Neutral Citation Number: [2009] EWCA Crim 542
No: 2008/3981/A3 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Wednesday, 18 February 2009
 
B e f o r e:
 
LORD JUSTICE THOMAS 
MR JUSTICE BLAKE 
 
MR JUSTICE BURNETT 
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R E G I N A 

v 

MICHAEL SHARP
 
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Mr J Goss QC appeared on behalf of the Appellant
Mr R Wright appeared on behalf of the Crown
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J U D G M E N T
1.	1.1.	LORD JUSTICE THOMAS:  The appellant appeals by leave of the single judge against the minimum term imposed after his conviction for murder on 26th June 2008 at the Crown Court in Leeds before Wilkie J and a jury.  
2.	2.1.	It is convenient first for us to summarise the facts as we understand them.  We wish to record our indebtedness to counsel who have appeared before us today, Mr Goss QC on behalf of the appellant and Mr Wright for the prosecution, for a very full and detailed summary of the circumstances in which the deceased died.  That was not apparent from the papers, but an account was put before us during the hearing which was agreed by both counsel.
3.	3.1.	It is, we think, important before we set out the account to emphasise that this case, truly horrible as the murder was, was opened as a robbery that went wrong.  The circumstances in which that robbery was planned were as follows.  The deceased was a car trader.  He kept a large quantity of cash in his home in a safe.  He had met in January 2008 Miss Foster.  She had a brief relationship with the deceased.  It was evident from what we have read that prior to Miss Foster beginning a new relationship with the appellant, the way in which the deceased had treated Miss Foster was one of exceptional kindness.  That kindness was betrayed in a most brutal manner, as we shall set out, and nothing can possibly excuse the conduct of this woman who was in many senses the instigator of the terrible events that occurred.
4.	4.1.	When the appellant and Miss Foster began the relationship she gratuitously revealed to him that the deceased kept cash at his house and also suggested that drugs were kept there.  After being instigated by Miss Foster, the appellant with two others, Hill and Gill, hatched a plot to rob the deceased.  Miss Foster, not merely content with having instigated it, betrayed the deceased further by providing a key to his house and a code to the burglar alarm.  It truly is shocking to us the depths of the betrayal to which she went.  
5.	5.1.	On 22nd January, a day or so after the relationship had begun between the appellant and Miss Foster, the appellant, Hill and Gill effectively tooled themselves up (to use the vernacular) with masks, gloves and a claw hammer.  The appellant added a knuckleduster to the armoury that they were employing, putting that under his glove.  They set off with the code and a key.  It was clear that the appellant told Miss Foster that he was going to have "a crack" at the deceased for a reason of personal animosity that he apparently held towards the deceased.  
6.	6.1.	Eventually they went to the deceased's house.  They tried the key but it would not turn the lock as there was a key on the inside.  They forced entry into the basement and, using the alarm code, de‑activated the alarm.  The deceased was on the first floor sleeping.  From the basement they proceeded from the ground floor up to the first floor.  It is apparent that the deceased was awakened.  When the appellant led the group up the stairs, there was a confrontation on the landing at the top of the stairs.  From the forensic examination that was carried out it is clear that a blow was delivered by the appellant which missed the deceased.  That is evident from the fact that marks were found in the doorframe and a piece of the plaster from the wall was found embedded in the cut on the deceased’s lip.  
7.	7.1.	It is clear from the forensic examination and the pathology evidence that the first injury to the deceased (that caused bleeding) occurred in the landing area.  A severe blow must have been struck at that stage.  Before the fight and the struggle moved to the bathroom on that floor, it seems clear that blows were inflicted that fractured the deceased’s nasal bones.  This must have been caused by the knuckleduster but one of the other participants must have joined in.  It was not possible to say how many blows were struck at this stage, but the pathology evidence was that there were more than two or, as it was put, several.  
8.	8.1.	From the landing the struggle moved to the bathroom.  It was evident from bloodstains seen in the bathroom on the outside of a small window that the deceased had either tried to escape or called for help.  Heavy bleeding and evidence of the struggle was also found in the bathroom.  From the pathology and other forensic evidence, which matched in some respects the interviews of the other participants, it is clear that the deceased was subjected to a carotid sleeper hold and that must have continued for about 30 seconds of pressure.  It was that which caused the death of the deceased, though death may not have followed for two or three minutes.  That hold also inflicted injuries to the neck to which we need not refer.
9.	9.1.	It is, as far as can be deduced, and this is an important factor we think, that after the carotid sleeper hold had been applied for a duration that caused death, whilst the deceased was still alive he was unconscious.  Whilst unconscious, he was tied up and whilst on the floor he was knelt on, as is evident from the heavy bruising on his back.  The heavy bleeding must have continued as a result of the injuries he sustained.
10.	10.1.	There is evidence that around about 2.00 am the neighbours heard remarks "Get down on the floor", "Where's the safe?" and other remarks to that effect.  This must have occurred when they were in the bathroom.  At 2.06 am the police were called.  The police attended at about 2.13 am.  It is therefore to be deduced that the time this incident occupied was in the order of about 10 minutes.  
11.	11.1.	There was in the papers before us, quite apart from the terrible injuries inflicted by the knuckleduster, some suggestion that the claw hammer (with which those participating in this had set out) had been used.  That was because a halfmoon‑shape injury was found above the deceased's ear.  Tests carried out showed that there was a comparison between the mark and the hammer.  If, however, it had been used, the force was such that it cannot have been that serious because it caused no fracture.  There was also a suggestion that a screwdriver was used.  However, the evidence of the pathologist was that he could not be sure that it had been used to inflict what were marks to the scalp.  
12.	12.1.	We appreciate how greatly distressing this account must be to the deceased's family but we have set it out because of the considerations to which the court had to have regard when arriving at the minimum term.
13.	13.1.	When the police arrived, the participants in the robbery which had resulted in the murder tried to escape.  They were arrested.  It is not necessary to set out any further detail in relation to that.
14.	14.	It is however important for us to set out a little about this appellant.  He is 26.  He had started what we can only describe as a career of offending when he was just under 16.  There were numerous offences of violence and dishonesty.  In 2004 he was given a 30 month sentence for robbery and attempting to cause grievous bodily harm.  At the time that he killed the deceased he was subject to a suspended sentence for drug offending.
15.	15.	The grounds on which this appeal are brought arise out of the judge's sentencing remarks.  They are short.  He said in identifying the aggravating features:
"In this case I find, notwithstanding Mr Goss' able argument, that there were two aggravating features:  First, a significant degree of planning, which involved recruiting a team and ensuring that they were equipped with tools and information, targeting an individual in his home for his money; and, second, subjecting him to a violent interrogation in order to get from him the information you needed to complete the robbery."  
He then referred to the mitigating features, first of all that it was not the intention to kill the deceased, as well as the appellant's relatively young age.  
16.	16.	The ground on which this appeal has primarily been brought is that, although it is accepted that the judge correctly took the statutory starting point of 30 years, the way in which the judge approached the aggravating features was not correct.  It is said that in his sentencing remarks when the judge referred to a significant degree of planning, what the judge must have been referring to, because the words were those in sub‑paragraph (a) of paragraph 10 of schedule 21 of the Criminal Justice Act 2003, was a significant degree of planning or premeditation for the murder.  It seems to us that, as the judge made it very clear that he was satisfied that it was not the appellant's intention to kill, that the judge could not have meant that the words "a significant degree of planning or premeditation" referred to the planning or premeditation of murder.  It perhaps would have been clearer if that had been set out in express terms, but we are satisfied that the judge, when he used those words, was not falling into the error of which Mr Goss QC has complained.
17.	17.	We were told, on enquiry, that it was counsel's recollection that the judge had said he was not taking into account the previous record of the appellant and by that we are sure what he meant was that that was not a material factor in relation to the length of the minimum term that he was setting.  
18.	18.	We have looked, however, at the whole of the circumstances in the light of the overall submission that this minimum term, and minimum term it is, is too long.  As was made clear by this court at paragraph 29 of the judgment in Height and Anderson [2008] EWCA Crim. 2500, the factors set out in paragraph 10 of schedule 21 to the Act are factors that have to be taken into account but not applied inflexibly.  As the court made clear, an inflexible approach would be inconsistent with the terms of the statutory framework.  It is important to look at all the facts and, as the court said there and has said many times since, each of these cases is fact‑specific.  It seems to us therefore that it is right to say that, as Mr Goss QC concedes, the court in sentencing and setting the minimum term can take into account the fact that there was pre‑planning, but pre‑planning for the robbery and not the murder.  It therefore follows that taking into account the significant degree of planning for a robbery must be of a significantly lesser order than a plan to kill; that is a factor that is already allowed for in part in the statute by setting the 30 year starting point.  
19.	19.	In our view the really aggravating feature in this case were the circumstances surrounding the death at sub‑paragraph (c) of schedule 10.  On our first reading of the matter we were concerned we did not have sufficient detail in relation to this.  It is clear to us that although this attack can only be described as vicious and unpleasant, the circumstances in which the death occurred were plainly not intended.  Secondly, it is also clear to us that a significant degree of injury was inflicted after the deceased became unconscious and that the claw hammer and the screwdriver played little (if any) part.  We have also taken into account, in looking at the overall criminality and circumstances of the death, the fact that there was no intention to kill, as we have set out, and the appellant’s relatively young age.  Looking at that and taking into account the appellant's previous convictions, and bearing in mind that the trial judge would have had a much clearer picture than we have had, despite the help of counsel, we nonetheless feel that the minimum period of 27 years (less time on remand) is in all the circumstances of this case too long.  It does not sufficiently reflect, in our view, the fact there was no intention to kill, the way death resulted, the fact (as the prosecution put it) that this was a robbery that went wrong and the fact that a significant degree of violence to which the deceased was subjected occurred after he had become unconscious.  
20.	20.	No term of imprisonment that the court can impose can in any way reflect the sense of betrayal that the deceased's family feels towards Miss Foster who instigated this, nor to this appellant who behaved in a singularly brutal manner.  It is to be remembered, however, that the sentence was and remains a life sentence.  All we are doing is fixing the minimum term - that is the term at which this appellant will be able to go to the Parole Board.  It does not mean that he will be released at that time.  But taking into account, as we must, the full circumstances of the case and the statutory framework, for the reasons we have given we think the minimum term imposed by the judge was too high.  We therefore reduce that minimum term to one of 25 years, less the 153 days spent on remand.  To that extent and to that extent only this appeal is allowed.