No: 201102033 A3 
Neutral Citation Number: [2011] EWCA Crim 2256
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Friday, 23 September 2011

B e f o r e:

LORD JUSTICE ELIAS 

MR JUSTICE EADY 
 
MR JUSTICE MACDUFF 
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R E G I N A 

v 

MARTIN BROWN
 
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Mr C J Hudson appeared on behalf of the Appellant
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Judgment
1.	LORD JUSTICE ELIAS:  On 7 February 2011 at the Crown Court at Preston before Ryder J, the appellant pleaded guilty to attempted murder on re‑arraignment.  He was sentenced on 18 March 2011 to life imprisonment.  The period of 10 years less 241 days spent on remand was specified as the minimum term under section 82A of the PCC(S)A 2000.  He now appeals against sentence by leave of the single judge.  
2.	The facts are these.  The complainant, Ms Veasey, was a prostitute who worked for an escort agency in Blackpool.  On the evening of 18 July 2010, the appellant rang the agency and asked for an escort to be sent to his address.  Ms Veasey accepted the appointment.  She had worked for the agency for some years and had provided these services to the appellant before.
3.	She went to his address.  The appellant was told there would be some delay because she was not on the premises when he rang, and it appears that he became rather agitated and rang twice to check that she would turn up.  She duly arrived at close on 10.00 pm at his flat, which was over some shops. He gave her the option of locking the door or not and she asked for it to be locked.  They then went into the bedroom and he paid the agreed fee.  She undressed, leaving her clothes on the floor, and produced a condom.  After some moments, they proceeded to intercourse.  Apparently, it was the victim's practice during intercourse to close her eyes, and she did that on this occasion.  
4.	After about five minutes, she felt something sharp pressing into her neck and she saw that it was the appellant holding a knife, with a blade about 8 or 9 inches long, with both hands over her throat.  At that stage his penis was still in her vagina.  She not unnaturally struggled to push the knife away from her neck.  During the struggle the appellant fell to the floor at the side of the bed.
5.	Fearing what he might do, Ms Veasey grabbed the blade.  She pulled the knife out of his hand and ran out of the flat naked, screaming for help.  She was carrying the knife.  A neighbour saw her covered in blood.  He called the police.  Meanwhile the appellant had also contacted the emergency services and told them that he had just tried to kill somebody by slitting her throat. 
6.	Ms Veasey suffered a deep laceration to her neck.  She was taken to hospital.  The wound was between 12 and 15 centimetres long and required significant stitching.  She also had injuries to her hands.  She was left with a permanent scar to the neck and has been deeply affected psychologically by this attack.  She has difficulty in going out.  She says she feels a prisoner in her own home.  Her sex life with her partner has been adversely affected and she has developed a fear of knives.
7.	The appellant was arrested.  When interviewed, he provided a written statement in which he admitted causing the injury, but at that stage he claimed it was accidental.  He said he kept the knife under his pillow for self‑defence because he had twice been burgled by people trying to get into his flat.  He was moving the knife because he did not want Ms Veasey to be harmed, but when she had opened her eyes she had panicked and this led to a struggle in which she was injured.  Subsequently, of course, he admitted that he had attacked her and the nature of the offence necessarily involved the admission that he intended to kill.  The basis of his plea was that it was not a pre‑planned attack, it was spontaneous.  He had not taken the knife to the bed, but it occurred when he saw the knife which he did keep for protecting himself from burglars.  
8.	The judge had before him two reports.  First, there was a psychiatric report from a Dr Norris dated 31 January 2011.  She stated that he suffered from alcoholic dependence syndrome and narcissistic personality traits.  She said he had no insight into his problems and sought to minimise his alcohol intake.  He was unlikely to respond to treatment.  He had some antisocial personality traits and posed a moderate risk of violence to others.  He had a negative attitude towards women and did not show any remorse.  He tended to blame others for his problems.  She specifically concluded that it is said he posed a moderate risk of violence to others, particularly women.  She thought that future partners were particularly at risk.  
9.	There was also a pre‑sentence report in which the probation officer also concluded that the appellant posed an indiscriminate risk of harm to females, and in particular those with whom he may enter a relationship.  The conclusion, therefore, was that there was a significant risk of serious harm and that the criterion of dangerousness was satisfied.
10.	The judge also had the antecedents of this appellant.  They did not demonstrate any violence as such in his history.  He had some relatively minor convictions of obstructing a constable; breach of a non‑molestation order; pursuing a course of conduct which amounted to harassment; and certain driving offences.  There was some evidence of domestic abuse, but oral rather than physical.
11.	The judge set out the background to this offence in his summing‑up remarks.  He noted that there was no history of neglect or abuse in the appellant's background, but that he suffered from alcohol dependence syndrome.  He referred to the observation in the psychiatrist's report that he lacked victim empathy or remorse.  He considered that the appellant's history of violence towards women was a concern, and he referred to the probation officer's conclusion that he was dangerous within the meaning of the relevant legislation.  The judge said he agreed with that analysis.  
12.	He concluded that a sentence for public protection or life imprisonment was the appropriate sentence, notwithstanding that this was a spontaneous offence.  It had serious physical and psychological consequences for the victim; it was a fearsome weapon; the appellant lacked remorse and showed a callous unconcern for others; and the judge concluded that in the circumstances the appropriate sentence was one of life imprisonment.
13.	There was a guilty plea.  It had come late in the day, partly explained to the judge.  The judge gave 15 per cent credit in relation to that.  He also took into account in favour of this appellant that he had immediately telephoned the emergency services after the attack and had co‑operated with the police.
14.	He then considered the minimum sentence.  He expressed the view that the appropriate starting point had he killed the complainant was between 18 and 22 years, and reached a minimum term of 10 years, as we have indicated, less time spent in custody.
15.	Mr Hudson has advanced three submissions before this court.  The first is that the judge was wrong to conclude that the appellant was dangerous at all.  Difficulties had arisen since the break‑up of his marriage in 2007, but insufficient consideration had been given for his frankness and his guilty plea.  He recognised that the two reports to which we have made reference in terms identified a moderate risk of violence.  In particular, the pre‑sentence report concluded that there was a significant risk of serious harm and the judge came to the same conclusion.  He criticised these reports and said these conclusions were not justified.  He pointed out that in the case of the pre‑sentence report, the author of the report had wrongly taken account of the observations of a supervising officer who had been supervising the appellant under a community order, which had been imposed for a less serious offence in the past.  She was concerned about his controlling and manipulative behaviour towards women, and also the views of an ex‑wife. He had not had the opportunity to challenge those assessments. 
16.	The criticisms of the psychiatric report are that the author accepted that for various reasons it was difficult for her to reach a clear view, and also it was submitted that when she concluded that there was a moderate risk of violence to others, particularly women, that did not satisfy the criteria of a significant risk.  Accordingly, it was submitted that the judge was wrong to make his finding of serious harm on the basis of these reports, and there was nothing in the antecedents to support them.  
17.	We reject that submission.  It seems to us that it is perfectly appropriate for authors of a report of this kind to refer to information that has been provided to them as part of the general material which they are considering when they are reaching their conclusions.  Furthermore, in our view where the psychiatrist refers to a moderate risk of violence, that is certainly consistent with a significant risk of causing serious harm within the meaning of the relevant legislation.  
18.	Perhaps more importantly, the real problem here was that this was a wholly irrational, spontaneous act without any apparent explanation or any apparent motive whatsoever.  In those circumstances, it seems to us that those factors of themselves in an offence of this kind send very significant alarm bells that these problem may recur.  It is true that there are no significant antecedents showing violence or anything of that kind, but there is a history reflected in those reports of untoward and inappropriate behaviour in certain respects towards women.  In our judgment, the judge was plainly justified in concluding that the criteria required for an IPP was satisfied here.  We reject this particular ground of appeal.
19.	The second ground is that in any event the judge was wrong to impose a life sentence and that an IPP would have been sufficient.  Reliance is placed here on the case of R v Kehoe [2009] 1 Cr App R (S) 9, which was endorsed by a five‑strong Court of Appeal in R v Wood [2009] EWCA Crim 651.  Kehoe confirmed that since the public can now be protected by an IPP, a life sentence should only be reserved for those cases where the culpability of the offender is particularly high, or the offence is particularly grave.  The submission is that, although this was a deeply unpleasant attack, it was not so exceptional as to fall within the Kehoe category.  It was not a sustained, ferocious attack or anything of that kind.  It was, as we have said, a spontaneous and relatively brief attack.  As counsel points out, to some extent in fact the appellant seemed to desist once he had fallen on the floor and did not pursue the attack.  We accept the submission that an IPP was proportionate in this case and that a life sentence was not appropriate.  
20.	We turn then to the third ground of appeal, which was that the 10 year minimum term was too long.  Counsel points out that, allowing a 15 per cent reduction for the guilty plea, and even if no allowance is made for other mitigating factors, this would give a determinate sentence after a trial of somewhere in the region of 23 years. He says that is simply too high.  We agree with that.  In our judgment, the appropriate starting point here under the relevant guidelines would have been one of 15 years.  We reject counsel’s submission that it should have been 12 years.  It seems to us that there is some serious long‑term psychological harm here, and not simply medium‑term as is suggested.  We have to have regard to the aggravating feature that a knife was used.  But there were the mitigating features to which we have made reference: the guilty plea, and we would not quibble with the 15 per cent reduction given in respect of that, but also the fact that there was at least full co‑operation by the appellant with the police, and of course he did call the emergency services.
21.	In our view, an appropriate sentence after trial would have been in the region of 17 or 18 years, but we would have reduced that to 14 years if it had been a determinate sentence in the light of these mitigating factors.  It follows that the minimum terms is half that, which is 7 years, and of course we give credit for the period spent in custody, as did the judge.  It follows that this appeal succeeds to the extent that the sentence for life imprisonment is quashed.  We substitute a sentence of imprisonment for public protection, and we impose a minimum term of 7 years, less the period spent in custody, which in this case was 241 days.