Neutral Citation Number: [2012] EWCA Crim 2035
Case No: 2012/00252
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HIS HONOUR JUDGE THORNTON QC
T20107453
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 09/10/2012
Before :

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE HONOURABLE MR JUSTICE MACKAY
THE HONOURABLE MRS JUSTICE DOBBS

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Between:

	Mohamed Khaleel	Appellant	
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	R	Respondent	

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S Stein QC for the Appellant
J Hallam for the Respondent

Hearing dates: 25th July 2012
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Judgment

The Lord Chief Justice of England and Wales: 
1.	On 19 December 2011 in the Central Criminal Court before His Honour Judge Thornton QC and a jury, Mohamed Khaleel, (the appellant) was convicted of murder.  He was sentenced to life imprisonment and a period of 33 years was specified as the minimum term under s.269(2) of the Criminal Justice Act 2003 (the 2003 Act).  Appropriate ancillary orders were also made.
2.	On 9 September 2010, the victim, Mr Zubrot, a homosexual aged 67, was found lying dead in his home in Greenford Middlesex.  He had injuries to the back and right side of his head and neck.  He was found, arms outstretched, lying on his back, wearing a pair of boxer shorts, with his shirt pulled up to expose his stomach.  
3.	A post mortem examination established that death had been caused by large stab wounds to the back of the head and neck, with multiple stab wounds to the neck and throat.  The condition of the body was consistent with his having been murdered on 30 August.
4.	There was evidence of association between the appellant and the deceased prior to his death.  They had first met three months before in a park in Ealing.  The deceased enjoyed short term relationships with men of Asian or Mediterranean extraction and he and the appellant, who is now 39 years old, had met on  three previous occasions. During at least one of them they had returned together to Mr Zubrot’s flat.  The appellant’s interest in the deceased may well have been commercial. 
5.	On the day of the murder they walked together and returned to the victim’s home.  There they consumed some alcohol.  Quite what led to the killing was unclear.  It looked as though the appellant took his victim by surprise from behind, cutting his throat and jugular vein in two, while stabbing him in the neck.  Afterwards the appellant disappeared from the scene, taking the murder weapon, a knife, with him.
6.	At the time of this murder the appellant was on licence, having been released from prison following his conviction for a homicidal attack which had taken place in January 2003, in strikingly similar circumstances.  On this occasion the appellant was convicted not of murder but of manslaughter on the grounds of provocation.  He was sentenced to 8 years imprisonment.  The issue in the appeal arises from the way in which the judge reflected the impact of this first homicidal attack when assessing the seriousness of the offence and the appropriate minimum term. 
7.	The judge was prepared to accept that the murder of Mr Zubrot was not carried out for gain, and proceeded on the basis that there was no clear evidence that the appellant had taken a knife to the scene, and he could find no obvious planning or premeditation. On the other hand, he took into account the nature and ferocity of the attack, which he regarded as a cold blooded execution, as a seriously aggravating feature of the offence. 
8.	The judge addressed the previous conviction on the basis that the deliberate previous killing by an offender was a highly aggravating factor affecting the seriousness of the instant offence.  All the ingredients of the offence of murder were proved in relation to the 2003 conviction for manslaughter, but the jury had accepted that the appellant might have lost his self control as a result of provocation by the deceased.  Nevertheless, the conviction involved deliberate homicide.  He considered the terms of Schedule 21 of the 2003 Act, and asked himself whether the seriousness of the current offence fell within the “particularly high” category within paragraph 5.  He noted that while paragraph 5(2) made no reference to a previous homicide in the list of circumstances which would normally fall within that category, the list itself was inclusive rather than exclusive.  In the end, because of the previous conviction, and the circumstances in which it occurred, he took the view that the seriousness of the instant offence was indeed particularly high.  That gave him the “appropriate starting point” for the determination of the minimum term, that is, 30 years.
9.	Mr Sam Stein QC for the appellant submitted that this approach was wrong.  The previous conviction did not bear on the seriousness of the instant offence.  Although the previous conviction was a seriously aggravating feature bearing on the sentencing decision, it was not a murder, and as other types of unlawful killing are not included in the cases listed in paragraph 5(2), even though the list is not exclusive, it could not be used as part of the process of deciding the category of seriousness which applied to the present case.  The cases set out in paragraph 5(2) are confined to the facts of the offence itself, rather than the situation of the offender.  Schedule 21 provides the legislative policy laid down by Parliament, outside which it is inappropriate for the judge to travel.  The starting point should therefore have been 15 years and then, because of the aggravating features, including the previous conviction for homicide, the minimum term should have been fixed at, as he put it, “just below 30 years”.
10.	So far as relevant to this appeal, Schedule 21 of the Criminal Justice Act 2003 provides: 
“Starting Points
4 (1) If –
(a) The court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it), is exceptionally high and
(b) The offender is aged 21or over when he committed the offence,
	the appropriate starting point is a whole life order.
(2)  Cases that would normally fall within sub paragraph (1)(a) include ….
(d)  a murder by an offender previously convicted of murder.
5 	(1)  If –
(a) The case does not fall within paragraph 4(1) but the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it is particularly high…
	the appropriate starting point, in determining the minimum term, is 30 	years. 
(2) Cases that (if not falling within paragraph 4(1) ) would normally fall within sub paragraph (1)(a) include –
(a) the murder of a police officer or prison officer in the course of his duty,
(b) a murder involving the use of a firearm or explosive,
(c) a murder done for gain…,
(d) a murder intended to obstruct or interfere with the course of justice,
(e) a murder involving sexual or sadistic conduct,
(f) the murder of two or more persons,
(g) a murder that is racially or religiously aggravated or aggravated by      sexual orientation,
(h) a murder falling within paragraph 4(2) committed by an offender who was aged under 21 when he committed the offence.
	6 	if the offender was aged 18 or over when he committed the offence 				and the case does not fall within paragraph 4(1) or 5(1), the appropriate 			starting point, in determining the minimum term, is 15 years.”
11.	Section 143 of the 2003 Act, which falls within Chapter 1 of Part 12 of the Act headed “General Provisions about Sentencing – matters to be taken into account when sentencing” reads as follows.
143 (2) In considering the seriousness of an offence …committed by an offender who has one or more previous convictions, the court must treat each conviction as an aggravating factor if (in the case of that conviction) the court considers that it can reasonably be so treated having regard ,in particular, to - 
“(a) the nature of the offence to which the conviction relates and its relevance to the current offence, and
(b) the time that has elapsed since the conviction:” 

12.	These statutory provisions have been considered in this court on numerous occasions.  When considering the seriousness of an offence of murder, the obligation on the court is to have regard to the general principles provided in Schedule 21, together with any appropriate guidelines issued by this Court or the Sentencing Council.  It was suggested in Height [2009] 1 Cr. App. R(S) 656 that paragraph 6 appears to be drafted on the basis that any case which falls outside the specific identified criteria in paragraphs 4 and 5 must proceed on the basis of a 15 year starting point.  The court rejected this suggestion.  The 15 year starting point is appropriate for cases which are not of exceptionally high seriousness, within paragraph 4(1), or of particularly high seriousness, within paragraph 5(1).  However there are cases properly judged to be of exceptionally high or particularly high seriousness which fall outside the specific circumstances described in paragraph 4(2) or paragraph 5(2) respectively.  The judgment to be made is the relative seriousness of the offence.  
13.	The principle was encapsulated in Kelly [2012] 1 Cr. App R(S) 56 where the court was considering a number of cases listed together to examine the ambit and impact of the Criminal Justice Act 2003 (Mandatory Life Sentence: Determination of Minimum Term) Order 2010 which, by inserting a new paragraph 5A into Schedule 21 provided a new starting point in the determination of a minimum term in specific circumstances where a knife was taken to the scene and used to commit murder.  The court observed at para 5:
“… para. 5A now represents another “general principle” to which the court must have regard when making the determination.  The structure of Sch.21 of the Act … requires the starting point for the assessment of the minimum terms for adults convicted of murder to be identified by a reference to murders of exceptional seriousness (full life); of particularly high seriousness (30 years); and murders where the seriousness is neither exceptional nor particularly high (15 years).  Cases which would normally fall within the exceptional and particularly high levels of seriousness are listed and exemplified in paras 4 and 5 respectively.  Nevertheless these lists do not create impenetrable compartments and every case will be subject to its own specific and individual features of mitigation and aggravation.  Therefore cases which are not expressly described in paras 4 and 5 may be treated as cases of exceptional or particularly high seriousness, and cases which on their face appear to fall within one or other of the paragraphs may, on examination, be assessed at a lower level of seriousness than at first appeared”.
At paragraph 9, the court concluded:
“Careful study of the statutory language that makes clear that paras 4(1) and 5(1) identify not the ultimate decision but “the appropriate starting point” …”
14.	In the evaluation of seriousness consideration must be given to every previous conviction in accordance with the provisions in s.143(2) of the 2003 Act.  If the defendant convicted of murder has already been convicted of murder on a previous occasion, Schedule 21 expressly establishes that such a case will “normally” fall within the cases of exceptionally high seriousness attracting a whole life order.  It does not follow from the absence of any specific reference to a previous conviction for manslaughter, whether in paragraph 4(2) or paragraph 5(2), that such a case cannot be treated as one of particularly high seriousness merely because it is not specifically identified as a case which would “normally” be so treated.  Murder committed by a man at large on licence following conviction for manslaughter on an earlier occasion in virtually identical circumstances of violence may be assessed as an offence of particularly high seriousness.  That, we note, does not mean that every case of murder committed by a defendant with a previous conviction for manslaughter must be so treated.  The earlier conviction may be an old one; the second killing may not be a virtual carbon copy of the first; it may be in relative terms a conviction for an offence which happened many years previously.  All we are deciding is that a previous conviction for manslaughter may lead the judge to treat a subsequent offence of murder as an offence of particularly high seriousness.  In our judgment, in the circumstances of this case, the judge was entitled to do so.
15.	Whether he had done so or not, it is plain, and Mr Stein accepted, that a 15 year sentence for this particular murder would have been wholly inappropriate.  Certainly it would have led to a successful application by the Attorney General for it to be treated as unduly lenient. Once the court reflected on the serious additional aggravating features of the case, including the previous conviction for manslaughter, the end result would, inevitably, and again Mr Stein did not suggest otherwise, have produced a sentence very close to the 30 year starting point.  In essence, Mr Stein was inviting us to consider whether the adoption of the 30 year rather than the 15 year starting point, resulted in a disproportionate and excessive minimum term. He suggests that if the 15 year starting point had been applied, even allowing for the aggravating features, the 33 year minimum term arrived at because the judge had taken the 30 year starting point would have been lower.
16.	The ultimate question for this court when examining any minimum term following conviction for murder is whether it is or is not manifestly excessive or wrong in principle.  In considering the submissions on behalf of a defendant, the court will examine the starting point taken by the judge, not least because if, for any reason, it is inappropriate, confidence in the correctness of the eventual outcome may be undermined.  In addition, in a case which does not fall within the express provisions in paragraphs 4(2) and 5(2), but which is nevertheless treated by the judge as an offence of exceptional or particularly high seriousness, the court will examine whether the eventual sentence may have involved an element of what is sometimes described as double counting.  
17.	In our judgment, given the aggravating features identified by the judge, including the previous conviction for manslaughter, he was entitled to conclude that this was an offence of particularly high seriousness, and that a 30 year starting point should apply.  That conclusion would have reflected all the relevant aggravating features.  Some discount from the starting point should have been allowed for his further conclusion that there was insufficient evidence to justify the case being treated as a planned or premeditated murder.  Setting this consideration against all the remaining features of this particular offence, the minimum period of 33 years was too long, and should be replaced by a minimum term of 28 years. To that extent this appeal will be allowed.  The remaining parts of the judge’s order will remain undisturbed, and the sentence of life imprisonment remains in force.