[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Knight, R v [2008] EWCA Crim 1444 (17 June 2008) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/1444.html Cite as: [2008] EWCA Crim 1444, [2009] 1 Cr App R (S) 57, [2009] 1 Cr App Rep (S) 57

[New search] [Printable RTF version] [Help]

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		17 June 2008

Tuesday 17 June 2008

THE LORD CHIEF JUSTICE: I will ask Mr Justice Plender to give the judgment of the court.

MR JUSTICE PLENDER:

1. On 29 January 2008, following a trial in the Crown Court at Stafford, before His Honour Judge Tonking and a jury, the applicant was convicted of attempted murder. She was sentenced to 30 years' imprisonment (less 30 days already spent on remand). Her application for leave to appeal against that sentence has been referred to the full court by the Registrar. We grant leave.
2. The offence of which the appellant was unanimously convicted by the jury was committed in April 2005 by administering a quantity of antifreeze to her husband. The consequences of the offence for the victim were terrible. He progressively lost the use of his kidneys, most of his sight and his hearing.
3. In his sentencing observations His Honour Judge Tonking correctly stated that he was required to pass a sentence that would reflect the seriousness of the offence and protect the public. The reference to public protection must be understood to mean that the sentence was to act as a deterrent to others who may be tempted to administer poisons for unlawful purposes. The judge found that the offence was completed before 5 April 2003. Therefore the applicable statutory regime for sentencing was that prescribed by the Powers of Criminal Courts (Sentencing) Act 2000. In determining the appropriate tariff he had regard to Schedule 1 to the Criminal Justice Act 2003, paragraph 5(1)(a) of which provides that, in determining the minimum term, the appropriate starting point in certain designated cases should be 30 years. Paragraph 5(2)(c) provides that cases that, if not falling within paragraph 4(1) would normally fall within paragraph 5(1)(a) include (c) a murder done for gain, such as a murder done in the course or furtherance of robbery or burglary, done for payment or done in the expectation of gain as a result of the death.
4. The judge found that the attempted murder in this case was an offence committed for financial gain. The appropriate starting point was therefore one of 30 years. In our judgment the judge was right to apply that paragraph by way of analogy as a guide when sentencing for this offence of attempted murder. Where an offender attempts to murder another and takes steps that would have resulted in his murder but for the fortuitous occurrence of circumstances for which the offender is not responsible, there should be an appropriate degree of proportionality between the sentence for attempted murder and the sentence that would apply had the attempt not succeeded.
5. In R v Simeon Szypusz and David Anthony Gaynor [2006] EWCA Crim 1552, Hughes LJ, in delivering the judgment of the court said:

"70. The judge was plainly right to say that .... sentences for attempted murder, although not caught directly by Schedule 21 to the 2003 Act, have to bear some proper relationship to the terms which are served in the case of murder."

The words used by Hughes LJ in that case reflect those used by Kennedy LJ in R v Shevon Smith [2000] 1 Cr App R(S) 212. In Szypusz and Gaynor Hughes LJ added that sentencing by analogy with section 21 will not be appropriate in every case of attempted murder. We agree. For instance, the analogy with section 21 might be inappropriate in a case where the offender, having administered a poison to a victim, relents on seeing its effect and gives to the hospital in which the victim is being treated the name of the substance that has been administered so as to reduce the victim's suffering and save his life.

6. That is not this case. Here the appellant persisted in her attempt to murder her husband. She nearly succeeded. In our judgment the judge was right to take as his starting point a sentence of 30 years' imprisonment.
7. We next consider whether it is appropriate to make a deduction from that period on the principle that attempted murder is a less grave offence than the offence of murder. In our judgment no such deduction should be made. The difference between those two offences is already reflected in the fact that for murder there is a mandatory sentence of life imprisonment. The term specified in Schedule 1 to the 2003 Act is the minimum term of detention, whereas for attempted murder remission is available.
8. We turn to consider whether there are any mitigating circumstances that should reduce the sentence in this case. It is submitted on the appellant's behalf that she was a woman of previous good character; that she was relatively young (29 years); that her offence led to estrangement from her son; that she did not present a danger to the public; and that rehabilitation is best achieved by keeping the sentence to a minimum.
9. We bear in mind the fact that the appellant is of previous good character. The estrangement from her son is not, in our view, properly described as a mitigating factor; it is the inevitable consequence of her offence. The fact that she does not present a danger to the public is not mitigation of this offence, but a reason for failing to treat her as a dangerous offender were the relevant statutory provisions in force at the time. The principle that sentence should be kept to a minimum is one that applies in every case.
10. Among the aggravating circumstances are the premeditation which went well beyond that which is to be expected in any case of attempted murder with a view to financial gain. In this case the appellant planned her crime with some care and over a substantial period. She discussed it with others and researched on the internet the effects of the consumption of antifreeze. She chose a poison which was likely to, and did, cause severe suffering and disability.
11. In the result the mitigating and aggravating factors are balanced. The judge took as his starting point a sentence of 30 years' imprisonment. We see no reason to depart from it. This appeal against sentence is dismissed.