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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 >> Hills, R. v [2007] EWCA Crim 3152 (26 November 2007) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2007/3152.html Cite as: [2007] EWCA Crim 3152

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		No: 200704746 A2 Royal Courts of Justice Strand London, WC2A 2LL
		26th November 2007

1. SIR RODGER BELL: On 23rd March 2007, at Camberwell Green Magistrates' Court, the appellant Charles Albert Reis Hills pleaded guilty to an offence of assault occasioning actual bodily harm and was committed to the Crown Court for sentence. On 14th June 2007, at the Central Criminal Court, he pleaded guilty to two counts of soliciting to murder. On 6th August 2007 he was sentenced to six years imprisonment on each count of soliciting to murder concurrent and 12 months consecutive for the assault occasioning actual bodily harm, a total sentence of seven years' imprisonment with a direction that 230 days spent on remand should count towards the sentence. He had also been indicted for conspiracy to murder but his plea of not guilty was accepted and a not guilty verdict was entered by the judge. He now appeals against sentence by leave of the Single Judge.
2. The facts of the offences are that on 13th November 2006 the appellant met an undercover police officer by arrangement in a car in Clapham. During the meeting, the appellant expressed suspicions that the man was a police officer but nevertheless asked him if he could arrange the murder of a man called Flavio Rosa who lived in Portugal. The man said he could arrange the murder for a fee of £15,000 and the appellant agreed to pay that fee in five installments of £3,000. He provided the officer with examples of Rosa's daily routine, the full address of the villa in Portugal where he lived and a full description of him. He showed Paul the address and maps of the area. At end of the meeting he refused to use a mobile phone as a point of contact and made arrangements to meet the officer, as he was, on Monday 20th November. That is the first count of soliciting to murder.
3. On 20th November, the appellant met the police officer again and was introduced to a second undercover officer. The appellant again discussed the arrangements to kill Rosa for £15,000. He explained that he had the money, which was the proceeds of sale of his flat in Portugal, and explained the need to pay for it in installments to evade a money laundering disclosure. He discussed the actual method of killing Rosa, suggesting it would be a good idea to make it look like an accident. He explained his motive for wanting Rosa killed in that he felt Rosa had stolen his inheritance by co-habiting with his, the appellant's, late mother in Portugal, as a result of which his mother had left Rosa a lifelong right of residence in her villa in her will. He produced detailed maps showing the location of the villa and provided a description of Rosa. He agreed to pay an advance of £200 to enable travel to Portugal to research the address and obtain pictures of Rosa. He agreed to meet again on 13th December. That is the second count of soliciting to murder.
4. On 30th November 2006, the appellant committed the offence of assault occasioning actual bodily harm. The offence was committed at a club which was a mental health charity and provided rehabilitation for people with mental health problems such as those suffered by the appellant. At about midday on 30th November, the female managing director had her attention drawn to the fact that the appellant had arrived and was behaving in an aggressive fashion and was swearing at a member of staff. She went into the garden and attempted to defuse the situation by standing in a non-threatening manner and asking how the appellant was doing. He started swearing again. He was asked to leave but then moved towards her and lunged at her, grabbed her hair, pulled the top, ripping it slightly, started to hit her over the head with a plastic bag with something in it and then grabbed her throat. Eventually she was rescued by other members of staff. She suffered scratches and reddening to the neck and was distressed and shocked.
5. The appellant did not attend the meeting planned for 13th December. The officers went to the agreed location but the appellant failed to show up and, on 18th December, police officers went to his home and arrested him. He told the arresting officer that he had given up the idea of killing someone. His address was searched and various references to meetings and dealings with hitmen were found. It appeared that he told one of those who were trying to help him with his psychological difficulties about a year before, that he had contacted someone with a view to killing Rosa and in fact paid that person, a neighbour, money, but the person had done nothing and made off with the money.
6. In sentencing the appellant, the judge noted that the authors of the psychiatric and pre-sentence reports were troubled about how far he meant to go with the plan for Rosa but they did not consider he posed a significant danger. However, the judge said, rightly of course, that soliciting to murder was a very serious offence. He took account of the guideline cases which he had read and said it was clear from those authorities that sentences approaching, and sometimes into, double figures were called for both as punishment and to deter others. He imposed the sentences to which we have previously referred. The psychiatric reports had in fact said that the appellant had longstanding mental health problems consisting of a complex mix of development disorder and mental illness but his condition was not sufficiently severe to warrant detention in a hospital. He was vulnerable, in need of mental help and struggled to survive in his own community and the most likely diagnosis was Asperger's Syndrome and depression. Obsessive symptoms such as his obsession with Mr Rosa were linked to that. The pre-sentence report said that it was extremely difficult to assess risk in the appellant's case. The prison report prepared for this appeal discloses that the appellant is on an assessment plan, or has been, because of anxiety about returning from healthcare to normal prison locations and because he has a history of self harm.
7. Ms Modgil has referred us in her advice and today to a number of previous cases and submits that the judge could have imposed a community sentence and that if a prison sentence was inevitable he adopted too high a starting point so far as the offence of conspiracy to murder was concerned. She submits that the consecutive sentence of one year for assault occasioning actual bodily harm took insufficient notice of relatively minor injuries, the previous lack of violence on the part of the appellant and the principle of totality.
8. The cases are these, in summary. In AG Ref (No 43 of 1996) [1997] 1 Cr.App.R(S) 378, [1996] EWCA Crim 1113, to which the judge referred, this court reviewed previous cases of soliciting to murder and concluded that they indicated that the minimum starting point for the offence was five to six years following a trial. A two year suspended sentence for two solicitations of different men to kill a man, to whom the female defendant of good character owed money, was increased to four years, after taking account of double jeopardy of the defendant, who was at liberty. R v Shevon Smith [2000] 1 Cr.App.R(S) 212 was a very different case of a serious attempt to shoot the victim at the time of the actual murder of another victim and the sentence of 25 years for the attempted murder was reduced to 18.
9. In R v Robinson [2003] 2 Cr.App.R(S) 13, the facts, as Ms Modgil accepts in her advice, were similar to this case to the extent that the appellant, a mature woman of previous good character, suffered from mental disorders. More than one solicitation was made to an undercover officer but the appellant withdrew when a friend to whom she made the first approach told others of the plan. The appellant had, however, contested the charge. This court held that the sentence of seven years was not manifestly excessive after a trial. In doing so, it referred to R v Adamthwaite [1994] 15 Cr App R(S) 241 as the lowest report sentence passed for the offence, that is four years after a guilty plea. In R v Imran Khalil [2004] 2.Cr.App.R(S) 24, to which the judge also referred, there was a conspiracy to have the husband of the appellant's daughter killed. The sentenced of 16 years after a contested trial was upheld, but that was conspiracy with others and money was actually paid to the undercover officer concerned. In R v Jagit Singh Rai [2006] 2 Cr.App.R(S) 13, to which the judge referred, a sentence of nine years was reduced to eight for three counts of soliciting to murder three separate proposed victims. The appellant had pleaded guilty. An aggravating feature was that the appellant's fingerprints were found on a bag containing a sawn-off shotgun and ammunition. The appellant had sought to end his involvement and pleaded guilty to three counts and to possession of a prohibited weapon. This court described the case as one of great gravity as the appellant was the chief negotiator in the soliciting and we accept that that was a more serious case on its facts than this one. Burton J has referred us to the case of R v Montague [2004] 1 Cr.App.R(S) 137, where, in a case comparable to this one in seriousness, the appellant's sentence of five years after a plea of guilty was upheld.
10. In our view, it is important to guard against the influence of what are generally more serious cases of attempted murder and conspiracy to murder. The leading case for solicitation to murder is still AG Ref No(43 of 1996) to the effect that the starting point for soliciting to murder is five to six years after a contested trial. The appellant in this case clearly thought carefully about how the killing might actually be carried out. He was of good character (so are many defendants to this kind of charge) and there is an element of deterrence to others in the sentences to be imposed. Nevertheless, it is a matter of significant mitigation that the appellant in this case did not proceed with the third planned meeting with those he consulted about killing Mr Rosa.
11. In all the circumstances of this case, we consider that this very experienced criminal judge took a starting point which was a degree too high, perhaps influenced by more serious cases of attempted murder and conspiracy. In our view, the proper sentence on each of the counts of solicitation to murder is one of four and-a-half years to run concurrently. We cannot fault a consecutive sentence for the assault occasioning actual bodily harm, which was an entirely separate offence. The victim in this case came into the category of those who work in the public sector, such as doctors and nurses, who are entitled to the protection of the court, so an additional sentence of imprisonment was inevitable. However, bearing in mind the appellant's mental disturbance at the time of the offence and his prompt plea of guilty, we consider that a consecutive sentence of six months suffices. The result is that this appeal will be allowed by the substitution of concurrent sentences of four and-a-half years on each of the counts of solicitation to murder, with a consecutive sentence of six months rather than one year for the assault occasioning actual bodily harm; a total of five years' imprisonment, less the 231 days which the appellant had spent in custody before sentence.