Case No: 201106607 A8
Neutral Citation Number: [2012] EWCA Crim 135
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT NEWCASTLE UPON TYNE
HHJ GOSS Q.C.
T20117086
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 10/02/2012
Before :

LORD JUSTICE HOOPER
MR JUSTICE HICKINBOTTOM
and
RECORDER OF CROYDON HIS HONOUR JUDGE WARWICK McKINNON
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
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REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988 
ATTORNEY-GENERAL'S REFERENCE NO 103 OF 2011
(Gary Thompson)

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MR. E. GARNIER QC (HER MAJESTY’S SOLICITOR GENERAL) 
and MR. R. WHITTAM Q.C. for the ATTORNEY GENERAL
MR. B. RICHMOND QC for the Offender
Hearing date: 19th January 2012
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Judgment
Lord Justice Hooper : 
1.	Her Majesty’s Solicitor General seeks leave, under section 36 of the Criminal Justice Act 1988, to refer the sentence passed on the offender by HHJ Goss QC in the Crown Court at Newcastle as unduly lenient. We grant that leave.
2.	The offender is Gary Thompson.  He is aged 25, having been born on 13 October 1986.  
3.	On 26 September 2011 he pleaded guilty to a single count of murder. He was sentenced on 4 November 2011 to life imprisonment with a specified minimum period of 18 years’ imprisonment; less the 282 days he had spent on remand.  
4.	It is submitted that the minimum period was unduly lenient.
5.	In summary, on 24 January 2011 the offender attacked Gillian Raine, the mother of Pamela Raine, who was the sometime girlfriend of the offender. It was a premeditated attack and the offender had an intention to kill. The offender waited outside Gillian Raine’s address.  He was armed with a lump hammer and a kitchen knife, both of which he had brought to the scene with him. As Gillian Raine walked down the street the offender approached her.  He struck her hard on the head with the lump hammer.  He then stabbed her in the face, neck and chest with the kitchen knife.  A neighbour witnessed the murder.  The offender threw the hammer at her once he had used it on Gillian Raine. The neighbour did what she could for Gillian Raine. The offender phoned his mother and then the police.  He told the police that he had just murdered someone. 
6.	The facts in more detail are set out in the Final Reference and are as follows:
6. On 24 January 2011 at about 7.30 am the offender killed Gillian Raine in the street as she walked to work. 
7. Gillian Raine was a 53-year-old woman who lived in Dipton with her daughter Pamela. She was described by neighbours and family as a caring and gentle person. She ran the ‘out of school’ club. 
8. Pamela Raine is 22 years old and has Asperger’s Syndrome.  She had been in a relationship with the offender who she had met at college. This had been ‘off and on’ a number of times. For a period of time the offender had lived with Pamela and Gillian Raine at Coleridge Gardens. However a little over two years ago the offender was asked to leave by Gillian Raine. Since then Pamela Raine and the offender split up and got back together again on more than one occasion. Pamela Raine attempted to end the relationship on a number of occasions but the offender was very persistent. 
 9. On 18 January 2011, the offender received a text message from Pamela Raine, ending the relationship: 
‘Get lost! I don’t want 2 b with u ne more! We r over!!! Leave me alone!’
10. This generated a series of texts from the offender trying to persuade Pamela Raine to contact him. When these met with no response, his tone changed: 
		‘I was nice but not now!!!’
Gillian Raine replied on Pamela Raine’s phone: 
		‘NOW will u leave us alone, Gillian’.
	To which the offender replied:
		‘Not yet I haven’t started’.
	Then:
‘Pamela u will have no trubble from me. I love u. U will have a good life soon when I am finished my work. U will have a much better life don’t worry about that.’
‘Gillian u have pick on the wrong one this time. Ooops’
‘Not talking 2 me will NOT help you gillian and pamela trust me on that one. As I sed b4. Promies is a promies 2 me. I will c use 2’.
‘Remember these words. U will c yr day. That’s a promies. Gillian. B 
11. Gillian and Pamela Raine contacted the Police about the messages at about 8.30 pm on the 18 January. At 8.45 pm PC Paterson arrived at 1 Coleridge Gardens. He spoke to both Pamela and Gillian Raine. Pamela showed the officer the text messages. PC Paterson spoke to the offender on the Pamela Raines’s telephone and warned him against further attempts to contact Pamela Raine. PC Pearson recalls that Gillian Raine had said that the offender was a very nice lad, most of the time, but could be aggressive when in drink. They did not feel it likely that the offender would cause any problems. 
12. The offender continued to send text messages, asking Pamela Raine what he had done wrong, saying that he loved her very much and asking to meet up with her. 
13. On Wednesday, 19 January, Ian Bushby, a taxi driver picked the offender up at the Castleside Club in Consett and took him to Bellamy’s Pub in Newmarket Street. He noticed that the offender was very drunk and it was difficult to understand him.  He was mumbling something about his girlfriend and his mother-in-law.  He picked the offender up from Bellamy’s at midnight and took him to his home address, 11 Moorlands View. As they arrived at the address the offender said to him, ‘Just between friends, could you tell me where I could hire a gun?’
14. On Friday 21 January 2011 at 12.40 am the offender contacted the police and complained that Gillian Raine had threatened him by text saying that if he enters Dipton he will not get out alive. Police attended at his home address and found him very drunk and abusive. He told the Police that he had received several threatening text messages from Gillian Raine. He refused to show his phone to the police and told them to leave him alone before slamming the door in their faces. Examination of the telephones in this case has not revealed any such messages.   
15. On Tuesday 18 January 2011, the offender was drinking at the Castleside Club where he was a regular. He had been drinking heavily and was obviously upset, he told David Rose, the Club Steward, that he had split up with his girlfriend and that he blamed her mother for the break up.
16. The offender returned to the Club on the evening of 23rd January at about 7.30pm. He told the Steward and Frederick Openshaw, a regular visitor to the club, that he would be moving away and that they would not see him again. David Rose asked him why he was moving and to where. The offender replied that he had it all planned out, that he was getting up early in the morning to go to Dipton, but that he didn’t know where he was going after that. He left the Club at around 10.30pm.
17. On Monday 24 January 2011 the offender was picked up by a taxi from his home address and driven to Dipton where he was dropped off outside The Red Lion Pub at the corner of co-operative Terrace and walked up the street towards Harelaw. 
18. At 7 am that morning Vicky Hopper was walking her dog. She saw Gillian Raine walking up from Coleridge Gardens; she was carrying two heavy bags and a handbag. It was a normal, dark, winter’s morning. She saw Gillian Raine stop to speak to a neighbour. Vicky Hopper noticed the offender walk a short distance up the road towards them and then turn round. Then she noticed him again and he turned away. Thinking he might be scared of the dog, she shouted to him that the dog was soft. 
19. Gillian Raine came up to her and they had a conversation. She then carried on her way but very shortly afterwards Vicky Hopper heard her say ‘Vicky’. She was walking back towards her saying ‘call the police’ more than once. Vicky Hopper then noticed the offender directly behind Gillian Raine, who said ‘call the police now, he is going to kill me’.
20. Vicky Hopper saw that the offender had a hammer in his right hand. He lifted it up and brought it down onto the centre of Gillian Raine’s head with such force that the impact could be heard. She fell to the ground face first without even being able to put her hands out to brake her fall. She began to bleed from her nose or mouth. Vicky Hopper telephoned the police.
21. Vicky Hopper then witnessed a brutal, calculated attack on the defenceless Gillian Raine. The offender had a knife in his right hand. As Gillian Raine tried to sit up he kicked her to the ground and then stabbed her to her right hand side, to her face and to her throat, Vicky Hopper told the police that they had to get there as he was killing her.  She tried to distract the offender by asking him why he was doing this. He replied ‘because she deserves it’.  When she was shouting at him he showed the knife towards her. At some point he threw the hammer towards her and her dog. 
22. Vicky Hopper describes the offender as being very calm in his manner. He stabbed Gillian Raine once more to the chest causing her to fall forward. This was done with such force that the blade snapped and became stuck in her coat. 
23. The offender then moved away and Gillian Raine was left lying on the ground pouring with blood. Vicky Hopper tried to comfort her and to administer first aid but there was little she could do.
24. The police [called by the offender] arrived and officers did their best to stem the flow of blood. Gillian Raine stopped breathing and the officers began CPR.  An Ambulance arrived.  The paramedics continued to perform emergency CPR on route to the hospital. They arrived at the University Hospital of North Durham at 8.23am.  
25. After 15 minutes of trying to revive her without success, resuscitation was discontinued and Gillian Raine was pronounced dead at 8.41am.
26. Dr Hamilton, a pathologist, carried out a post-mortem examination on the body of Gillian Raine at 2 pm on the 24 January. Gillian Raine had sustained a number of injuries:
An incised wound to the chin consistent with glancing contact with a blade. 
Bruises and abrasions to the nose and chin, which could be consistent with either hammer blows or kicks. 
An oblique stab wound over the right clavicle, which had penetrated the upper lobe of the right lung. 
Two further stab wounds to the neck. One had cut the right vertebral artery, which would have bled persistently and significantly so as to be the cause of death. The second wound, where the knife struck the sternum was probably the last blow inflicted and which caused the knife to break. 
There was also a laceration to the back of the skull with a degree of damage to the external plate of the skull which had caused no fracture and no haemorrhage to the brain. This was consistent with a moderately forceful impact from the hammer found at the scene.  There was also bruising to the shoulders which would be consistent with impacts from a hammer.
27. Having left Gillian Raine lying on the ground, the offender then made his was to the Happy Shopper, from where he rang his mother and then the police saying that he had just murdered someone and that he was expecting to be arrested. The police operator kept him talking on the telephone. He remained calm throughout the call. Police attended and arrested him. On the way to the Police Station he said to the Police, ‘I wanted to kill her’.
28. When arrested for murder at Consett Police Station at 9.28 am in reply to the caution he said, ‘I’m happy, it’s nothing she didn’t do to me’. Later in his cell at 9.37 am he said, ‘I did not run because I knew I was going to be interviewed and if you are man enough to do the crime he must do the time’.    
29. The offender was interviewed at Durham City Police Office on the 24 January and again on the morning of 25 January.  He told the police about his relationship with Pamela and how she had broken it off.  He told them he had been drinking heavily on the days prior to the 24, and that he had decided to kill Gillian Raine. He had booked a taxi and taken the knife from the kitchen and the hammer from a drawer in his conservatory.
30. The offender told the police that he had been dropped off by the taxi and had then kept watch on the house, waiting for the lights to come on. She was later than usual in leaving the house. Whilst he was waiting, he had at one point contemplated going home and giving up to the idea. He had waited with the hammer in his hand and when she had come out, he had followed her. She stopped to talk to a neighbour so he had gone round the back of the houses in order to get ahead of her. She then spoke to another neighbour, so he waited to attack her. He stood in front of her and she said, ‘I’m going to phone the police. I told you to stay away from me and Pamela’. He had replied, ‘you will have to run’.
31. He told the Police that when Gillian Raine had asked what he had in his hand he had put the hammer close to her face. She started to run and he said, ‘I used the hammer to hit her across the head once. I didn’t really want to kill her but I did as well. I was mixed up with all sorts of feelings because she really hurt me bad’. She fell on the ground and he remembered leaning over her thinking that he ought to finish her off because he knew he was going to be arrested. As he was going to spend his life in prison, he may as well just get on with it.  He was asked what he meant by saying ‘finish her off’ and he said, ‘to make sure she was dead’.
31. He could not remember how many times he had stabbed her, but he remembered that the knife had broken, so he had used the hammer again and hit her all over because he wanted to make sure that she was dead. He had done this because she was preventing him from seeing Pamela.  He also told the police that he was not just planning on killing Gillian Raine, but Pamela and himself as well; ‘I thought as Gillian left the house, I killed her, the door is probably open. I didn’t have the key. I would walk in the house and kill Pamela and me, but at least we would be together’.
32. The offender submitted samples for analysis that showed that he had neither alcohol nor drugs in his system.
7.	Although the offender had committed the killing in the presence of a neighbour, had called the police, had immediately admitted responsibility for the killing and had pleaded guilty to manslaughter at the first reasonable opportunity, he did not plead guilty to murder until later.  Mr Robson QC who appeared for the offender before HHJ Goss, wrote in his written arguments for this Court:
Although the respondent did not plead guilty at the first opportunity this must be seen in the context of the anxiety of his legal advisors about the severe learning difficulties of the respondent, his intelligence being in the bottom 1% of the population. His legal advisors felt it to be their professional duty to explore the possible defences of Diminished Responsibilities and Loss of Control. To that end a consultant psychiatrist and a psychologist were invited to provide reports and the “tipping disclosure” of the interview of the deceased’s daughter was not available until immediately before his decision to plead guilty. Communication with him was never easy and counsel thought it right to discuss the matter in person with the psychiatrist and the parents of the respondent.
8.	The reference to the tipping disclosure is a reference to the fact that Pamela Raine had made a late video statement in which she had made it clear that she had wanted to end their relationship and that it was not at her mother’s behest and that this had helped to persuade the offender to plead guilty to murder. 
9.	A letter from the offender to the sentencing judge was read out in which he expressed his sorrow at the pain he had caused everyone, including that ‘cruel bitch’ the deceased. The offender’s mother gave evidence. She stated he was a very nice and kind member of the family. He was much loved by his siblings. He had his problems but was making progress. She believed Gillian Raine to be very controlling and unkind to him. The prosecution did not accept this and the sentencing judge said he did not feel it necessary to make any finding on it.
10.	Dr Nadkarni, a psychiatrist, gave evidence.  He had earlier prepared a report which was before the Court. He stated that the offender did not suffer from autism, which he had originally considered possible. He was of very limited intelligence, being in the bottom 1% of the general population. He had emotional and social communication difficulties. He perceived Gillian Raine as being the cause of all his problems. He accepted in cross-examination that he had been capable of planning this murder. He was obsessively in love with Pamela Raine.
11.	The offender had no previous convictions.
12.	A Pre-Sentence Report was prepared. The author noted the psychiatrist had concluded that the offender was not suffering from a mental illness at the time of the offence and that the psychologist was of the opinion that he does not have a personality disorder; his excessive consumption of alcohol was ‘the main cause of his problems rather than his intellectual difficulties’. 
13.	The following aggravating features were present:
i)	The attack was premeditated – over and above simply taking a knife with him to the scene intending to use it as a weapon – the offender was armed with two weapons, both of which he used.  He knew where the deceased lived and he had gone to the outside of her home knowing he would find her.  He then waited to attack her. 
ii)	The attack itself took place in public in front of another woman. 
iii)	The offender knew the daughter of the deceased had Asperger’s Syndrome and the death of her mother would leave her without the support she had from her mother with whom she lived.
14.	We accept the following mitigating features: the offender had no previous convictions, he pleaded guilty and had the learning difficulties to which the judge referred in passing sentence.
15.	In passing sentence the judge said:
On the 26th September of this year when the case was listed for trial you pleaded guilty to the murder of Gillian Raine on Monday 24th January of this year. She was 53 years of age when she died. You are now 25 years of age having been born on the 18th of October 1986 and you have no previous convictions.
Gillian Raine died as a result of the stab wounds you delivered to her neck when you attacked her with a knife and hammer you had taken with you to outside her home. You hit her over the head and shoulders with the hammer and you then kicked her on her front to prevent her getting up before stabbing her twice in the neck and in the chest, causing the knife blade to break from the handle in the last blow that you delivered.
You told the Police that you went to her house early that morning intending to kill. There was some confusion in your mind whether you intended to kill Gillian Raine or her daughter, Pamela, with whom you had previously been in a relationship or both of them and you then intended to kill yourself. You had previously attempted to end your own life and over the preceding months you entertained suicidal thoughts. These thoughts were generated by your obsessive love for Pamela. You could not accept her determination to end your relationship and you blamed Gillian Raine for ending that relationship.
I accept on all the evidence before me, including the written evidence, that Gillian Raine was understandably protective and possessive of her daughter and would make her views known. You had met Pamela at college and had been in an on and off relationship with her for a number of years. Indeed, up to two years ago you had lived with Pamela and her mother and had been asked to leave because of your behaviour. Pamela had attempted to end the relationship on a number of occasions but you wanted it to continue. I don’t find it necessary to attribute responsibility for the ending of that relationship. The important fact is that you were obsessively in love with Pamela and you could not accept rejection. 
You are someone with learning difficulties and your view of reality was obscured by your low intelligence combined with the force of your affection for Pamela. It was a brutal and intended killing in which your victim will have suffered prior to death. Her loss has had a marked impact on those close to her left behind as I have read in the victim personal statements. A much loved family member has been taken from them. No sentence of the Court can undo what you did and the consequences of your actions.
I am required by law to pass a sentence of life imprisonment and that is the sentence I pass. I must also fix the minimum term to be served before you can be considered for release by the Parole Board. Pursuant to the provisions of schedule 21 of the Criminal Justice Act 2003 the starting point when determining that sentence is 25 years, this being a case in which you took both a knife and hammer to the scene of the murder in order to, and did use them, to commit the murder.
I then have to take account of aggravating and mitigating factors to the extent that they have not been allowed for in the choice of starting that point. Although there was a significant degree of premeditation in the offence I consider such premeditation is reflected in the high starting point. In mitigation I take account of your adjustment disorder and the fact that you are a vulnerable individual with learning difficulties contributing to emotional and social limitations. Nevertheless, the reporting psychologist did conclude it was excessive alcohol use rather than intellectual difficulties that were the main cause of your behavioural problems. I note you have no previous convections. I also give you substantial credit fro your plea of guilty, not seeking a verdict of manslaughter based on loss of self-control.
16.	Later in this judgment we shall consider whether the judge was right to choose a starting point of 25 years. On the assumption that he was right, it is submitted by the Solicitor General that the judge was wrong to reduce that to 18 years to reflect the plea, the offender’s mental condition and the absence of previous convictions. 
17.	In so far as the plea is concerned, the judge said that he was giving substantial credit for the plea and for not seeking a verdict of manslaughter based on loss of self control. The Solicitor General submits that in the light of the delay in pleading to murder and the late video which operated as a “tipping disclosure”, the judge should not have given substantial credit. Mr Richmond does not accept that submission. 
18.	In our judgment HHJ Goss was entitled to give a significant reduction for the plea (a reduction the extent of which is limited by the Definitive Guideline “Reduction in sentence for a guilty plea”) having regard to his immediate admission to the killing and the fact that leading counsel would inevitably have wanted to be assured that the offender’s mental state did not have the effect of reducing murder to manslaughter. Given the unusual features of the evidence (a killing done in public, in the presence of a witness, followed by a call to the police to come to the scene, immediate admissions and a history of mental disability) any responsible counsel would have advised the offender not to plead guilty to murder until various enquiries of experts had been made.
19.	The Solicitor General also submitted that the judge gave too much weight to what the judge, in addressing the offender, described as “your adjustment disorder and the fact that you are a vulnerable individual with learning difficulties contributing to learning difficulties”, whilst noting the role of alcohol in the offender’s behavioural problems. However, as we have already said, the offender submitted samples for analysis that showed that he had neither alcohol nor drugs in his system at the time of the killing.
20.	We agree with Mr Richmond that the judge was entitled to reduce the 25 years to 18 years to reflect the mitigating features.  
21.	We turn to the starting point. The Solicitor General submits that the judge should have started with a higher starting point than 25 years.  He submits that the judge was wrong to have concluded that the “significant degree of premeditation” was already reflected in the higher starting point of 25 years.  This was not a submission made to the judge by the prosecution at the time of sentencing. 
22.	The effect of paragraph 5A of Schedule 21 is that the starting point will normally be 25 years (unless the case falls within paragraph 4(1) or 5(1)) if the offender took a knife or other weapon to the scene intending to commit any offence or have it available for use as a weapon. In Kelly and Ors [2011] EWCA Crim 1462, the Lord Chief Justice has explained how paragraph 5A should be interpreted.  In paragraph 53 of the decision, the Lord Chief Justice makes it clear that the premeditation required by paragraph 5A of the Schedule may be less than the “significant degree of planning or premeditation” referred to in paragraph 10 as an aggravating factor. We add that it is clear from paragraph 11 of the Schedule (which provides that lack of premeditation is a potential mitigating factor) that some degree of premeditation is inherent in paragraph 5A.
23.	In this case it seems clear that the offender had formed the intention to kill by at least the night before, given what he said in the Castleford Club, and probably earlier. The judge used the words "a significant degree of premeditation in the offence" and, in our view, he should have found a significant degree of premeditation beyond the premeditation which is inherent in paragraph 5A.  As we have said, the prosecution made no such submission to the judge to that effect.  If such a submission had been made and accepted by the judge, he would have increased the starting point from 25 years.
24.	No doubt in choosing what period to add on to the 25 years, the judge would have wanted submissions from the offender’s counsel about the premeditation, bearing in mind the offender’s mental condition. In Kelly we note that the judge chose a starting point of 28 years, an increase of 3 years.  In that case the level of planning and premeditation was far greater than in this case. Any increase from the starting point in this case is likely to be modest.
25.	Therefore whilst we accept that the judge was wrong not to have adopted a starting point of more than 25 years, we have no doubt that, on the facts of this case, that the failure to do so does not make the minimum term unduly lenient. We therefore do not interfere with the minimum term.