Appeals against sentence
39.In passing sentence the judge found that there was participation in sadistic conduct in relation to all defendants. He said that it was demonstrated by the taking of photographs whose only purpose was to gain pleasure derived from seeing what had happened to Mr Dack. Accordingly, having regard to the provisions of Schedule 21, paragraph 5 of the Criminal Justice Act 2003 that would entail a 30 year starting point for the minimum term. The judge went on to say even if it were wrong to describe the conduct as sadistic, it was so close to sadism that he would have increased any 15 year starting point to something close to 30 years. He continued:“Combined with the aggravating features of suffering, and the way you disposed of the body, before taking account of mitigating factors, I reach a period of in excess of 30 years for all of you.”He then passed the different minimum terms already mentioned, singling out Nicholls as the leader, taking account of the fact that the other two males were followers rather than leaders and allowing Woodmansey some additional mitigation “for the substantial extent to which you gave a true account of events to the police.” In Ms Chalk’s case the judge dealt with her somewhat more leniently as she had inflicted no physical injury herself, as she intended no more than grievous bodily harm to occur. He also had regard to her age (20 at the time), a lack of premeditation, and the contents of a report from Dr Clark, a psychologist. 40.All appellants challenged the 30 year starting point and the judge’s finding that there was sadistic conduct. Nicholls additionally challenges the judge’s description of him as a leader when he had not been a planner, motivator or persuader. He urges that his intention to kill is limited to the duration of the final attack, some 30 minutes, and that he would not have acted as he did without the presence and encouragement of the others. In addition he argues that he deserved additional credit for having pleaded guilty, making a witness statement for the Crown, and being prepared to give evidence at the second trial. He contrasts his position in this respect with that of his co-accused. 41.Dwyer-Skeats additionally urged that a 2 year difference between himself and Nicholls was insufficient to reflect their respective roles. Moreover he submits there was no reason to distinguish between himself and Woodmansey who received 30 years. 42.Woodmansey in common with the others complains that the overall sentence was manifestly excessive but submits additionally that the judge failed to distinguish sufficiently between himself and the other two males and that the judge should have granted greater credit for admissions made by Woodmansey in his police interviews and evidence. There is a discrete additional point raised concerning count 2 (perverting the course of justice) which is somewhat academic since a concurrent sentence was passed. Woodmansey was the only defendant who had admitted that count in interview and who pleaded guilty at the first reasonable opportunity. That should have been recognised in a lesser sentence.43.In Ms Chalk’s case in addition to the common complaint about the starting point of 30 years, rather than one of 15 years, she submits that the 25 years imposed upon her was simply too long where a) she had not personally used any violence; b) she was 20 years old at the time and thus significantly younger than the other appellants who are five to 11 years older than her; c) the clinical psychologist’s report shows that she was an extremely vulnerable and psychologically dependent young woman at the time of the offences, having prior to this time suffered many unfortunate life experiences which had affected her. She should be viewed as a compliant follower so that her culpability was significantly reduced.44.We begin with the common submission relating to the 30 year starting point. Paragraph 5(1)(a) of Schedule 21 provides:“if the case does not fall within paragraph 4(1) but the court considers that the seriousness of the offence (or the combination of the offence or one or more offences associated with it) is particularly high…the appropriate starting point, in determining the minimum term is 30 years”Paragraph 5(2) indicates cases which would normally fall within subparagraph (1)(a) include “(e) a murder involving sexual or sadistic conduct”.45.The judge found that what occurred over the sustained fatal attack, participated in or encouraged by all defendants, fell within that definition. We have considered Attorney General’s Reference Nos 108 and 109 of 2005 (Swindon and Peart) [2006] 2 Cr App R (S) 80. That was a case which involved sustained violence taking place over several hours during which the victim was bound and gagged, kicked and stamped to the head and face, and disembowelled. At paragraph 33 the court stated that although sadistic conduct may be sexually fuelled, the word “sadistic” nowadays either in its ordinary meaning or in the present statutory context neither implies nor requires a sexual element. The court went on to say that the fundamental question was whether, sadistic or not, the conduct was of such seriousness as to warrant a 30 year starting point. That this is correct can be seen from the fact that paragraph 5(1)(a) applies that starting point where the seriousness of the offence or its combination with other associated offences is “particularly high”. The reference to sadistic conduct at paragraph 5(2) is merely an example of what will be sufficient to satisfy paragraph 5(1)(a). 46.We also considered Bonellie [2009] 1 Cr App R (S) 55. That case involved a fatal attack involving a large number of blows delivered by a group of young men for amusement by way of punching, kicking, stamping and head-butting. In that particular case the court held that such conduct was not sadistic notwithstanding its appalling nature. The court spoke of sadism requiring a significantly greater degree of awareness of pleasure in the infliction of pain, suffering and humiliation. It is to be observed that the decision in the Attorney General’s Reference was not cited to or considered by the court which concluded that, whilst this was a very bad case of gang violence, it fell short of conduct contemplated as sadistic by the paragraph.47.Having ruled out sadistic conduct, the court did not then go on to consider whether the seriousness of the offence was particularly high within the meaning of the Schedule for any other reason. We view this as a decision referable to the facts of that case and not one which is of particular assistance in the present matter where the judge not only identified what was done to the victim over a prolonged period but specified the pause for the taking of photographs as evidence demonstrating sadistic conduct. Moreover, the judge identified an alternative basis on which a starting point of around 30 years was appropriate. 48.We have also considered the case of Nicholls and others (2011) 1 Cr App R (S) 67 which involved repeated violence over a period of days. The court upheld a 30 year starting point where the trial judge had assessed the conduct as sadistic or alternatively as a prolonged killing involving “a particularly high degree of seriousness in the whole spectrum of murder.”49.We do not consider that searching for factual distinctions in levels of violence and other circumstances in previously decided cases is of great assistance. It seems to us that in considering the 30 year starting point the court should ask itself whether the seriousness of the matters to be dealt with is particularly high. If sadistic conduct in the sense described in the Attorney General’s Reference is involved that may well be an indicator of the appropriateness of a 30 year term. However it is not a prerequisite. 50.In the present case the court is not confined to looking at the fatal attack but would be entitled to look at the preceding events as aggravating and setting in context what occurred on the morning of 6 April. This is accepted by counsel. On any view on the previous day Mr Dack had been subjected to very serious violence triggered by the behaviour of Donna Chalk. Although he needed hospital treatment, the deceased was effectively kept prisoner overnight and then forcibly restrained the following day at the flat whilst the appellants went out to sell his computer. The case is also undoubtedly aggravated by the mental and physical suffering inflicted upon Mr Dack during the prolonged fatal attack and by the subsequent attempts to conceal the body coupled with the cleaning up of the flat. 51.Ultimately it seems to us that the judge was entitled for the reasons he gave to conclude that what was done to the deceased on the morning of his death did amount to sadistic conduct in the circumstances, but in any event, the circumstances of the case reveal one of particularly high seriousness. Thus on either view a starting point of around 30 years was appropriate. Those considerations apply to each of the four appellants. The next question is the extent to which that figure should be varied to take account of individual factors. 52.We begin with Nicholls. When the judge described him as the leader he meant that Nicholls had taken the leading and most significant role in the fatal and earlier violence and had in fact personally inflicted the fatal injury. It was he who had been moved by Ms Chalk’s remarks into initiating that attack. That was a factor which entitled the judge to distinguish his position from his co-accused. We do not see mitigation in the submission that he was unlikely to have acted as he did but for the comments of Ms Chalk and the presence of the others, or in the fact that his intention to kill was confined to the duration of the final incident. There was evidence that, at the end, the killing was also seen as necessary to cover up what had already been done to the deceased.53.As to the fact that Nicholls pleaded guilty, credit for this must be very limited since it only came during the course of his cross-examination by prosecuting counsel. Thereafter he did make a statement for the Crown and appeared to be willing to give evidence at the re-trial. However there were issues as to the truthfulness of significant parts of his account and the judge subsequently acceded to a defence application that the evidence should not be admitted for this reason. We further understand that during the course of the second trial, Nicholls took steps with a view to seeking to re-open his guilty plea. Although he did not pursue the matter to an application, this somewhat undermines claims of credit for remorse. In the circumstances we consider that some, but not much credit is due to Nicholls for these matters. 54.Given our finding that a starting point in the region of 30 years was appropriate whether on the basis that the conduct was sadistic or on the basis that the seriousness of the offending was particularly high, the matter would clearly be aggravated by the disposal of the body but care should be taken to avoid double counting in relation to the mental and physical suffering of the deceased where the 30 year starting point is reached either through the sadistic conduct route or through the particularly high seriousness route. In the context of this case Mr Dack’s suffering will have already have been a factor in the identification of the 30 year starting point. 55.The question for us is whether in the circumstances Nicholls’ minimum term of 34 years is manifestly excessive. We have come to the conclusion that it was. The judge arrived at that figure having made some allowance for the guilty plea and co-operation. His sentencing remarks suggest that having arrived at his starting point he included as an aggravating feature the mental and physical suffering of the deceased. We think that the submission that there was an element of double counting about this is well founded. We are of the view that the judge was entitled to make some addition to his starting point to reflect the disposal of the body. This was a separate distressing and aggravating element which went beyond the appalling facts of this murder itself. Since a 30 year starting point was in our judgment appropriate to this case, and since we have concluded that some addition to that figure would be justified to represent the disposal of the body, it would follow that a small deduction should be made from the figure thus reached to reflect the guilty plea and other matters referred to. 56.Taking account of those factors, we are persuaded that the ultimate figure of 34 years was too high and that the appropriate figure is 31 years. Accordingly we allow this appeal against conviction by quashing the 34 year minimum term and inserting in its place a minimum term of 31 years less 441 days spent on remand in custody. If that latter figure is incorrect, in this as in the other cases, we intend the appellants to have full credit for time spent in custody, and if need be a corrected figure may be substituted administratively. 57.We turn next to Dwyer-Skeats. For the reasons already stated, a 30 year starting point was appropriate in his case. The judge, who had presided over a lengthy trial and heard Dwyer-Skeats give evidence, assessed his role as a lesser one than that of Nicholls. Whilst criticism is made of the level of reduction granted to him in this respect, we are not persuaded to interfere taking the view that considerable respect should be afforded to the judgment of the trial judge who had many weeks in which to consider the relevant roles of the male accused. For similar reasons, we are not prepared to interfere with the distinction made between Dwyer-Skeats and Woodmansey. Accordingly our conclusion in Dwyer-Skeats’ case is that the specific grounds relied upon by him are unsuccessful. However to maintain proportionality with the sentence imposed on Nicholls we reduce Dwyer-Skeats minimum term from 32 years to 29 years less 441 days spent in custody on remand. If need be that figure can be corrected administratively. 58.In Woodmansey’s case we consider that, a 30 year starting point being appropriate, the judge was best placed to assess the hierarchy and relative culpabilities. We do not consider there is any basis to interfere with his assessment. The claimed extra credit for admissions in interview and evidence has to be seen in the context of the fact that Woodmansey maintained a denial of involvement in murder to the end. Our conclusion in his case is that to maintain proportionality with his co-accused, the appeal should be allowed and a minimum term of 27 years less 441 days be substituted. Again any error is to be corrected administratively. 59.In Woodmansey’s case the point raised relating to count 2, perverting the course of justice, is a valid one albeit only academic. We shall give effect to it by substituting a term of 3 years in place of the 4 years imposed on count 2 to run concurrently to the minimum term on count 1. This of course makes no difference to the overall time to be served. 60.Finally in the case of Donna Chalk, the judge clearly recognised that she played a lesser role in the offending having used no actual violence herself. On the other hand he found that she clearly intended to trigger off the fatal attack by her actions, and that the jury’s verdict accepted that and the fact of her presence throughout as encouragement to the others. It is however the case that Donna Chalk was 20 years old at the time and that she was a damaged individual in a way which reduces her culpability. In addition and importantly, the judge accepted that Ms Chalk did not have an intention to kill but merely an intention that grievous bodily harm be caused to Mr Dack. This of course is a relevant point in mitigation. The judge identified these various factors which differentiate Ms Chalk’s case from that of the other three. The question for us is whether he made sufficient allowance for those factors. 61.Our conclusion is that, notwithstanding the respect which should be afforded to a trial judge for his feel for the relative positions of the defendants before him, we do not consider that taken cumulatively he gave enough weight to those matters which distinguish Ms Chalk’s case from the others. There is a combination of features present in her case which satisfies us that a greater distinction ought to have been made. In addition, we need also to reflect the reduction made in the other sentences. Our ultimate conclusion is that the appropriate minimum term in this appellant’s case is one of 20 years less 441 days spent on remand in custody. Again that figure may be corrected administratively if it is incorrect. To that extent this appeal is allowed.