No. 2009/00440/A8
Neutral Citation Number: [2009] EWCA Crim 1489
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Thursday  9  July  2009

B e f o r e:

LORD  JUSTICE  KEENE

MR  JUSTICE  HOLMAN

and

THE  RECORDER  OF  NOTTINGHAM
(Sitting as a Judge of the Court of Appeal, Criminal Division)

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R E G I N A

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WESTLEY  ANTHONY  IBE
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Mr M Stevens appeared on behalf of the Appellant
Mr M Fenhalls appeared on behalf of the Crown
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J U D G M E N T
Thursday  9  July  2009

LORD JUSTICE KEENE: I shall ask Mr Justice Holman to give the judgment of the court.

MR JUSTICE HOLMAN:
1.  This is an appeal against sentence brought by leave of the single  judge.  The issue in this case is as to the minimum term which must be served by the appellant who has been sentenced to life imprisonment after a conviction for murder.
  
2.  The appellant is now aged 29.  On 22 December 2008, at the Central Criminal Court, after a trial, he was convicted of murder.  Inevitably he was sentenced to life imprisonment.  The trial judge, His Honour Judge Pontius, fixed the minimum term to be served as 22 years, less the time already spent on remand.  

3.  The essential factual background is as follows.  The deceased was Janet Hossain.  She was aged 32.  She was separated at the time from her husband.  She was the mother of four children, then aged 13, 11, 10 and 8.  Her children all lived at home with her.  About two years beforehand she had met the appellant at a gym.  He worked at the gym and she was a member there.  They began a relationship.  From time to time the deceased would visit the appellant's home where they had a sexual relationship.  

4.  On the evening of 19 April 2007, after settling her children for the night, the deceased went, as from time to time she did, to the home of the appellant.  It appears that they had sexual intercourse and then spent time together.  At some stage, for reasons which are not clear, the appellant strangled her.  He then put her body into a large laundry-type bag, carried it downstairs and placed it in the boot of her own car to which he had the keys.  He drove the car a distance of some miles from his home and parked it in a public car park in Tilbury.  After her death he had access to her mobile phone which she no doubt had had with her, and he created invented text messages from her telephone to his telephone so as to suggest that she was still alive and in communication with him.  

5.  The following morning her children awoke and could not find their mother.  They contacted their grandparents (her parents) and very soon the police were involved.  

6.  The ensuing days must have been the most appalling time for all her family.  She was missing.  They had no idea where she was and no idea what had happened to her.

7.  The police rapidly became aware of the connection between the deceased and the appellant.  On 21 April 2007 the police first asked the appellant if he knew anything about her whereabouts.  He said that she had been with him that evening but that she had left and he did not now know where she was.
 
8.  Following further enquiries by the police the appellant was arrested on suspicion of murder on 22 April 2007.  There were a  number of interviews on 22 and 23 April, during all of which he maintained that he did not know where the deceased was or what had happened to her. 
 
9.  At about 9.15pm on 25 April the police found the deceased's body in the boot of her car in the car park in Tilbury.  At about the same time the appellant went voluntarily to the police station.  In an interview shortly after midnight on 26 April 2007 he told the police that he had killed her, that her body was locked in the boot of her car, and that her car was parked somewhere in Tilbury.  In fact, as we have indicated, the police had already found the body by that time; but there is no reason to suppose that, when he told the police where the body was, the appellant was aware that it had already been found.
 
10.  The deceased was clothed in her own clothes and, other than the indignity that she had been placed in a laundry bag, there was no sign of dismemberment or other post-death ill-treatment of the body.

11.  Nearly ten years earlier the appellant had been very severely injured in a car accident.  He had been unconscious for an appreciable period of time and indeed had very nearly died. 

12.  Although he had admitted the killing, for a long time the appellant claimed that he had acted in self-defence; further, and in any event, that his responsibility was diminished as a result of the lasting mental damage that he had suffered in the road accident.  This was the subject of assessment by two consultant psychiatrists: Dr Wilkins on behalf of the defence, and Dr Joseph on behalf of the prosecution.  Both psychiatrists agreed that the appellant had suffered lasting, lifelong disability as a result of the road accident.  It was described by Dr Joseph as organic personality disorder, also known as frontal lobe syndrome, together with a secondary diagnosis of organic bipolar affective disorder.  The psychiatrists disagreed, however, as to whether or not that undoubted disability and disorder had substantially impaired the appellant's responsibility for his actions at the time of the killing.  By their verdict, the jury plainly rejected the defence of diminished responsibility.  

13.  The reports of the psychiatrists were specifically directed to the question of diminished responsibility and do not directly engage the question that arises under paragraph 11(c) of Schedule 21 to the Criminal Justice Act 2003, namely whether the appellant suffered from any mental disorder or mental disability "which (although not falling within section 2(1) of the Homicide Act 1957) lowered his degree of culpability." 

14.  Following the conviction, the judge inevitably had to pass a life sentence and was required to apply the provisions of Schedule 21, to which we have just referred.  In the circumstances of this case, that clearly provides a starting point of fifteen years as the minimum term to be served.  The judge was then required to consider whether there were aggravating and/or mitigating factors, including those set out in paragraphs 10 and 11.

15.  During the course of his sentencing remarks Judge Pontius said as follows:

		"There is no doubt that the car crash in 1998 altered your life fundamentally and immeasurably.  You suffered brain damage which directly led to abnormality of mind, the nature of which is not in any dispute.  As a result, you will continue to suffer from organic bipolar affective disorder, for which you have been taking medication on a permanent basis, and with which you are now compliant.  That should ensure some stability in your condition.  That said, however, your mental disorder cannot, in my firm view, lower the degree of culpability you bear for this grave crime, which robbed Janet Hossain's parents and her own children of a caring and loving daughter and mother.  You deliberately throttled the life out of that tiny woman, exerting the very considerable strength of a fit and powerful man in order to do so.  Given the way you killed her and the way you later described that act, I am in no doubt that at the time you intended to kill her, not merely seriously to hurt her.  ...."

16.  During the course of his measured submissions this morning, Mr Stevens, on behalf of the appellant, has suggested that, despite those observations by the trial judge, there was and is a mitigating factor in this case under paragraph 11(c) of Schedule 21, namely that as a result of his undoubted mental disorder or mental disability, the degree of the appellant's culpability for his offence was lowered.  

17.  We do not feel able to accept that submission.  The issue that arises under paragraph 11(c) was plainly fully and carefully weighed and considered by His Honour Judge Pontius in the passage from his sentencing remarks that we have quoted.  He had available to him not only the psychiatric reports which are available to us, but also the advantage of having heard both psychiatrists give no doubt considerable evidence at trial.  Further, he had heard evidence from the appellant himself.  In our view, he was in a far better position than we could possibly be to form the essential view as to whether or not the undoubted mental disorder or mental disability actually operated so as to lower the degree of culpability.  The judge expressed his firm view that it did not.  That is not a conclusion that we are able to, or do, go behind.  

18.  Leaving that factor out of account, therefore, the question that arises is the extent to which there were and are other aggravating or mitigating factors in play in this case.  So far as aggravating factors are concerned, there is only one under paragraph 10 which has been identified, namely under paragraph (g), concealment of the body.  There was no destruction or dismemberment of the body, but plainly by his acts that we have described, the appellant concealed the body for the period between the killing itself and the early hours of 26 April 2007 when he admitted to the police that the body was in her car and told the police, at least in general terms, where the car was.  To  that extent there was the aggravating factor of concealment.

19.  Amongst mitigating factors Mr Stevens has stressed the lack of premeditation.  The judge expressly referred to that.  He said: 

		"I accept, however, that this murder was not planned nor premeditated, and thus your intent was formed very shortly before or at the time of the act itself."

20.  The only other mitigating factor that Mr Stevens has identified and sought to rely on is the age of the appellant, coupled with a lack of any relevant previous convictions.  Certainly he had only two irrelevant and essentially very minor previous convictions many years earlier when he was a juvenile.  At the time of the offence the appellant was aged 27 and at the time of sentence he was aged 28.  We, for our part, feel unable to regard age as operating as a mitigating factor in this case.  He was neither very old, nor just out of adolescence.  He was a mature man in his late twenties.  He had already been married.  He had had responsible jobs.  In our view his age does not operate as a mitigating factor at all.

21.  The essential question is, accordingly, the extent to which the aggravating factor of concealment of the body on the one hand, and the mitigating factor of lack of planning or premeditation on the other hand, operate to alter the statutory starting point of fifteen years' minimum term.  

22.  As to the aggravating factor of concealment the judge said as follows:

		"Immediately after killing Janet Hossain, you set about attempting to cover your tracks in a thoroughly cold-hearted and calculating way, not least by sending a text on Janet Hossain's own mobile phone to your own, thus creating the impression that when you had last seen her, she was alive and well.  Then in an equally callous way you bundled her lifeless body into the boot of her own car and drove the car to Tilbury, there to leave it concealed until sooner or later -- you did not care which -- it might be discovered. ....

		Those circumstances together represent seriously aggravating features of this crime, reflecting both at the time of the murder, and importantly in the hours which followed, a clarity of thought and purpose which demonstrate that you were acting deliberately."

The judge concluded:

		"As I have already indicated, the appropriate starting point, when I determine the minimum period you must serve, is fifteen years.  Bearing in mind all those features drawn to my attention during the course of the trial and today, I am in no doubt that the minimum term you must serve before becoming eligible to apply for release on licence is 22 years."

It thus appears that the judge added seven years to the statutory starting point of fifteen years -- that is, almost half as much again -- essentially to reflect the fact and period of concealment of the body for about five days after the murder.  

23.  We do not in any way seek to minimise the seriousness of the effect of the concealment of the body in this case.  As we have already said, those five days must have been a period of the most appalling agony and anguish for the parents, the children and other family members of this then missing person whose fate was unknown.  

24.  That said, we ourselves are firmly of the view that the judge simply added too long a period to reflect that one aggravating feature.  It does not in our view seem justifiable or appropriate that the appellant should have to spend no less than a further seven years in prison before he is considered eligible for parole simply to reflect those five days of concealment, the more so when account is taken of the mitigating factor of the absence of any planning or premeditation before the killing itself.  

25.  We understand the anguish of the family and are respectful of it, but in our view, balancing the lack of premeditation with the fact of concealment, the appropriate uplift from the statutory starting point was one of two rather than seven years.  

26.  We will accordingly allow this appeal to the extent that the specified minimum period to be served is one of seventeen years (less the time spent on remand), rather than the 22 years as fixed by the judge. 

27.  LORD JUSTICE KEENE:  We stress that that is the minimum period.  It does not necessarily mean that the appellant will be released at the end of seventeen years.  That decision will rest in the hands of the Parole Board.