Neutral Citation Number: [2007] EWCA Crim 2318
Case No: 2006/4479/A7 and 2006/4540/A7
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL 
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 10 October 2007
Before :

LORD JUSTICE MOSES
MR JUSTICE PITCHERS
and
MR JUSTICE TREACY
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Between :

	George Romero Coleman 

Thomas Petch	First Appellant Second Appellant	
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	The Queen	Respondent	

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T Owen QC (instructed by the Registrar for Criminal Appeals) for the First Appellant and 
E Fitzgerald QC and Brian Mark (instructed by Michael Purdon) for the Second Appellant A J Robertson QC (instructed by the Crown Prosecution Service, Cleveland) for the Respondent

Hearing date : 23rd July, 2007
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Judgment
Lord Justice Moses : 
Introduction
1.	This is an appeal by the appellant Coleman and an application for leave to appeal by Petch against orders of Openshaw J pursuant to s.276 and paragraph 6 of schedule 22 of the Criminal Justice Act 2003.  Coleman and Petch were convicted of murder before Mr Justice Turner, at Teeside Crown Court, on 28 March 2002.  Turner J recommended that Coleman should serve 14 years before being considered for release by the Parole Board and that Petch should serve 20 years.  Those recommendations were endorsed by Lord Woolf CJ.  Before the Secretary of State had notified them of the minimum term which they were required to serve, the new regime was brought into force by s.269 of the Criminal Justice Act 2003.  Coleman’s appeal against his minimum term, by leave of the single judge, is pursuant to paragraph 14 of schedule 22 of the Criminal Justice Act 2003.  The appeal and the application raise similar issues; firstly, as to the effect upon the appropriate minimum term of the decision of the prosecution to proceed subsequently against a co-defendant, hitherto regarded by the prosecution as the principal offender, only on a charge of manslaughter, for which he received 9 years.  Secondly, both Coleman and Petch contend that the minimum term ordered did not adequately reflect the fact that at the time of the murder neither had an intention to kill the victim.
The Facts    
2.	The facts as recorded by Openshaw J were as follows:
“The defendants, and others, were concerned in a so-called ‘turf war’ concerning the supply, distribution and sale of drugs to prostitutes in Teeside and Middlesbrough.  The prosecution case was that at the beginning of August 2001, two men, Jonathan Crossling…and his brother Jason Crossling… believed that Craig Dalziel… had been robbing prostitutes of the drugs in their possession...Accordingly, they decided to kill him, to punish him and to deter others.  In order to carry their plan into effect they recruited a team, which included these defendants.
During the weekend of 4th/5th August 2001, the Crossling brothers, in the course of their search for Dalziel, visited the house at 4 Fallows Court, Newport, a “crack house” frequented by drug users and prostitutes.  They there learned that Dalziel might be at either of two other houses, one was another haunt of prostitutes and drugs abusers at 45 Errol Street, premises owned and managed by one Michael Moody.
On the evening of 5th August, Claire Burgess, a prostitute, had picked up a client, this was Kalvant Singh (the victim of the murder) whom she intended to take back to 45 Errol Street.  The defendant Coleman spoke to her as she did so; he made plain that he was looking for Dalziel; he asked her to leave the front door unlocked when she went there, obviously so that he (Coleman) and others could later burst into the room.  Claire Burgess then took Singh back to an upstairs back bedroom at 45 Errol Street, where – having taken drugs – they both eventually fell asleep.  She was later woken by the sound of footsteps running up the stairs and voices shouting, “Where is he?” (or words to that effect).  She gave evidence that the Crossling brothers then burst into the room; each had some sort of weapon hidden up their sleeves.  Jonathan Crossling attacked Singh; a struggle ensued which culminated in Singh being pushed through the glass of the closed bedroom window and falling onto the concrete yard below.  In the fall, he received fatal injuries.  The autopsy established that Singh had been kicked or punched before being pushed through the window.
Claire Burgess was forced to leave the room by Jason Crossling; she ran downstairs.  She saw Moody being severely beaten.  She saw the defendant Petch ram Moody’s head into a fish tank; the impact caused the plate glass tank to shatter, leaving glass embedded in Moody’s neck.  Whilst this was going on, Coleman was waiting outside in his car, ready to drive them off.  Moody suffered severe injuries including multiple fractures to the face; he was, in fact, lucky to survive; the attack upon him led to the defendants’ conviction upon the charge of causing grievous bodily harm with intent on Count 1.  Dalziel was the intended victim of the violence but it was also clear that the intention underlying the joint venture was to obtain drugs by whatever means including the use of serious violence.
Coleman then drove Jonathan Crossling, Petch and another to 60 Southfield Road, Middlesbrough.  Here, still looking for Dalziel and for any drugs that the occupants might have had in their possession, they kicked or forced open the doors to various bed-sits and subjected a number of people to severe assaults.  As at 45 Errol Street, Coleman never engaged directly in any of the violence but he was there [as] a ‘facilitator’ – as the judge called him – encouraging the others by his presence.  Paul Ward (the victim of Count 4, again laid as wounding with intent), had a Samurai sword repeatedly thrust at him by Jonathan Crossling, while the defendant Petch punched him about the head, causing a deep cut to his right eye.  Jonathan Crossling and Petch then forced open the door of a room occupied by Andrew Jessop (the victim of Count 5, laid as wounding with intent), they poked him in the stomach with the Samurai sword.  This did not result in a wound to Jessop’s stomach, but the blade was reversed and he was struck across the head with the handle causing a deep wound to the scalp.  All the men then left the address together.
In the early hours of Tuesday 7th August, Jonathan Crossling and the defendant Petch returned to 4 Fallows Court, where Crossling started an argument with Paul Thompson (the victim of Count 6, laid again as wounding with intent); the defendant Petch grabbed Thompson’s pony-tail and Jonathan Crossling began kicking him in the face; Thompson managed to struggle from the flat pursued by Crossling and Petch, who continued to kick him about the head, face and body.  The attack was witnessed by a neighbour and the police were called.  Thompson refused to make a complaint to the police in the first instance; he was treated in hospital for bruising to his face and body and a gash to the back of his head.”
Both Coleman and Petch were convicted of causing grievous bodily harm with intent and Petch was, in addition, convicted of three counts of wounding with intent.
3.	The judge recorded his view that Dalziel was the intended victim of the violence but:-
“It was the intention underlying the joint venture to obtain drugs by whatever means including the use of serious violence.”
4.	We should also add that, unfortunately, Openshaw J was not provided with written representations advanced on behalf of the appellant Coleman but recorded that Coleman had failed to make any such representations.
Disparity 
5.	It will be apparent from the account of the facts that, in the trial against Coleman and Petch, the prosecution alleged that Jonathan Crossling was the principal.  Claire Burgess’s account revealed that it was he who had attacked the unfortunate victim and pushed him through the bedroom window.  It was after she had been forced from the room that she saw Petch attack Moody.  This inevitably means that Petch was not present in the room where the victim was murdered.  The trial judge made his recommendations on the basis that Jonathan Crossling was probably the ringleader, with Petch as second-in-command.  He was of the view that Coleman had played a significant and important part in the planning.  
6.	At the time of the trial Jonathan Crossling had escaped and was awaiting extradition from Spain.  When he returned, as we were told by prosecuting counsel, it was feared that the main witness, Claire Burgess, would not be in a position to give reliable identification which distinguished Jonathan Crossling and his brother.  In those circumstances the prosecution accepted a plea of guilty to manslaughter from Jonathan Crossling, on which basis he was sentenced to a term of imprisonment of 9 years.  On the basis of the prosecution’s approach to Jonathan Crossling, Coleman and Petch contended that their convictions were unsafe.  This contention was rejected by this court ([2005] EWCA Crim 1183) on the ground that:-
“The law does not permit the court to take an overall view of the situation retrospectively and, in the interests of even-handedness, to declare the convictions of the appellants unsafe.”
7.	But the approach of the prosecution forms the basis of a contention that it is unfair and unjust to maintain the minimum sentences of far greater length against these appellants when the principal, as the prosecution had perceived him to be, is sentenced to a mere 9 years’ imprisonment.  It is accepted that the disparity between an indeterminate sentence and a fixed-term is inevitable in the light of the distinction between murder and manslaughter but nonetheless, it is submitted that the discrepancy between the minimum sentences and 9 years is so glaring that this court should interfere.
8.	There is no absence of examples of cases where this court allows appeals on the basis of disparity of sentencing notwithstanding that the sentence at issue would not, absent disparity, be regarded as manifestly excessive or the sentence against which it is being compared too lenient.  Attempts to identify some principle based upon this court’s view of whether the sense of grievance   is justified or whether “right-thinking” members of the public with full knowledge of the facts and circumstances would consider something had “gone wrong with the administration of justice” provide little guidance as to those cases in which this court’s sense of justice and fairness is offended or where this court has declined to reduce one sentence so as to pass two wrong sentences (contrast the approach in Fawcett [1983] 5 Cr App R S 158 and Stroud [1977] 65 Cr App R 150).  In Franksen [1996] 2 Cr App R S 366 the court reduced an appropriate sentence of 7 years’ imprisonment for possessing crack cocaine with intent to supply solely on the basis that a co-defendant who received half of that sentence had been too successful in attracting unjustified mercy from the sentencing judge.  
9.	We do not think that this court should attempt to identify some principle according to which it will or will not interfere on the grounds of disparity.  Justice in the sphere of criminal law requires a flexibility and sensitivity to the facts of particular cases which will be impeded by the identification of a principle which may be applied with too great a rigidity.  We prefer to consider the circumstances of the instant appeal and whether we take the view that the consequences are unjust.  
10.	We do not think that any injustice has been caused in this case by the events following the conviction of these two men.  They were rightly convicted of murder.  The events which followed were due, so far as we can judge, entirely to the manipulative effect on the system caused by Jonathan Crossling’s escape.  Of course, had he not done so, the jury is likely to have convicted all three and Jonathan Crossling would have received a sentence commensurate with his being the ringleader.  But we see no basis, in fairness to the prosecution and to the public, which requires us to allow Jonathan Crossling’s manipulation to have the effect of reducing what would otherwise be an appropriate minimum term in relation to the two convicted of murder.  Disparity is due to Crossling’s escape, not to any unfair approach adopted by the prosecution.  Jonathan Crossling’s sentence is attributable to his reprehensible good fortune which should not redound to the benefit of his co-defendants.  We reject this ground of appeal.
Intention to Kill             
11.	There is no doubt but that the absence of an intention to kill is a mitigating factor (see e.g. Harvey Sullivan [2004] EWCA Crim 1762 p 29).  The trial judge, Turner J, recorded the expressed intention of the Crossling brothers to kill Dalziel.  But the conviction of Coleman and Petch must have been on the basis the judge identified:-
“It was the intention underlying the joint venture to obtain drugs by whatever means including the use of serious violence.”
That does not permit an approach in setting the minimum term based on an intention to kill on the part of either Coleman or Petch.
12.	The minimum period must reflect what Openshaw J described as a degree of ruthlessness and determination.  In the case of Petch it must reflect the totality of his criminality as shown by four convictions for wounding with intent.  Although 22, he had a previous conviction for wounding with intent, consisting of unprovoked violence committed with a knife.  Coleman was much older but had a far less serious record.  It might be thought that in the light of the endorsement of the minimum sentences not only by the trial judge who had the best opportunity to assess the appropriate tariff, but also the Lord Chief Justice and Mr Justice Openshaw, that it would not be right to alter their agreed view as to the propriety of these minimum sentences.  But none of them had the benefit, as we have had, of the submissions now made to us.  That is not to say that oral submissions are necessary, in cases such as these, save in the most rare cases.  But neither of these two men has had the benefit of the forceful, moderate, and persuasive arguments addressed to us by Mr T Owen QC and Mr Edward Fitzgerald QC.  With the benefit of their argument we are able to place greater weight on the absence of intention to kill.  The impact of that mitigating factor is reduced in the context of the overall conduct of both Coleman and Petch.  But it must nevertheless be acknowledged.  We do not think that the minimum sentences at present do give sufficient recognition to that factor.
13.	For that reason alone we take the view that both the minimum sentences should be reduced; in the case of Petch the minimum sentence of 20 years should be reduced to a minimum sentence of 18 years, less 217 days to reflect the period spent on remand.  In the case of Coleman the minimum term of 14 years should be reduced to one of 12 years, less 7 months and 13 days to reflect the period he has spent on remand.  We shall give Petch permission to appeal and allow his appeal to the extent we have indicated.  We allow Coleman’s appeal and reduce his minimum term to the period we have indicated.