Case No: CAO REF: 201401608 A6
Neutral Citation Number: [2014] EWCA Crim 2616
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
HIS HONOUR JUDGE PONTIUS
LOWER NC 201401608 A6*A
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 17/12/2014
Before :

THE HONOURABLE LADY JUSTICE SHARP
THE HONOURABLE MR JUSTICE BLAKE
and
THE RECORDER OF WESTMNSTER
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Between :

	AARON DE SILVA	Appellant	
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	R	Respondent	

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M HOLLAND QC (instructed by Registrar ) for the Appellant
Paul Jarvis (instructed by CPS) for the Respondent

Hearing dates: 7 November 2014 
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Judgment
The Honourable Mr Justice Blake:
1.	This is a renewed application for leave to appeal against a sentence for an offence of murder of life imprisonment with a minimum term of 32 years passed on 28 February 2014 by HHJ Pontius sitting at the Central Criminal Court. At the conclusion of the hearing we indicated that we would grant leave and would reserve our decision having heard submissions from Mr Holland QC for the appellant and Mr Jarvis  for the prosecution.
2.	The offence occurred on 10 November 2012 in the early hours of the morning at 60 Hazlebury Road Fulham which was and had been for 50 years the home of Mr and Mrs Griffiths. Mr Griffiths was 73 at the time of the offence. He woke shortly after 6.00am in the morning having heard the sound of the appellant breaking into his home through a kitchen window.  He went to investigate and shortly thereafter was subjected to an attack of horrifying savagery when 22 knife wounds were inflicted mainly to the chest and abdomen but some to the back and the sides. The judge was satisfied from the ferocity of the attack,  the location of the wounds, some of which penetrated the heart and the liver and the degree of force with which they were inflicted,  that the appellant, desperate to make his escape and evade identification, struck the blows intending to kill rather than merely cause really serious harm.  Mr Griffiths was found dead or dying by his family and friends a few moments later, and they lost a much loved husband, father, and grandfather, as starkly and simply presented in the victim impact statements before trial.
3.	Despite some confusion in the documents before him, the judge accepted that the appellant was born in January 1993, and was therefore 19 years and two months at the time of the offence and 21 years one month at the time of sentence. 
4.	 He has had a troubled childhood. At the age of seven armed police entered his home and arrested his father at home and his father was sentenced to a very substantial term of imprisonment. At the age of nine he became a looked-after child and accommodated under s.20 Children Act as there had been concerns of extreme domestic violence within the family.  At the age of 11 he was placed by the local authority in a residential school with a statement of special educational needs. In July 2005 at the age of 12 he made his first appearance before a juvenile court for an offence of criminal damage. In the ensuing five years he was convicted on 23 further occasions for a range offences including convictions for battery, assault occasioning actual bodily harm, burglary  (four occasions), having a bladed instrument (two occasions)  and aggravated vehicle taking.  In October 2010 he was given a youth rehabilitation order by the Brent Juvenile Court for offences of burglary and theft, having a bladed article in a public place, and aggravated vehicle taking.  Thereafter, he was convicted of robbery, assault occasioning actual bodily harm, another offence of having a bladed article and threatening behaviour. The longest sentence he received during this period was 18 months detention in a young offenders institution.  On 30 August 2012 he was given a community order with an unpaid work requirement for an offence of interfering with a vehicle.
5.	The appellant was arrested shortly after Mr Griffith’s murder and remanded in custody first at HMP YOI at Feltham, shortly afterwards he was transferred to HMP Belmarsh because of his aggressive and disruptive behaviour.  In April 2013 he was transferred to Broadmoor Hospital as a result of concerns as to his mental state and fitness to plead.  In August 2013 his treating physician Dr Sengupta, a consultant psychiatrist, provided a very detailed report as to the appellant’s social, medical and behavioural history, examining a wide range of materials, concluding there was no evidence of a psychotic mental disorder, and such symptoms as had been displayed had responded to medication. He concluded that the appellant suffered from a dissocial personality disorder and hyperkinetic conduct disorder, whose combined features included: callous unconcern for the feelings of others; gross irresponsibility and disregard for social norms; incapacity to maintain enduring relationships; very low tolerance to frustration and low threshold for discharge of aggression, including violence; incapacity to experience guilt or profit from experience.  There were difficulties in persuading the appellant to cooperate with his legal team and defence psychiatric assessments.  Initially he was unwilling to accept that he was even present at the scene.  On 30 September 2013 he accepted that he was present and had inflicted the wounds and pleaded guilty to an offence of aggravated burglary, for which he was subsequently given 12 years imprisonment concurrent with the sentence of life imprisonment. As he was aged 20 at the time of his plea, the Registrar has pointed out that the reference to imprisonment should have been to detention, and we direct that the correct form of sentence be substituted. 
6.	The appellant then asserted that he was guilty of manslaughter by reason of diminished responsibility, but none of the four psychiatrists who examined him were able to detect a mental illness or a mental disorder that had substantially impaired his ability to form a rational judgment or exercise self control.  This defence was abandoned at trial and the issue left to the jury was whether he had intended to cause Mr Griffiths at least really serious harm. By the time of his trial he had been transferred back to Belmarsh and was considered to be both fit to plead and capable of forming the relevant criminal intent. We have been informed that since sentence the appellant was in August 2014 transferred back to Broadmoor Hospital where he is once again being assessed, but we do not consider that this information requires us to adjourn this appeal. 
7.	The experienced sentencing judge had the advantage of assessing the appellant when he gave evidence at the trial.  He explained his sentence in carefully constructed sentencing remarks as follows:
i)	He took as a starting point under Schedule 21 of the Criminal Justice Act 2003 the term of 30  years under paragraph 5 (c) (2) as this was a murder done for gain (namely in the furtherance of a burglary).
ii)	He found aggravating features namely that:  the appellant had equipped himself with a knife before entering the premises with foresight of potential use of it in the course of a domestic burglary; the repeated nature of the ferocious attack on an elderly and vulnerable victim in his own home, and the appellant’s previous convictions including an occasion in 2010 of burglary when he had with him a bladed weapon.
iii)	There was no mitigation for a plea of guilty, expression of remorse or a lack of intention to kill.
iv)	The judge took account of the medical evidence he had read but was firmly of the view that this appellant’s culpability 
“was not and is not  lowered to any discernible extent by the fact  that he has for many years  suffered from a personality disorder, a condition  far from  uncommon amongst those who commit murder”.
v)	As against these matters, he acknowledged the appellant’s young age but noted the history of offences although none involved violence of the sort inflicted on Mr Griffiths.
vi)	He made no reference to a lack of premeditation of murder before the burglary, but noted that the appellant had:
“made a conscious decision to commit burglary armed with a lock knife in his shorts knowing that a situation might arise  where he would need to deal with a householder roused from sleep confronting him in the act of burglary. That in fact was more than a possibility; it was a realistic likelihood which I have no doubt he fully recognised”.
8.	In his written grounds of appeal and oral argument, Mr Holland submits that horrendous as this senseless murder was, the judge erred in reaching an end point of a minimum term of 32 years for an offender of 19 years old at the time of the crime with his unhappy social history and behavioural disorder and whose previous offending had not included offences of wounding or grievous bodily harm.  He draws attention to the observations in R v Peters and others [2005] 2 Cr App R S 101 that age and maturity are important factors when dealing with an offender under 21 at the time of their offences and R v Burney  and others [2010] 2 Cr App R 61 at [27] to the effect that the researches of counsel had provided no instance of offender aged 18  receiving a minimum term as high as 28 years.
9.	We have had the benefit of a detailed written response to these grounds from the respondent who points out that absence of premeditated murder may not amount to a significant mitigating factor if there was pre-meditated aggravated burglary with a weapon that was in fact used with intent to kill: see R v Hummerstone [2014] EWCA Crim 270 at [21].  Mr Jarvis submitted orally that youth of itself does not lead to a significant reduction if culpability remains high.
10.       In our judgment the judge was right to identify the aggravating features that he did. He was also entitled to reach the conclusion that neither the appellant’s personality disorder nor the absence of premeditated intent to kill were significant factors of mitigation.  Nevertheless, his task was to fix a sentence reflecting the seriousness of the offence and every other relevant factor including the age of the offender, using the statutory guidance but not being rigidly tied to it. We have no doubt that a minimum term of 32 years  for a young man who killed when aged 19 is a very severe sentence, and perhaps uniquely so. This was a dreadful crime where a much loved husband and father was brutally attacked in his own home by an offender intent on aggravated burglary. Nevertheless, his age at the time is a significant factor in mitigating his culpability: young offenders are more likely to be impulsive, unthinking, and respond to situations with excessive and gratuitous force.  Whilst his personality disorder does not diminish his culpability for his deliberate acts and use of deadly force, along with his youth it may explain his failure to have learned lessons from previous encounters with the law.  Looking at all of the relevant factors and conscious of the need not to inflate the combination of aggravating factors where a 30 year starting point  for murder in the course of a burglary is indicated for an offender over 21,  we conclude that the overall sentence was too high  and accordingly manifestly excessive. We propose to quash the minimum term of 32 years and substitute for it a term of 28 years. To this extent this appeal is allowed.