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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 >> Bonellie & Ors, R v [2008] EWCA Crim 1417 (17 June 2008) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/1417.html Cite as: [2009] 1 Cr App R (S) 55, [2008] Crim LR 904, [2009] 1 Cr App Rep (S) 55, [2008] EWCA Crim 1417

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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 Goldring to give the judgment of the court.

MR JUSTICE GOLDRING:

1. These three appellants were charged with murder. On 7 January 2008 (the day fixed for trial), at Newcastle Crown Court, Hughes and Miller pleaded guilty on re-arraignment. Sentence was adjourned until after the trial of Bonellie. On 22 January 2008 Bonellie was convicted of murder. On 29 February the appellants were sentenced by His Honour Judge Milford QC as follows. Bonellie, who is now aged 17, was ordered to be detained at Her Majesty's pleasure; the period of 18 years (less 186 days spent on remand) was specified. Hughes, who is now aged 22, was sentenced to life imprisonment; the specified period was 22 years (less 186 days spent on remand). Miller, who is now aged 16, was ordered to be detained at Her Majesty's pleasure; the specified period was 15 years (less the identical period on remand). The appellants now appeal against sentence by leave of the single judge.
2. The fundamental issue in this appeal is whether the judge was right to categorise the seriousness of the murder in this case as "particularly high" with a starting point for an offender aged 18 or over of 30 years under Schedule 21 to the Criminal Justice Act 2003.
3. The facts were these. On the evening of 23 August 2007 the deceased (Martin, aged 23), who had spent the previous nine years in psychiatric hospitals and suffered from a learning disability and other psychiatric conditions, was systematically attacked, tormented, humiliated and finally beaten by the appellants whom he misguidedly believed to be his friends. They had punched, head-butted, kicked and stamped on him until he died. At no point was he aggressive towards them. The Crown's case was that they carried out the attack for their own sport. Both Bonellie and Miller had trained as amateur boxers.
4. There was evidence that over the years local youths had taken advantage of Martin. The judge did not take that into account as against the appellants.
5. That evening so keen was he to be accepted by the group that even when he was being assaulted, Martin would apologise to his assailants, shake their hands and at one point went to an off-licence to buy them some alcohol.
6. At about 9.15pm on 23 August Martin was with the appellants when they started to dare each other to hit him for money. Miller hit him first sufficiently hard to knock him to the ground. He got up. After they had walked a little further, Hughes hit him and knocked him to the ground. They bet with each other who could knock him out. Miller punched him as they reached a bus stop, again knocking him over. The violence continued as they went on their way. Miller hit him while holding a can of drink in his hand. Bonellie jogged up to him and said that he was going to knock him unconscious. Hughes got in first and knocked him over. The three of them laughed at him. He got up. The group carried on. Martin was punched. He fell off a wall. He was crying, but still apologised to them. He did not want to leave the group. Hughes launched an assault by punching Martin three times so that he again fell to the ground. The violence continued and became worse. As Martin lay on the ground they all jumped and stamped on him. Eventually they propped him up against a parked car. Hughes took a couple of steps back and kicked him hard in the face. He was bleeding. They dragged his unconscious body around the back of the car. The pulled his trousers and underwear down to his ankles and walked off. By this time it was about 10.30pm.
7. Residents had witnessed part of the assault. The appellants claimed that he deserved to be kicked because he had burgled an old woman's home. The appellants later told their friends some details of the attack, but sought to distance themselves from it.
8. Martin was rushed to hospital. He was found to be deeply unconscious. There was no evidence found of any brain function. He was pronounced dead. He had 22 recent injuries. It appears that 18 separate blows had been delivered to the head and neck.
9. The appellants subsequently surrendered to the police. Bonellie admitted that he was present, but denied violence. Hughes admitted hitting him a couple of times, but only after he had overheard Martin asking a young boy to go burgling with him. He denied any part in the violence and blamed the other two. Miller declined to comment, but a prepared statement was read out in which he admitted being present and assaulting Martin, but claimed that Martin was alive and conscious when he left.
10. The sentencing judge had before him antecedent histories and various reports on each of the appellants. Bonellie had two previous convictions for threatening behaviour in 2007. Hughes had a conviction for assault occasioning actual bodily harm in 2003. Miller had a previous conviction for battery in 2007. Bonellie's pre-sentence report assessed the risk of him re-offending as medium to high. He was said to be ashamed of his actions and genuinely remorseful. Hughes was described as presenting a high risk of serious harm to the public. Again it was said that he appeared to be genuinely remorseful. In Miller's case there was a psychological report. His IQ level was assessed as low (we are told 79). A pre-sentence report assessed the risk of him re-offending and causing serious harm to the public as high.
11. In passing sentence on the appellants the judge first considered whether, in fixing the minimum terms, he should enhance the sentence to deter others. As he did not do so, it is unnecessary to refer to what he said about that. Second, having referred to Martin as a gentle, caring person, the judge described the appellant's conduct. We need not repeat that. Third, the judge set out the starting points. He said:

"I now have to address myself to the starting point. Mr Hedworth QC for the Crown has submitted that the appropriate starting point under Schedule 21 is 15 years for Hughes, who is 21 years of age, and 12 years for the remaining defendants because they are under 18. I questioned whether that was right and whether by virtue of paragraph 5(1) and 5(2)(e) of the Schedule, this being a murder where the seriousness of the offence was particularly high and involving sadistic conduct and an extremely vulnerable victim, the starting point for Hughes was not 30 years. Mr Hyland QC for Hughes has sought to argue that 15 years is the starting point and an imbalance in sentence will be achieved between you and your co-defendants if I move to the higher point.

I am unpersuaded by that argument. If the nature of the offence demands the higher starting point, that is the point at which the court should start and arguments of parity are beside the point.

Having satisfied myself that the appropriate starting point for Hughes is 30 years, I stress I do not add to that starting point by reason of the aggravating features ...."

12. Having set the starting point at Hughes at 30 and that for Bonellie and Miller at 12, the judge set out the mitigating features. He found that there was no intention to kill; that the offence was not premeditated; and that Bonellie and Miller were not as heavily involved as Hughes. He referred to the reports which he had seen; that Bonellie was lightly convicted; and that Miller was of previous good character. He discounted the minimum terms of Hughes and Miller by one-sixth to reflect the pleas on the day of trial.
13. The essence of the argument before us is that the 30 year starting point should not have been chosen. As Mr Hyland QC on behalf of Hughes submitted, the 30 year minimum should be reserved for the gravest murders short of the whole life term. He submitted that this was not a murder involving sadistic conduct. He accepted in Hughes' case the aggravating features. He accepted that the judge was entitled to conclude that Hughes was the most culpable. He submitted that the mitigating features were in any event inadequately taken into account. He emphasised Hughes' plea of guilty, the lack of an intention to kill, the lack of premeditation and planning and that the appellants had come across the victim by chance. He also submitted that, although the oldest, Hughes was still young at the time.
14. The submissions on behalf of the other two appellants were posited upon the basis that the starting point in Hughes' case was too high. It followed that the minimum terms imposed on them consequentially were themselves too high. It was also submitted that there was an inadequate balance between the aggravating and the mitigating features.
15. On behalf of the Crown Mr Caulfield does not go back on the submission to the trial judge that the starting point in this case should have been 15 and not 30 years.
16. The first issue, therefore, to which we turn is: what was the right starting point for Hughes? Was this an offence the seriousness of which was particularly high within the terms of Schedule 21? There is no doubt that the behaviour of these appellants was appalling. They were rightly described in the opening note as acting like a pack of animals. They did so for amusement and to make themselves look big. Does that conduct amount to sadistic conduct for the purposes of paragraph 5(2)(e)? The current edition of the Oxford English Dictionary defines "sadism" in these terms:

"Enthusiasm for inflicting pain, suffering or humiliation on others."

Sadly, it is often the case that those who attack others derive pleasure from so doing. Many a person kicking someone else on the ground derives such pleasure. A person, too, may gain pleasure from baiting a vulnerable individual, or showing off to his friends. That is not enough, in our view, to bring the case within subsection (e). That subsection contemplates a significantly greater degree of awareness of pleasure in the infliction of pain, suffering or humiliation, perverted though the pleasure we have described may be.

17. Although we can understand how the judge came to the view he did, in our judgment appalling though this behaviour was, it fell short of that sort of conduct which is contemplated as sadistic by the subsection. This was a very bad case of gratuitous gang violence directed at a vulnerable individual. In short, the starting point should not have been 30 years for Hughes; it should have been 15.
18. The aggravating features in Hughes' case are clear. We need not repeat them. They merit a significant increase on the starting point of 15 years. Balancing the aggravating and the mitigating features, we have concluded that in his case the appropriate minimum term would be one of 19 years.
19. We turn to Bonellie. He did not have the mitigation of a plea of guilty. He is younger than Hughes. He was not as involved as Hughes. He is lightly convicted. Bearing all those features in mind, and again performing the balancing exercise to which we have referred, it seems to us that the appropriate minimum term in his case would have been one of 15 years.
20. Miller was the youngest. He pleaded guilty. It seems to us that in his case the appropriate minimum term would have been one of 13 years.
21. In the result, therefore, we quash the minimum terms imposed by the judge. We substitute those terms to which we have just referred. The period spent on remand which the judge ordered to be set off against those terms will be set off against the fresh terms we have imposed. To that extent this appeal is allowed.