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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 >> Mullen, R v [2008] EWCA Crim 592 (27 February 2008) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/592.html Cite as: [2008] 2 Cr App Rep (S) 88, [2008] EWCA Crim 592, [2008] 2 Cr App R (S) 88

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Wednesday, 27th February 2008

1. SIR IGOR JUDGE: Michael Mullen is now 22 years old. He has previous convictions typical of a feckless young man, but nothing whatever to compare with the dreadful incident which I am about to describe.
2. This led to his prosecution for rape and murder and conviction, on his guilty plea, on the 2nd July 2007 in the Crown Court at Leeds before Simon J, of rape and murder. The victim of those crimes was this applicant's 2-year-old niece. The judge imposed a sentence of life imprisonment. He then calculated that a period of 35 years, less the 137 days on remand, should be specified for the purposes of the life sentence. Appropriate orders were made in relation to forfeiture and so on, but they do not arise for further consideration today. For the offence of rape he imposed a sentence of 17 years.
3. This was a dreadful case. The victim was a little girl, born on 29th November 2004. She was the younger child of this applicant's brother and his partner. The children lived with their mother in a house with her 19-year-old brother. The little girl's father did not live at the house but he was a frequent visitor to it and often stayed there overnight.
4. The little girl shared a bedroom with her 3-year-old brother. She slept on a mattress on the floor. She was covered with a sheet under a duvet with a pillow. Normally speaking she wore a nappy and a pair of pyjamas and a dressing gown.
5. At about 5.30 on the afternoon of the 11th February 2007, her mother was at home with the children and indeed her brother. They had their tea, and just before 7.30 the little girl was put to bed. She asked for some hot chocolate and the mother made it and the uncle took it up. She drank it, and with a goodnight kiss from her mother, and her uncle, the light was turned off and the door was closed. All perfectly normal.
6. The mother and her brother then had something to eat. They were watching television in the evening whom there was a loud banging on one of the windows of the house. This applicant and his brother arrived, clearly very much under the influence of drink. They came into the house. There was an argument about the drinking. Everybody got involved and at some stage this applicant's brother went upstairs to see his daughter. He returned with the empty bottle that had contained the hot chocolate which she had had a little earlier. He made the child a little more chocolate, and took the bottle upstairs.
7. The bedroom door was ajar. The light was on. The child was lying on the mattress, underneath the quilt. The applicant was lying beside her, under the quilt with his arm over her. His coat was on the floor. The child was not moving. The applicant said something like "get out, she's asleep", so the visitor left the room and went downstairs. The mother asked where the applicant was and his brother said that he was upstairs with the daughter trying to get her to sleep. The argument continued. Then the applicant appeared downstairs. His boxer shorts were protruding from above his waistband and were twisted. He pulled the waistband forwards and was seen to look inside and his trousers were wet at the top of his legs. A telephone call was made for a taxi and the applicant asked for his coat. There was a discussion. The applicant and his brother left the house in the taxi and went back to their home. By now it was 9 o'clock.
8. A neighbour arrived and a conversation began, when the mother asked her brother to check on the child. When he went upstairs he found the door closed and the light off. He switched the light on. It was a horrific sight. The little girl was completed covered by the duvet but when he pulled it back, he saw her lying in a foetal position in part on her side. He noted what appeared to be faeces on the sheet. He rushed downstairs and told his sister and she came up and then she came down almost immediately, screaming, carrying her child in her arms. There was blood immediately visible on the little girl's legs. The pyjama bottoms and nappy had been removed and she appeared to be dead.
9. The emergency services were summoned. When the ambulance arrived a paramedic noticed bleeding from the child's vagina and smears of blood on the inside of both thighs. Attempts were made to resuscitate the little girl but they were unsuccessful. She was pronounced dead at hospital at 10.05 that same evening.
10. Postmortem examination revealed extensive injury to the child's vagina, consistent with her having been raped. Death was caused due to compression to the neck by a thin ligature, which must have been placed round the neck and pulled tight for a period of at least 30 seconds.
11. The mother telephoned the applicant's brother, her partner. He confronted the applicant. He was arrested at 1.15 in the morning of 12th February. Appropriate samples were taken. He was interviewed. He initially he decided he would not comment, then provided a prepared statement in which he accepted responsibility for unlawfully killing this child.
12. His computer was seized from his home address. It was examined. Indecent images of child sex abuse were found on it. Some of the images had been downloaded from the Internet a few days earlier, and one involved a level 5 image which involved sadism, a blindfolded pre-pubescent girl with a thin rope around her neck and breast, with her hands above her bound by a rope, and man placing his penis in her mouth. It is a dreadful crime.
13. The judge had before him psychiatric reports. Dr Berry concluded that the applicant was not suffering from any mental illness but he had several anti-social personality traits, particularly behavioural features of repeated offending, difficulty maintaining relationships and a history of unstable employment, many of the factors aggravated by his habitual misuse of alcohol and drugs. This psychiatrist was unable to gain any understanding of the offence. In a subsequent report he added that the applicant had what was described as "some degree of delay of emotional maturation" which may have had its roots in a significant history of early childhood problems and a chaotic and dysfunctional adolescence. Another psychiatric report from Dr Kent suggested that the applicant suffered from a personality disorder, the origins of which stemmed from his disturbed and difficult upbringing. He was however a person who had complex polymorphic sexual drives which included paedophilic sexual interests. The applicant had not provided an account of the offences. It was not possible therefore to know what was motivating him. The psychiatric believed he was a highly dangerous individual capable of lethal sexual crimes against children. His psychopathic disorder was not treatable.
14. The pre-sentence report, dated 19th June, recorded the view of the writer that in view of the applicant's denial, lack of memory, inability to offer a motivation for his offending and non-acceptance of underlying paedophilic interests, it was difficult to understand why he had committed these offences; but he represented a high risk of serious harm to children and a high risk of re-offending.
15. The judge described these offences as appalling crimes; that was not an exaggeration. He also recorded that a great deal of effort had been made to try to discover why on earth this man had committed these crimes. All that was apparent was that he had strong paedophilic tendencies and the offences were engendered by those tendencies. The judge was prepared to accept that the offences as such were not premeditated, but equally he could not accept that they were sudden and compulsive. The judge recorded the opinions of the psychiatric witnesses. He could find no possible understanding of what had happened and why it had, but it was obvious that the applicant posed a very serious risk to children, and it was unclear whether the time would ever come when he would cease to pose a very serious risk to children.
16. The judge reflected whether he should make a whole life order in this particular case, but he took account of the applicant's guilty plea and of his age and the evidence of late maturity.
17. When fixing the tariff period therefore the judge took a starting point of 30 years' imprisonment. He then reflected on the additional aggravating features, the obvious vulnerability of the child, the natural degree of trust reposed in her uncle and the suffering which the little girl must have undergone, before she finally died. From those facts he came to the conclusion that the period to be specified would be 35 years.
18. The essential argument, in support of this application, by Mr Raymond Walker QC, is that the tariff period was excessive, given the applicant's guilty plea to rape and murder, as soon as he had seen his leading counsel and effectively therefore at the earliest available opportunity. The sentence was imposed on a still relatively young man, twenty-one-and-a-half years old at the time when the offence was committed, and it was argued that in terms of his culpability the sentence imposed did not sufficiently allow for the applicant's age and comparative youth and the evidence of delayed maturing.
19. The sentence must of course be examined in the light of the fact that this particular crime fell fairly and squarely within paragraph 4(2) of schedule 21 of the 2003 Criminal Justice Act. We do not see this as a borderline case, and we think the judge was right not to see it as a case on the borderline. This case, involving an adult aged over 21, fell plainly within these words "the murder of a child, if involving the abduction of the child or sexual or sadistic motivation."
20. The judge decided not to make such an order just because of the early guilty plea and to allow for the relative youth of the applicant. In other words express allowance was made for both those considerations when the judge decided that this case did not need be viewed as a whole life case. It is argued that the applicant's youth on its own should have led the judge to that conclusion in any event and, if so, the judge failed to give credit or sufficient credit for applicant's guilty plea. We do not agree that the judge's sentencing decision was or should be so compartmentalised. Without the guilty plea and the circumstances in which it was offered, the fact of the appellant's age and relative lack of maturity alone would not, in our judgment, have led to the conclusion, in relation to the whole life sentence, which the judge was able to reach by examining all the relevant facts as a whole. This applicant was not a child or a teenager; he must have known exactly what he was doing. He can have been in no doubt whatsoever of the fragility and defencelessness of his victim.
21. What the judge did, having decided not to apply a whole life tariff, was then to fix on a starting point of 30 years' imprisonment, again following loyally the provisions of schedule 21, then having done that, he reminded himself of the specific aggravating features. He was not merely entitled to do that, he was right to do so. What, in our judgment, he was not required to do was to readdress the applicant's guilty plea and the allowance to be made for his relative lack of maturity, so as to provide the applicant with a further second discount from the appropriate sentence. The benefit of those matters had already been given by the judge.
22. In those circumstances, notwithstanding Mr Walker's efforts on behalf of his client, this application is refused.