Jersey Unreported Judgments

Superior Number Sentencing - murder.

[2015]JRC004A

Royal Court

(Samedi)

8 January 2015

Before     :

Sir Michael Birt, Kt., Bailiff, and Jurats Clapham, Marett-Crosby, Nicolle, Milner, Olsen, Liston, Blampied, Grime and Ramsden

The Attorney General

-v-

Darren Neil McCormick

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 13^th October, 2014, following a guilty plea to the following charge:

1 count of:

Murder (Count 1).

Age:  35.

Plea: Guilty.

Details of Offence:

On 5^th April, 2014, the defendant murdered Mr Colin Chevalier at the victim's home address in St Helier.  He had consumed a mixture of alcohol and drugs.  The defendant used an axe to inflict multiple head wounds which resulted in death.  The defendant remained at the scene and mutilated Mr Chevalier's body after death using both the axe and a Stanley knife.  The defendant removed the victim's right ear and kept it.  It was found in his possession on arrest the following day.  The reason for the killing was unknown.  Chevalier had supplied McCormick with drugs in the days leading up to the killing. 

Mr Chevalier was lying on his own bed at the time of the attack.  He offered no violence and posed no threat.  It is clear from the nature of the wounds inflicted that he never saw the attack coming.  He may have even been asleep.  In total, the victim sustained some forty wounds before and after his death.  There was intent to kill. 

On 13^th February, 2003, the defendant was sentenced by the Royal Court to 6 years' imprisonment for a grave and criminal assault.  The defendant had attacked a man on his bed with a broken bottle.  It was a frenzied and unprovoked assault.  The victim required emergency hospital treatment.  He was fortunate to survive. 

Details of Mitigation:

There was no premeditation.

The defendant was diagnosed with a personal disorder albeit this had very limited relevance to what he did.  He had also been extremely anxious about a medical condition and ongoing treatment for it.  Prior to the murder he had been trying to turn his life around. 

Previous Convictions:

The defendant had a significant record including the 2003 conviction referred to above.

Conclusions:

The Crown concluded that the circumstances of the case made the murder particularly serious and moved for a life sentence with a minimum term of 32 years.

Count 1:

Starting point 30 years' imprisonment.  32 years' imprisonment.

Sentence and Observations of Court:

Life sentence with minimum term of 25 years; credit given for time already served.  The SN had been unanimous in their conclusion as to the length of the minimum ter.  The majority of the Court agreed that the 2003 assault put the murder in the category of particularly serious and calculation the term by adopting a starting point of 30 years as per the 2014 Law.  The minority had taken a lower starting point of 15 years but considered the previous offending to be a serious aggravating feature. 

Count 1:

Starting point 30 years' imprisonment.  25 years' imprisonment.

H. Sharp, Solicitor General for the Attorney General.

Advocate J. C. Gollop for the Defendant.

JUDGMENT

THE BAILIFF:

1.        This is a brutal murder which, as with all murders, has devastated the victim's family.  The victim, Colin Chevalier, was lying in his bed; he was offering no threat to the defendant, yet the defendant attacked him in an appallingly violent manner.  He used an axe, which belonged to the victim, to strike him repeatedly about the head and face.  The Court is quite satisfied that in this case there was an intention to kill rather than an intention to cause serious bodily harm.  The defendant then used the axe and a knife to mutilate the victim's body.  The mutilation included attempts to cut off the victim's right hand and successfully cutting off his right ear.  The pathologist concluded that there had been over 50 separate actions on the defendant's part which had produced 41 wounds. 

2.        The reason for the murder is unknown but the background is that Mr Chevalier had supplied the defendant and others with controlled drugs and at the time the defendant had taken a cocktail of alcohol and drugs, both licit and illicit.  And this is not the first time that the defendant has attacked a man lying in his bed.  In 2002 he kicked in the door of the victim in that case, smashed a bottle which he was holding and then stabbed the victim repeatedly with the broken glass.  Fortunately the landlady called an ambulance and the victim was taken to hospital for emergency resuscitation.  As the Court said at the time, it was a frenzied attack and had the victim not obtained help from the landlady, he might well have died from his injuries.  The defendant was sentenced to 6 years. 

3.        The defendant has now pleaded guilty to murder and there is only one sentence the Court can pass, namely life imprisonment.  But the issue for us today is what period should be fixed as the minimum term before the defendant can be considered for release from prison.  And for the benefit of the public, we do emphasise that this does not mean that the defendant will be released at the end of this period; that will be up to the relevant authorities at the time, having regard to whether he is still a danger.  What the minimum term means is that the defendant will not be released before the end of that period. 

4.        Now the fixing of the minimum term is governed by a statute passed by the States, that is the Criminal Justice (Life Sentences)(Jersey) Law 2014.  It replaced a similar law from 2005.  What that says is that we must first consider the starting point and the Law identifies three starting points for adults; namely a whole life minimum term, which is defined as 'exceptionally serious', a 30 year minimum term, which is defined as 'particularly serious', and a 15 year term for all other cases; and the Law makes it clear that we must fix upon one of these.  The Court must then go on to consider any aggravating or mitigating features to the extent that they have not already been taken into account in the choice of starting point. 

5.        The English courts, where the legislation is similar, have explained that the fact there are these starting points so far apart does not mean that there are three categories of murder.  On the contrary, as the Court said in the case of R-v-Height and Anderson [2008] EWCA Crim 2500 at paragraphs 8 and 9:-

"Consideration of aggravating or mitigating features may result in a minimum term of any length (whatever the starting point), or in the making of a whole life order."

That case also emphasises that the listed criteria in the statute to determine whether an offence is to be treated as exceptionally serious or particularly serious, are not exhaustive and that other non-listed features may lead a court to treat a case as, for example, particularly serious even when none of the express criteria normally required for this purpose is present.  The English court in R-v-Jones [2006] 2 Cr App R (S) 19 at paragraph 7 also made clear that because the starting points are so far apart it is often impossible to divorce the choice of starting point from the application of aggravating and mitigating features, but where aggravating features have led the court to adopt the higher of two potential starting points, the court must be careful not to double-count and to apply those factors again in making any adjustment to the starting point. 

6.        The Solicitor General submits that we should take a starting point of 30 years in this case on the basis that we should treat it as a particularly serious case, as defined in the statute, for the purposes of Article 6 of the Law.  He accepts that none of the listed factors in Article 6(2) is present but he says that the existence of the previous conviction for grave and criminal assault to which we have already referred, being of such a similar nature and which was life-threatening, means that we should treat this as a particularly serious case despite the absence of the listed factors. 

7.        Advocate Gollop, on the other hand, submits that, as none of the listed factors is present, we should take a starting point of 15 years, although he accepts that thereafter we will balance the aggravating and mitigating features and that in this case the aggravating features outweigh the mitigating features; so he submits that the Court should end up at a minimum term in the order of 18 to 20 years. 

8.        In the view of the majority of the Court the Solicitor General's approach is correct.  Article 5(2)(d) provides that where an offender has previously been convicted of murder, this will normally lead to the offence being treated as exceptionally serious, so that the whole-life starting point is appropriate.  Now the defendant has not previously been convicted of murder so that is not applicable; but he might easily have been.  The previous grave and criminal assault involved a similar attack on a defenceless man in bed, using on that occasion a broken bottle.  The injuries were severe and the victim might have died if he had not received prompt emergency treatment at hospital. 

9.        In the view of the majority, if a previous conviction for murder means that an offence moves up to the exceptionally serious category, by analogy a previous conviction for a very similar frenzied attack which could easily have led to death, enables the Court to treat the offence as particularly serious so that a starting point of 30 years is appropriate.   

10.      The majority conclude that there is one additional aggravating factor which has not been taken into account in reaching the starting point of 30 years and that is the mutilation of the body.  Against that, of course, the mitigating features must be balanced.  The Court is unanimous in considering that these comprise the fact that the offence was not premeditated, the defendant's antisocial personal disorder, although the Court feels that the weight to be attached to that in this case is minimal, the defendant's background, the letters and references which have been supplied, and the defendant's attempt to turn his life around in the comparatively short period since he was released from his last sentence of imprisonment. 

11.      The Court also takes into account his guilty plea.  We agree with the approach in the English case of R-v-Last [2005] 2 Cr App R (S) 64, namely that one sixth of the minimum term reached after applying the aggravating and mitigating features to the starting point can be deducted but with a maximum of 5 years.  Carrying out that exercise the majority of the Jurats conclude that the correct minimum term in this case is one of 25 years. 

12.      The minority in fact reach exactly the same figure but they do so by a different route.  They consider that, as Advocate Gollop submitted, one should take a starting point of 15 years.  However, they consider that the aggravating features greatly outweigh the mitigating factors.  In particular they refer to the previous conviction for the similar assault, the brutal nature of the attack on a defenceless man in his home, the mutilation of the body, and the fact that this attack was carried out under a cocktail of alcohol and drugs taken voluntarily. 

13.      In summary the Court is unanimous in its decision, albeit that the reasoning has varied. 

14.      The Court sentences you to life imprisonment with a minimum term of 25 years from which will be deducted any time already served. 

Authorities

Criminal Justice (Life Sentences)(Jersey) Law 2014.

R-v-Height and Anderson [2008] EWCA Crim 2500.

R-v-Jones [2006] 2 Cr App R (S) 19.

R-v-Last [2005] 2 Cr App R (S) 64.