West Law Report

Overall criminality relevant

Posted in Times Law Report by mrkooenglish on December 1, 2008

From The Times
November 24, 2008
Overall criminality relevant

Court of Appeal, Criminal Division

Published November 24, 2008

Regina v Herbert, Regina v Harris, Regina v Hulme (Joseph), Regina v Hulme (Danny) and Regina v Mallett

Before Lord Judge, Lord Chief Justice, Mr Justice Owen and Mr Justice Christopher Clarke

Judgment October 29, 2008

Even a definitive sentencing guideline was not to be used or approached as if each offence could be put into a fixed and inflexible compartment. The assessment of the seriousness of an offence involved a broad judgment of the overall criminality.

The Court of Appeal, Criminal Division, so stated when dismissing an appeal by Brendan Harris but allowing to a limited extent an appeal by Ryan Herbert against sentences imposed by Judge Russell, QC, at Preston Crown Court on August 11, 2007, of detention at her Majesty,s pleasure with minimum recommended terms respectively of 18 years and 16 years, three months on Harris’s conviction for, and Herbert’s plea of guilty to murder (count 1). Their appeals against sentences of detention for public protection on their pleas of guilty to causing grievous bodily harm with intent (count 2) were dismissed as were the appeals of Danny Hulme, Joseph Hulme and Daniel Mallett against similar sentences on that count.

Mr Richard Marks, QC, assigned by the Registrar of Criminal Appeals, for Herbert; Mr Andrew O’Byrne, QC, assigned by the Registrar, for Harris; Mr Paul Reid, QC, assigned by the Registrar, for Joseph Hulme; Mr Anthony Maurice Cross, QC, assigned by the Registrar, for Danny Hulme; Mr David Fish, QC, assigned by the Registrar, for Mallett; Mr Michael Shorrock, QC, for the Crown.

THE LORD CHIEF JUSTICE, giving the reserved judgment of the court, said that the five appellants, all teenagers, had savagely and mercilessly attacked and beaten unconscious a young man of 21 and, when his girlfriend intervened, two of the appellants turned on her and subjected her to an equally vicious beating, causing serious head injuries from which she died 14 days later.

Herbert pleaded guilty to murder and Harris was convicted of the murder. All the appellants pleaded guilty to causing grievous bodily harm with intent to the young man.

In setting the minimum terms to be served by Harris and Herbert before they could be considered for release on parole, the judge took as his starting point the period of 12 years indicated by Schedule 21 to the Criminal Justice Act 2003. The judge said that if the appellants had been over 18 the starting point under Schedule 21 would have been 30 years.

In their Lordships’ judgment, the judge’s approach could not be faulted. It was correct that the case did not fall within any of the categories in paragraph 5(2)(a) to (h) of the schedule, but, as explained in R v Height ( The Times November 24, 2008) those categories of offence were not exhaustive.

Nevertheless, Herbert’s minimum term would be reduced to 15 years 6 months because he had shown an element of remorse in addition to pleading guilty.

When sentencing the appellants for the grievous bodily harm offence the judge had correctly, in their Lordships’ judgment, concluded that the dangerous offender provisions applied.

In setting the notional determinate sentence he had had regard to the guidelines laid down by the Sentencing Guidelines Council.

The recommended starting point, where a defendant was under 18, for setting the notional determinate sentence for the gravest cases was 13 years, with a sentencing range of 10 to16 years.

Even though the guideline was directed to the sentencing of those over the age of 18, the judge had taken proper account of the age of the appellants because, having placed the offence at the top of the range, it was clear that he had reduced the notional determinate sentence to 13 years to reflect their youth.

Solicitors: Crown Prosecution Service, Preston.

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