in response to the deceased's unprovoked and unforeseen assault upon her. It is submitted that, even if paragraph 5A(1) applied, the starting point of 25 it is not a rigid one and can only be appropriate if the offence can be regarded as sufficiently serious to justify it.
- Paragraph 5A to Schedule 21 of the CJA was the provision in force at the relevant time. It has now been replaced by Paragraph 4 to Schedule 21 of the Sentencing Act 2020 in materially identical terms. Paragraph 5A provided:
"(1) If—
(a) the case does not [attract a whole life order or a minimum term starting point of 30 years],
(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."
- In our judgment the applicant's submission that paragraph 5A does not apply is unarguable. We accept that a case where the offender takes the knife with them with the intention of using it offensively is in that respect more serious than a case where that intention is absent. However, it is not a requirement of paragraph 5A(2) that the offender to take the knife as a "weapon of attack": what is required is that the offender took the knife to the scene "intending to … have it available to use as a weapon". That intention is present whether the intended use is offensive or defensive; and it is present whether the knife is taken with the intention that it shall be used or with the intention that it should be available as a weapon to use "just in case" there was a need for it to be used. Since it is the applicant's case that she took the knife for her protection (i.e. to have it available as a weapon to use) "just in case" it's use was needed, her case falls within sub-paragraph 5(2).
- We accept that there are significant features of personal mitigation that apply in this case, as we shall outline below and as were recognised by the Judge. They rightly caused the Judge to move down substantially from the starting point of 25 years; but they do not either singly or cumulatively render the offence of which the applicant was convicted insufficiently serious so as to place it outside the range of offences falling within sub-paragraph 5A(2) for which the "normal" view should be adopted. The basic facts are depressingly normal: a person takes a knife "just in case" and then uses it to murder someone. It cannot be disputed that she took the knife with the intention of using it if she thought it necessary. Nor can this case be distinguished from the norm on the basis that the assault on her by the deceased was unforeseeable. There is no basis for a speculation that she applied her mind to having the knife available in specific and limited circumstances: the conclusion must be that she had the knife available against all eventualities, whether she foresaw them or not. We cannot accept that, as a general proposition, what happened and what the deceased did were in any technical or any real sense unforeseeable. As we have said, the basic facts are depressingly normal.
- The applicant's second point on Ground 1 is that the judge did not sufficiently reduce to the starting point to reflect the Appellant's age, her emotional immaturity and the role her borderline intellectual functioning and PTSD played in the commission of the offence. This is an alternative formulation of Ground 2, to which we now turn.
Ground 2: the judge gave insufficient weight to the Appellant's extensive mitigating factors
- The applicant submits that this case is unusual because none of the statutory aggravating factors in paragraph 11 of Schedule 21 of the CJA were present, but all of the mitigating factors except that of mercy killing existed. It is submitted that the Judge failed to take, or gave insufficient weight, to these many mitigating factors.
- Paragraph 11 of Schedule 21 provided a non-exhaustive list of mitigating factors that may be relevant to the offence of murder as follows:
"(a) an intention to cause serious bodily harm rather than to kill,
(b) lack of premeditation,
(c) the fact that the offender suffered from any mental disorder or mental disability which (although not falling within section 2(1) of the Homicide Act 1957 (c. 11)), lowered his degree of culpability,
(d) the fact that the offender was provoked (for example, by prolonged stress),
(e) the fact that the offender acted to any extent in self-defence or in fear of violence,
(f) a belief by the offender that the murder was an act of mercy, and
(g) the age of the offender."
- In addition, the applicant submits that the judge either failed to take account of or gave insufficient weight to the facts that:
i) She was of previous good character;
ii) She had been violently and sexually assaulted by the deceased shortly before she used the knife on him;
iii) She had a history of depression and PTSD;
iv) She had very low intellectual functioning and was extremely compliant;
v) Any sentence imposed on her was likely to weigh more heavily on her given her age, borderline intellectual functioning and emotional immaturity. Dr Thorp's new report says that she is likely to be more vulnerable than others to exploitation in the prison environment;
vi) Even if she had not been "raped" when 14, her medical school and social services records all indicate that her sexual experience in May/June 2014 was a highly traumatic one for her. Though not revealed to the Jury, the alleged rapist had admitted having sexual intercourse with the under-age applicant and taking photographs of her;
vii) The applicant had grown up in an unstable domestic background where there was alcohol abuse and domestic violence;
viii) Her low intellectual functioning and language difficulties made academic education and socialisation very difficult for her and resulted in bullying.
- With one possible exception, it is not arguable that the Judge failed to take these matters into account since he referred to them, albeit concisely, in his sentencing remarks. He referred to the absence of statutory aggravating features at [7] but, as he was entitled and right to do, identified the non-statutory aggravating factors that the killing took place in public, on the street with the car parked in a residential area and in the presence of two witnesses.
- Turning to the Paragraph 11 features, the Judge identified: (a) the absence of intention to kill at [8]; (b) the lack of premeditation at [9]; the applicant's mental disorder at [9]; the fact of the deceased's conduct amounting to "an element of provocation" at [11]; the fact that she was responding to the deceased's assault at [11]; and her age at [1] and [12].
- Going beyond Paragraph 11 the Judge recognised her previous good character at [1] and [13], though describing it as "tempered" by the fact that she had carried knives on two previous occasions – an observation to which we return at [71] below. He took into account that she had been violently and sexually assaulted at [2] and [11] and, though he did not refer to PTSD expressly, he referred to her mental disability and low intellectual capacity and emotional naivety at [9] and [11]. He referred to the applicant's difficult up-bringing, low intellectual functioning and other difficulties leading to her being bullied at [10].
- The Judge did not refer to any additional difficulties that she might encounter in a prison environment because of the features he had identified. In the overall scale of things, and given that he had identified those features, we do not consider that the absence of express reference to difficulties she would experience in prison is a significant omission in the sense of being an omission that may have materially affected the length of the minimum term.
- For these reasons, the applicant's submission that the Judge did not take these various features into account is unarguable. That leaves the submission in relation to what happened to the applicant in May 2015 and what the consequences of that may have been for her. Before us, Mr Cooper's submissions focussed intensely upon what had happened to the applicant in May 2015.
- The Judge referred to the allegation that the applicant had been raped in May 2015 at [5] and [10] of his sentencing remarks. He rejected the applicant's allegation that she had been raped but accepted that there was "some form of previous trauma." He did not purport to provide a full explanation of the nature or consequences of the trauma, though he said that the trauma was "probably the combination of the effect of being moved from Poland, where you were residing as a child, to this country at the age of 12, the bullying that you suffered at school, the post-natal depression that you undoubtedly suffered following the birth of your child and the pressures of trying to integrate into this society."
- As the argument developed, so it became clear that the real issue was not that the Judge had failed to take the events of and after May 2015 into account; rather, it was submitted that the Judge had been wrong to reject the applicant's account to the jury alleging that she had been the victim of non-consensual sexual intercourse. Mr Cooper submitted that there was evidence that should have been but was not put before the Judge and that, if it had been, he must have reached a different conclusion about the nature of the incident and its consequences which, in turn, must have led him to impose a lower minimum term.
- There were two main strands to this submission. First, was reliance upon the medical evidence that had been accumulated since trial. Second, was the contents of the applicant's medical and social records.
- We have referred to the medical evidence at [2] and [36] above. None of it can be described as "fresh evidence" since it could have been adduced at trial and, in large measure, overlaps with and duplicates evidence that was in fact adduced. For example, we agree with the full Court's assessment of Professor Forrester's first opinion that "it does no more than mirror the evidence of Dr Iankov together with some critical commentary on the approach of Dr Ho to the issue of PTSD." Where it goes beyond the evidence that was in fact adduced at trial, the additional material is limited.
- While we note that, for instance, Dr van Brandt carried out psychological testing that enabled him to reach a more quantitative assessment of the applicant's intellectual functioning, it had been Dr Iankov's evidence that she was functioning intellectually at a low level. At [59] of the Conviction Ruling, the Court identified that Dr Iankov commented that Dr van Brandt's report supports the proposition that the applicant would have been susceptible to grooming by the person who was alleged to have raped her; but the Court expressed the view that this evidence would have been of marginal significance if it had been adduced. We consider that observation to be equally apt in the context of the applicant's proposed appeal against sentence. Whether or not she was groomed in the lead up to the alleged rape in May 2015 would not have materially influenced the choice of an appropriate minimum term.
- Professor Forrester, in his second report, expressed the opinion that Dr van Brandt's report indicated that a diagnosis of mild learning disorder should be considered a possibility. If such a diagnosis were made, the applicant might have significant difficulties in communicating so that there may have been a need for adjustments. Also, if she was presenting with a learning difficulty then that is a recognised medical condition in respect of which a potential verdict of diminished responsibility could have been considered. We respectfully agree with the observations of the full Court at [60] of the Conviction Ruling, which we have set out at [36] above. For completeness we also note that the applicant's trial junior counsel in her McCook response said that there were no difficulties during applicant's evidence that caused her any concern about her ability to follow questions and that neither she nor leading counsel considered there was any need for adjustments to be made at trial.
- Professor Forrester's suggestion that a diagnosis of learning disability or intellectual disability might give rise to consideration of a potential verdict of diminished responsibility must now be read in the light of the full Court's rejection of the applicant's appeal against conviction. We respectfully agree with the full Court's observation at [60] of the Conviction Ruling that Professor Forrester's opinion is "not developed and not tethered to the evidence in the case."
- We also respectfully agree that Professor Forrester's third report – on disassociation as a symptom of PTSD – was neither fresh evidence nor evidence that added anything significant to evidence given at trial.
- Turning to Dr Thorp, he is a Forensic Psychiatrist. He was asked by the applicant's current team to provide a report on: (a) whether the applicant has an intellectual disability; (b) how her level of intellectual development could have affected her at the time of the offence, including her ability to process information, foresee consequences, make appropriate judgments, seek alternative forms of resolution and exercise self-control; and (c) whether her intellectual development might mean that a custodial sentence will be more difficult for her than for an average person.
- On the first question, Dr Thorp's answer was somewhat equivocal and was based on Dr van Brandt's opinion that the applicant "was at best of borderline functioning (IQ of 74) but it also remained possible that the appellant's level of functioning was so severe that it was classified as an intellectual disability." (emphasis added). This was consistent with Dr van Brandt's opinion, which was (as Dr Thorp recorded) that her actual level of functioning fell into the lower part of the borderline range. At section 12 of his report he stopped short of opining that she had an intellectual disability, characterising her presentation as "borderline intellectual functioning", which is not a diagnosable order though such individuals "present with impairment patterns almost identical to those with a mild disorder of intellectual development."
- Dealing with the second question, Dr Thorp's opinion was that many individuals with disorders of intellectual development (or those within the borderline range) are more "gullible and naïve, easier to deceive and more prone to acquiescence and confabulation than people of the general population", which can have various consequences. People with low IQ are likely to be less able to foresee consequences of actions and may act more impulsively than other people who have a higher IQ. "It appears likely that [the applicant's] intellectual difficulties could have affected her ability to foresee the consequences of her actions." His concluding opinion on this question was: "It has already been highlighted that [the applicant] was deemed to be more prone to suggestibility and compliance than others and this, combined with her borderline IQ level is likely to have affected her actions at the material time." There is no further discussion of how or to what extent her actions may have been affected or whether there is a rational basis for asserting that her culpability was in fact (rather than in general theory) reduced or to what extent.
- On the third question, Dr Thorp "agree[d] that it is possible that [the applicant] will find being in prison more difficult than someone with a higher IQ and [the applicant] may be more vulnerable to bullying, coercion, exploitation and control by more able peers." However he recorded her statement that she is engaging well and appears to be managing well in prison according to the pre-appeal report. That report states that she "appears to have settled into the regimes and there are a number of notes on her record for positive behaviours for hard work, volunteering to help with tasks outside of her job and showing a very good work ethic. Staff have noted her pleasant and respectful behaviour toward peers and staff and her positive engagement with them …"; and that she "has been making constructive use of her time since sentence and it is very positive that she has maintained her Enhanced status".
- For these reasons we have independently come to the conclusion that the additional evidence from Forrester, Dr Iankov and Dr van Brandt and the report of Dr Thorp (a) do not undermine the Judge's conclusion rejecting the applicant's account of the alleged rape in 2015, and (b) do not materially add to the evidence that was available to the Judge when setting the minimum term.
- The applicant's main attack on the Judge's rejection of the applicant's account of the alleged rape is based upon documentary records, which were said not to have been before the judge. At the time of the hearing it was not certain that the applicant had identified all of the records upon which Mr Cooper wished to rely. The Court therefore directed the applicant to provide a note identifying the documents upon which the applicant relies, with the prosecution having a brief right of reply in writing. The applicant took the opportunity to outline further submissions on the evidence that was before the Judge, which was not our understanding of our direction.
- The evidence that the applicant says was not before the Judge may be summarised as follows:
i) A witness statement from a police officer summarising the course of the police enquiry and involvement was contained in the unused material and contained:
a) Information that on 7 July 2015 police officers attended the home of the alleged rapist and were told by him that he did have sexual intercourse with the applicant and had previously told the police as he was scared;
b) Information that there was a video file of the applicant and the alleged rapist, which was 17 seconds long, showing the applicant awake, smiling and leaning back against the alleged rapist with his hand touching her breast;
ii) The applicant's school records were, we understand, not in the unused material but have been obtained by the applicant's present solicitors. They include:
a) A letter dated 17 June 2015 from the applicant's school to her mother pointing out that the school's expectation was 95% attendance but that the applicant's attendance over the period from 4 September 2014 to 17 June 2015 was 86.5%. The supporting schedule showed a period of absence starting on 3 June 2015 and lasting to the end of the period; and
b) A second letter dated 14 October 2015 from the applicant's school to her mother pointing out that the applicant's attendance over the period from 4 September 2015 to 14 October 2015 had fallen to 14%;
iii) The applicant's social services records, which were contained in the unused material and included:
a) A child protection document in July 2015 after the applicant was referred to child protection services following the report of the alleged rape. There is an account of the incident which is consistent with her account to the police. Her mother is recorded as noting her low mood after the incident;
b) Various documents from September 2015 documenting concerns for her well-being in the wake of the alleged rape. The safeguarding plan was closed in January 2017.
- On the basis of this material, the applicant submits that the Judge was wrong to conclude that her account of being raped was untrue. At its lowest, the evidence is said to disclose offences of grooming and sexual activity with a child under 16, contrary to section 9 of the Sexual Offences Act 2003. Perhaps more importantly, she submits that, whatever in fact happened on 31 May 2015, it is plain that it was traumatic and lead to an immediate deterioration in her well-being, which was reflected in the sudden drop off in her school attendance. Yet the Judge did not refer to any incident in May 2015 or its consequences in his sentencing remarks save to reject her account of being raped. As a result: "… since the Judge disregarded the whole experience in June 2015 as far as PTSD was concerned, this also meant that he did not consider how the effect of being a victim of [the offences committed against the applicant in 2015] may have impacted on the applicant's behaviour at the time of the offence."
- In response, the prosecution make the following short points:
i) The issues of PTSD, trauma and their effects on the applicant were live issues and were litigated at trial;
ii) The competing contentions of the applicant and the prosecution being clearly articulated both for the jury and for the Judge when he came to sentence the applicant;
iii) While the information now relied upon by the applicant supports a finding that there was an offence of rape (as contended by the applicant) or at least offences of grooming and unlawful sexual activity (as submitted by the applicant) there was evidence going the other way, most obviously in the form of the messages in the 24 hours or so after the incident.
- As a preliminary observation, it is right to bear in mind that Dr Iankov gave a fairly detailed account of the applicant's deterioration and symptoms from June 2015 at paragraphs 3.27-3.44 of his report and subsequently in his oral evidence. Similarly, in his report and his oral evidence he gave evidence of the numerous traumatic events and intellectual difficulties affecting her young life over and above what he attributed to the alleged rape as she had explained it to him. Nor was the issue of what happened on 31 May 2015 peripheral at trial. As the Conviction Ruling pointed out, "the applicant's case in relation to diminished responsibility depended upon the fact of the rape in 2015." It was also highly material to her case on lawful self-defence. On the information we have seen, we accept that she maintained her account that she had been raped or, at least, sexually assaulted consistently from when she reported the alleged rape to the police onwards. However, it does not follow as a matter of necessity that her account had to be accepted either by the Jury or by the Judge. Put another way, the documents and further medical evidence upon which the applicant now wishes to rely support her account that she was raped but do not compel its acceptance. It follows that we cannot accept the submission in its boldest form that the Judge was wrong to reject her account. It was a tough decision for the Judge to take; but he had the well-documented advantages that flow from being the trial Judge and this Court is neither entitled nor in a position to overturn his finding. That being so, the criticism that the Judge failed to have regard to the impact of the rape on the applicant's PTSD and her culpability when committing the murder falls away.
- It is submitted that clearly something happened on 31 May 2015. That is so; but once the applicant's account is rejected the basis for a submission that what happened in 2015 had a material impact on her conduct and culpability some three years and five months later is much more tenuous. What the Judge did was to acknowledge a degree of trauma which lowered her culpability for the killing while not providing the partial defence of diminished responsibility: see [10] of his sentencing remarks. In our judgment that was a fair and justifiable approach and the Judge was wise not to try to define the source or consequences of that trauma more precisely. We are far from persuaded that the additional materials to which we have been referred undermine the approach he adopted.
- Finally, the applicant submits that the Judge erred when he said at the end of [13] of his sentencing remarks that: "You are of previous good character but that is tempered by the fact that you had, in my judgment, carried knives before on the two occasions that the jury heard about." It is submitted that taking the two previous occasions into account was an error of principle that led the Judge to give less weight than he should have done to the applicant's previous good character.
- The applicant relies upon R v Canavan [1998] 1 Cr App r 79. The appellant was convicted on an indictment charging him with offences that were said to be representative of other similar offences committed by him but which he had neither admitted nor asked to be taken into consideration. In that context, Lord Bingham LCJ said at 81E-82F:
"A defendant is not to be convicted of any offence with which he is charged unless and until his guilt is proved. Such guilt may be proved by his own admission or (on indictment) by the verdict of a jury. He may be sentenced only for an offence proved against him (by admission or verdict) or which he has admitted and asked the court to take into consideration when passing sentence: see Director of Public Prosecutions v Anderson (1978) 67 Cr.App.R. 185, [1978] A.C 964. If, as we think, these are basic principles underlying the administration of the criminal law, it is not easy to see how a defendant can lawfully be punished for offences for which he has not been indicted and which he has denied or declined to admit.
It is said that the trial judge, in the light of the jury's verdict, can form his own judgment of the evidence he has heard on the extent of the offending conduct beyond the instances specified in individual counts. But this, as it was put in Hutchinson (1972) 56 Cr.App.R. 307 at 309, [1972] 1 W.LR. 398 at 400 is to "deprive the appellant of his right to trial by jury in respect of the other alleged offences." Unless such other offences are admitted, such deprivation cannot in our view be consistent with principle."
- This principle is not in doubt but it has clear limitations. The position is as stated in R v Oakes [2012] EWCA Crim 2435, [2013] QB 979 at [79]:
"Dealing with it generally, it is axiomatic that, provided the verdict returned by the jury or the plea accepted by the Crown has been loyally respected, the sentencing judge is not merely entitled, but required to reflect on and balance all the relevant aggravating and mitigating features of the offence or offences of which the defendant has been convicted. This includes any features of aggravation or mitigation which have emerged during the course of the trial, including the judge's assessment of the personality, character, maturity and attitude of the defendant to the offence. This will often include making findings of fact on disputed points. Such findings may well include, for example, that in the course of the offence of which he has been convicted, the defendant committed other offences; the indictment is not required to be overloaded with charges. Where for example the conviction is for an offence of conspiracy, the judge may need to make findings for the purpose of sentence about which of the overt acts the defendant has been shown to have committed. There will be other situations in which it is conceded that sentence should be passed which reflects offences beyond those charged; the indictment may contain charges which have been treated by consent as samples of a course of conduct, or the defendant may ask the court to take into consideration other specific offences. However, it is equally axiomatic that, situations such as these apart, a defendant cannot simply be sentenced for offences of which he has not been convicted, or on the basis that he has in fact committed them. The ability of the judge to make findings that other offences have been committed does not extend to reaching a non-jury verdict about allegations put before the jury by way of similar fact evidence, at least unless the jury must have been satisfied that they were proved, or unless the defendant has been convicted of them in the past."
- Examples may be multiplied, but the principle applies to prevent a defendant who has pleaded guilty on a basis that has been accepted from being sentenced on a basis that goes beyond his basis and which he has not accepted or of which he has not been convicted: see Oakes [201] EWCA Crim 807.
- We do not accept that the Judge's reference to the two previous occasions of carrying knives falls within the prohibition laid down by Canavan and subsequent cases. Rather, it was a legitimate consideration when addressing the applicant's character. We are also not persuaded that the Judge's reference to the two previous occasions materially influenced the minimum term that he imposed. The evidence was material at trial to establish propensity and thereby assist in proving that the applicant took the knife with her on the night of the murder, which was an important issue in the case. However, once it was decided that she had taken the knife with her on the night of the murder, that was what determined that the case fell within paragraph 5A of Schedule 21 and the carrying of knives on two previous occasions ceased to be of major relevance. In our judgment the Judge was right to use the subtle wording that the two previous occasions "tempered" her previous good character. That language does not suggest a major discounting of the mitigating value of her formal previous good character.
- Drawing these strands together, we are satisfied that the Judge took all material factors into account and did not take into account any matters that he should not have. The question then is whether it can be said that, taking all relevant matters into consideration, the minimum term of 17 years was manifestly excessive such that this Court should intervene and reduce it.
- Ultimately this is a matter of impression rather than of pure mathematics. It is to be remembered that, in addition to falling squarely within paragraph 5A, there were the aggravating features identified by the Judge, which would tend to impose an upward pressure on the starting point. Whether on their own the aggravating features would have justified an upward movement to, say, 26 years is a moot point; but even on the assumption that it would not, the reduction from 25 down to 17 is on any view a substantial downward adjustment which is self-evidently attributable to the mitigating features that the Judge outlined.
- We do not find it particularly helpful to be referred to 2020 Mental Disorder Guideline, not least because it was not in force at the time of sentencing. Even when in force it does not greatly assist in quantifying the effect that should be given to a conclusion that a person's culpability is significantly reduced by their impairment or disorder.
- However we approach it, this was still a heavy sentence for a young person with the applicant's attributes to bear; but on the judge's findings this was a serious crime even after all allowances and mitigation is taken into account. We are ultimately unpersuaded that the sentence imposed by the Judge can be described as manifestly excessive such that we should interfere.
- The end result is therefore as follows:
i) Having considered the additional evidence de bene esse, we refuse the applications to adduce it;
ii) In the light of our conclusions on the merits of the proposed appeal we allow the application for the necessary extension of time and give leave to appeal but dismiss the substantive appeal against sentence.
ANNEX TO JUDGMENT
SENTENCING REMARKS OF HHJ DAVID FARRELL QC
25th APRIL 2019
1. You are 18 years of age and you were 18 years and four months at the time you committed this offence, and were of previous good character. You, on the 20th of October of last year, armed yourself with a knife. In my judgment, on the evidence that the jury heard, you had a knife in your possession when you went out, together with the victim, … and the other two friends, to the nightclub in Peterborough, and you kept it with you.
2. I am satisfied on the evidence that I heard that there was though, undoubtedly an argument later that night, in the early hours concerning the quality of the victim's … driving. That being after you had left the nightclub with him and the other two friends. I'm also satisfied that he assaulted you when you left the car, it having stopped following complaints about his driving, his erratic driving, whilst he was plainly very much under the influence of alcohol.
3. The vehicle stopped in Oakdale Avenue. You left the vehicle. He went after you and he assaulted you. You returned to the car and I am equally satisfied on the evidence that I heard that there was then a further argument, but you then became annoyed, annoyed with him. You wanted his attention and you produced the knife which you had brought to the scene. And you then, in anger, deliberately stabbed him and stabbed him to the chest, intending to cause him, at the very least, really serious bodily harm.
4. As a result of that single stab wound he died very shortly thereafter, a matter of minutes at the most. You, though, got out of the car and fled the scene, together with those two friends that were in the back of the vehicle. Nothing was done to help him. You arranged, through an ex-boyfriend, the obtaining of a taxi which you - which took you to his home address where the knife was cleaned and you changed your clothing. But it's right, and it's to your credit that you then went to the police station, where you gave yourself up, taking the knife and the clothing that you said you had worn to the police station.
5. Although there, when you were interviewed, you gave an untruthful account, claiming that you were acting in reasonable self-defence. The jury rejected that defence and also the defence based on what, in my judgment, was plainly an untruthful account of a past traumatic event involving a false allegation of a sexual offence. Accordingly, the jury rejected your defence of diminished responsibility.
6. I am sure that this is a case where there was a deliberate stabbing of an unarmed young man with a knife that you had taken to the scene. There is, as you have heard, only one sentence that the court can impose. That is, in your case, because of your age, custody for life. However, I must determine the minimum term that you must serve before which you may even be considered for release on licence on parole. In that respect I have to apply schedule 21 to the Criminal Justice Act 2003, as amended. This, as I have indicated, is clearly a case that falls within paragraph 5 (a), in that you took a knife to the scene, intending to have it available to use as a weapon. And you used that knife in committing the murder.
7. Accordingly, the appropriate starting point is one of 25 years. I must then consider the statutory aggravating and mitigating factors set out in paragraphs 10 and 11. It's accepted that there are in fact no statutory aggravating factors, as set out in paragraph 10. Though it's right to say that this was a - a killing that took place in public, on the street, the car parked on the street in a residential area, and in the presence of two witnesses.
8. The mitigating factors are those, and there are a number of them, that are plainly present in this case. As I indicated to your barrister, I am satisfied that your intention, in this case, was to cause really serious bodily harm rather than to kill. I reached that conclusion because this was a single blow. It was, as the pathologist indicated and what was accepted and what you indicated at the scene on the body cam evidence whilst at the police station, a backhanded act. You hit his heart and you realised that when you then pulled the knife out.
9. But the fact is it was a single blow during the incident and it causes me not to be sure that you had an intention to kill, and therefore I sentence you on the basis that your intention was to cause really serious bodily harm. That is the first mitigating factor. The second mitigating factor is that this was not premeditated. The third mitigating factor is that I am satisfied in this case that you are suffering from some mental disability, but clearly falling short of diminished responsibility. That, nevertheless, lowers your culpability.
10. Whilst I am sure that you lied about the previous sexual allegation, I am satisfied that you suffered some form of previous trauma, probably the combination of the effect of being moved from Poland, where you were residing as a child, to this country at the age of 12, the bullying that you suffered at school, the post-natal depression that you undoubtedly suffered following the birth of your child and the pressures of trying to integrate into this society. Whilst they together plainly fell short of being sufficient to satisfy the jury that the defence of diminished responsibility was made out, they together are capable of lowering your culpability for the killing.
11. Equally, I recognise and accept that you are of low intellectual capacity and emotionally naïve. All that reduces your culpability for what you did. Fourthly, I am also satisfied here that there was an element of provocation, in that the victim undoubtedly touched you sexually and was violent to you shortly before he was killed. This is not though a case, in my judgment, of self-defence. There's no reasonable self-defence here when you used a knife, a knife which you had brought to the scene. And you clearly had the opportunity to leave, as you in fact did, or alternatively seek help from your friends who were sitting in the back of the car.
12. And as the jury's verdict shows, this was not a case of self-defence. Notwithstanding that, the conduct of the victim is a relevant consideration and is not based on your evidence alone, but is based upon the prosecution's evidence of the two witnesses sat in the back, Zofie and Peter. Fifthly, finally and most significantly, there is of course your age and immaturity. You are 18 and were only 18 and a third at the time of the act. I accept the submissions of your counsel in respect of what he has put before me concerning the approach of the court in relation to culpability and age. And that factor is a factor that reduces what would otherwise be the sentence in this case.
13. All those factors, taken together, mean that I can substantially reduce the starting point, and I do. But the starting point is a high starting point, because the carrying of knives and the use of knives is something which causes the public significant concern, and those who carry and use knives can expect to receive significant sentences. Had you not have been carrying that knife, you would not be where you are now and [your victim] would still be alive. You are of previous good character but that is tempered by the fact that you had, in my judgment, carried knives before on the two occasions that the jury heard about.
14. Assessing then all the aggravating and mitigating circumstances, the sentence I impose is as follows. …
