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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Wilby, R v [2007] EWCA Crim 2823 (6 September 2007) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2007/2823.html Cite as: [2007] EWCA Crim 2823, [2008] 1 Cr App R (S) 98, [2008] 1 Cr App Rep (S) 98

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Thursday, 6th September 2007

1. MRS JUSTICE COX: On 16th March 2007 at Leeds Crown Court, this appellant, who is now aged 25, pleaded guilty to murdering Gavin Corden on 23rd October 2006. On 30th March he was sentenced to life imprisonment and pursuant to section 269 of the Criminal Justice Act 2003, the judge set the specified minimum term to be served at 20 years less the 154 days spent on remand. He now appeals against that specified term by leave of the Single Judge.
2. The background to the offence and the relevant facts are these. The appellant had a large number of previous convictions for offences of both dishonesty and violence, although none for offences which involved serious violence. He was married from 2001 to 2004 and he then had a relationship with another woman which ended on 18th September 2006 when he took her borrowed car and crashed it whilst drunk. He regularly drank heavily and occasionally took drugs and it was accepted that when drunk he could be aggressive and violent. He was released on bail after crashing the car and in October 2006 he returned to his ex-wife.
3. The deceased, aged 23 when he died, lived with his recently widowed father and he too had a background of heavy drinking and a tendency to be aggressive when in drink. Over the 2 or 3 years before his death the deceased and the appellant had become close friends. Both drank excessively from time to time and when drunk their relationship could be violent. There was evidence that the appellant had bullied and assaulted the deceased on a number of previous occasions.
4. On the afternoon of 23rd October 2006 the appellant went to his ex-wife's home. When he left in the early evening he told her that he needed to sort himself out and that he "just could not do it any more". He said: "If I carry on like this I'm going to end up killing somebody, or someone will hurt me". He told her that he loved her and the kids and told her to telephone him later that evening. He had one of her kitchen knives in his possession, and the judge accepted that in fact he had armed himself with it some time before the day of the murder. According to the appellant it was for his own protection having received threats from men he had cheated in a drugs deal. Police enquiries confirmed that he had been threatened.
5. The appellant went to his former father-in-law's to borrow some money and then went to the deceased's home. The two of them purchased 16 cans of lager from a local shop at about 7.20 pm and then went to a church where they drank nine of the cans. Later they walked through the grounds of a school before they returned to the deceased's home at about 9.30 pm. The deceased's father was then out. They drank a further five cans of lager there and a neighbour heard them arguing. The argument developed and became louder. It appeared that the appellant wanted to do something the deceased did not want to do, because the deceased was heard to say at one point: "No, I don't want to, we'll stay here for a bit." He sounded frightened. The argument undoubtedly became violent because the deceased suffered at least one superficial stab wound to his neck during the course of it. One of the deceased's T-shirts that he was wearing was removed at some point and torn or cut up. One of the sleeves was taken from the house and later applied to the deceased's neck. Some twine was also cut up in the house, some was discarded there and the remainder was taken and at some stage used to tie the deceased's hands behind his back.
6. The two of them returned to the grounds of the school and between leaving the house and 10.20 pm the appellant killed the deceased in the school grounds by stabbing him in the neck with the kitchen knife he had taken previously. There were a total of eight stab wounds to the neck, one which penetrated the common carotid artery and the internal jugular vein. The remainder caused soft tissue injuries. Moderate force was required. There was extensive bleeding and evidence of superficial incised wounds, to the right cheek which could have be torture wounds as could the wounds to the neck. There was also a significant impact to the back of the deceased's head causing an extensive fracture to the skull. That fracture could have been caused by a blow or on impact with the ground. There was a patterned mark on the left side of the face in keeping with a blow from a shod foot. A ligature in the form of a T-shirt sleeve had been applied to his neck. However, as none of the stab wounds penetrated the sleeve the inference is that this was applied after the wounds had been inflicted and there was no evidence of the ligature being applied for any length of time. The appellant stated that he had applied the T-shirt as a bandage after stabbing the deceased but the judge rejected this account as inconsistent with the petechiae subsequently found to be present in the deceased's eyes. The deceased's hands had also been tied behind his back with the twine. The knife was found nearby. There were no defence injuries.
7. The appellant was seen in a street near the school by some youths at 10.20 pm. He claimed he had been attacked by a man in a field and what he said made it apparent that he knew the deceased was dead. He then went to his ex- girlfriend's house and gave a similar account. She accompanied him to the school grounds and he pretended to look for the deceased until he eventually took her to the body. He refused to let her telephone for help, saying he wanted them to have a last night together. They then went to his mother's home, arriving at about 11.30 pm. From there his sister, his girlfriend, a neighbour and the appellant went to the scene of the killing but the appellant became agitated and returned to his mother's home where he still maintained his account of being attacked.
8. Meanwhile the neighbour had telephoned the emergency services and when the police arrived they found the three women there. The appellant was arrested in the early hours of the following morning at his mother's address.
9. When interviewed he maintained his account that the two of them had attacked by a group of men.
10. In pleading guilty the appellant admitted that he had unlawfully killed his best friend and intended at least to cause really serious harm. He said that they had argued when the deceased said he had done something to the appellant's daughter and that he refused to go and tell his mother what he had done. There was the initial violence in the house followed by the fatal attack in the school grounds.
11. Passing sentence upon him the judge said that the appellant had pleaded guilty to murdering his friend. He said that when he inflicted the fatal stab wound, he considered he had intended to kill and the man had died as a result of the injuries to his neck. This was not the first time that he had been violent towards this man. He accepted that the deceased in the past had shown some violence when in drink but in the months leading up to his mother's death the deceased had provided considerable solace to his father.
12. The appellant was on bail at the time of the offence and having murdered his friend had repeatedly lied about what had happened. The judge recognised however that he had the courage to admit responsibility for his death at the first court hearing and had pleaded guilty for which the judge said he would be given considerable credit.
13. The appropriate starting point was taken as 15 years and there is no issue as to that. The judge then turned to the aggravating and mitigating factors and said this:

"This offence was aggravated by the following: the degree of planning - you took twine, the sleeve of the deceased's own t-shirt and a knife with you to the scene of the crime. I am satisfied you formed an intent to kill. You had inflicted injury to his neck... at the deceased's home, before you set out for the grounds of the... school. The prolonged and vicious nature of your attack upon him indicates to me that he must have been suffering before he died. Whether or not that can be described as torture I am uncertain.

You have a record for violence to which I have already referred. On this occasion your violence escalated. You intended, in my judgment, to kill, not to cause grievous bodily harm. You refused to allow [your girlfriend] to telephone for help."

14. The judge found there to be few mitigating features but preeminent was the fact that he had pleaded guilty. It was accepted that he had suffered a degree of depressive illness in the past, with some impairment of responsibility which fell short of that required for a defence of diminished responsibility and account was taken of his young age. It was accepted, albeit with some misgivings that he carried the knife for his own protection and account was taken of his remorse and limited intelligence. It was also accepted that the deceased had been drinking to excess on the night in question.
15. On the appellant's behalf Mr Goss QC submits that the judge, having rightly identified the appropriate starting point as 15 years, then wrongly identified an intent to kill as aggravating the seriousness of the offence. That intention is incorporated within schedule 21 of the Act when assessing the starting point of 15 years.
16. We agree that, as the above extracts from his sentencing remarks seem to indicate, the judge refers twice to being satisfied that the appellant intended to kill, after prefacing these findings by the statement that they aggravated the offence. The matter is not entirely clear since he had also said this right at the start of his sentencing remarks and before referring to any aggravating features.
17. We accept the submission that the 15-year starting point assumes an intention to kill; and the fact that the mitigating factors specified in paragraph 11 of schedule 21 start with "(a) an intention to cause serious bodily harm rather than kill" supports this conclusion. However, that does not prevent the circumstances surrounding the death and the method of killing from being an aggravating feature.
18. The judge was entitled, in our view, to describe this as a prolonged and vicious attack with a knife and involving the infliction of suffering upon the deceased before the fatal stabbing and involving a degree of planning: the T-shirt sleeve and twine having been taken to the scene and used upon the deceased at some point. These were rightly regarded as serious aggravating features, and we do not consider that the judge gave undue weight to them.
19. Mr Goss also submits that the judge failed to give sufficient credit for the appellant's plea of guilty and for those mitigating features he identified, in particular, his young age and limited intelligence, the role played by drink in the case of both the appellant and the deceased, his genuine remorse, his depressive illness and impairment of responsibility and the judge's acceptance that he was carrying the knife with him for his own protection. These factors and the plea of guilty, Mr Goss submits, merited a minimum period of less then 20 years in the circumstances.
20. There is, in our judgment, some force in these submissions having regard in particular to this appellant's young age and to the judge's indication that he would give him considerable credit for pleading guilty at the earliest opportunity. These factors, together with the judge's apparent indication that an intention to kill may have been regarded by him as an aggravating feature, lead us to conclude that in this case a minimum period of 20 years was manifestly excessive and that there should be some reduction in that term.
21. In our view, the appropriate range, after a trial in this case, is 20 to 22 years and that given the plea of guilty the appropriate term is one of 18 years. We will therefore quash the 20 year minimum term specified and substitute one of 18 years, less the number of days already spent in custody on remand. To that extent this appeal is allowed.
22. LORD JUSTICE HUGHES: Mr Goss, as you more than well know, that leaves the life sentence undisturbed. It is the equivalent, in terms of time which must be served before even conditional release can be considered, of a determinate term of 36 years. Thank you very much.