Geoffrey Downs [2019] EWCA Crim 728

**Geoffrey Downs** [2019] EWCA Crim 728 concerned a renewed application for permission to appeal against sentence before the Court of Appeal (Lord Justice Fulford, Mr Justice Sweeney and Mr Justice Dingemans).

Mr Downs pleaded guilty to murder and to possessing an offensive weapon contrary to section 1 of the Prevention of Crime Act 1953. On 24 August 2018 at Inner London Crown Court, Her Honour Judge Karu imposed a mandatory sentence of life imprisonment with a minimum term of 25 years less time on remand, together with a concurrent sentence of 12 months’ imprisonment for the weapon offence. Permission to appeal had been refused on the papers by the single judge.

The appellant, aged 37 at sentence, had three previous convictions, including one for an offence contrary to section 18 of the Offences against the Person Act 1861 committed in 1997 when he was 15 years old, for which he had stabbed another person six times in the back and received a supervision order. At the time of the murder he was 21 months into a suspended sentence of 39 weeks’ imprisonment for producing cannabis by cultivation.

The deceased, Mr Michael Boyle, rented a room from the appellant’s father, and the appellant also lived at the property in a separate room. At approximately 11.00 pm on 10 March 2018 Mr Boyle entered a local public house and bought two pints of lager, giving one to the appellant. At about 12.15 am the appellant became agitated. He walked to his father’s flat, collected two knives, and returned some 14 minutes later. He then shouted to Mr Boyle “Don’t fucking speak to me like that” and either punched or head-butted him in the face. Mr Boyle fell to the ground and the appellant stabbed him in the chest. The appellant then stamped on Mr Boyle. Onlookers intervened and a prolonged struggle ensued. After this the appellant went away and asked another person to dispose of the knife. He returned to his flat and, when challenged by his father, initially said he had been to his brother’s flat before admitting he had earlier returned to the flat to get the knives.

It was common ground that a mandatory life sentence had to be imposed and that the starting point for the minimum term was 25 years pursuant to Schedule 21 of the Criminal Justice Act 2003. The judge identified as aggravating factors intoxication, premeditation, the return to the flat to collect the knives, a sustained attack, injury to three interveners, asking someone else to dispose of the knife, the previous convictions and breach of the suspended sentence. Those aggravating features increased the starting point from 25 to 27 years. The judge then gave a discount of two years from the minimum term for the guilty plea, leading to the final minimum term of 25 years.

The grounds of appeal advanced by Mr Ryder QC on behalf of the appellant were, first, that the judge wrongly increased the minimum term by reference to the aggravating factors and, second, that the judge gave insufficient credit for the guilty plea. As to the first ground, the appellant submitted that there was no sustained attack and there was injury only to one person. Mr Justice Dingemans, giving the judgment of the court, held that the judge was entitled to find that this was a sustained attack because the appellant had either head-butted or punched Mr Boyle to the ground, stabbed him with a knife, stamped on his head and carried on with the assault until he was knocked off Mr Boyle by others. The court further held that the judge was entitled to find injury to three persons. Mr Abbot had attempted to disarm the appellant but suffered a minor cut to his knuckle, Mr Green had attempted to punch the appellant to stop him and suffered a broken knuckle, and the appellant had punched or pushed a woman to the floor. The court emphasised that the judge had also identified other aggravating factors including the disposal of the knife and the relevant previous convictions, and was entitled to increase the starting point from 25 years to 27 years. The court rejected the submission advanced in oral argument that these matters did not materially add to the gravity so as to increase the minimum term. The fact of stamping after the event, the planning and the request to hide the knife, together with the previous convictions and the intoxication, were permissibly reflected by the judge in the increase.

As to the second ground, the appellant submitted that although the plea was made only three weeks before trial, he had lost confidence with his former legal team and it was reasonable to wait for the new legal team before entering the plea, so that full credit should be given. Mr Ryder noted the public interest in encouraging pleas of guilty to murder. The court agreed with that general proposition and referred to section 144 of the Criminal Justice Act 2003 and the Definitive Guideline on Reduction in Sentence for a Plea of Guilty issued by the Sentencing Council. The court noted that page 6 of the guideline provided that credit for plea in murder cases is restricted to one-sixth of the relevant term, the equivalent of one-third of a determinate term of which half would be served, or five years. The court further noted that Exception F1 in the guideline, headed “Further information, assistance or advice where necessary before indicating plea”, provides that where the sentencing court is satisfied that particular circumstances significantly reduced the defendant’s ability to understand what was alleged or otherwise made it unreasonable to expect the defendant to indicate a guilty plea sooner than was done, a reduction of one-third should still be made. The guideline distinguishes between cases in which it is necessary to receive advice or have sight of evidence to understand whether the defendant is guilty of the offence charged, and cases in which a defendant merely delays pleading guilty in order to assess the strength of the prosecution evidence.

The court considered that the appellant had sought advice from leading counsel because he wanted to explore the defence of automatism, having been intoxicated and lacking recollection of the incident. He had not seen leading counsel until 29 June 2018. The appellant said he had lost confidence in his former legal advisers and therefore should be treated as pleading guilty at the first opportunity when he instructed new leading counsel. However, the response from the former solicitors showed that documents had been provided to the appellant and that he had been reluctant to enter a plea of guilty to murder or manslaughter. A response from former counsel showed that when leading counsel had first met the appellant he had refused to speak to him, although after the first hearing he had watched the CCTV together with leading counsel and been given advice. Leading counsel had reported that as at 29 June the appellant had said he was not a murderer, which showed a reluctance to accept the advice and plead guilty. He did plead guilty shortly after being given advice on 27 July on the first available date. The judge had recorded in the course of proceedings that the appellant had said he did not have witness statements when he did in fact have them, and that he had said he had not seen the CCTV when it was apparent that he had refused to watch it at court when with his counsel. The court considered that while the appellant said he had wanted to explore automatism because he had no recollection of events, on the evening of the offence he had been able to tell a friend to hide the knife and had also told a lie to his father about where he had been earlier. The judge had given the appellant credit of 7.5 per cent, which equates to 15 per cent under a determinate sentence, just under half of the full discount available.

The court held that it was not apparent that the appellant should have been given any further credit. He appeared to have been given relevant advice beforehand which he did not like, considering himself not to have been a murderer and considering himself to have been pre-condemned. When advice was given again by excellent new legal representatives he appeared to have accepted it. The judge was best placed to make the assessment of what discount should be given. In this case the discount of two years was given even though the plea was entered only three weeks before trial. This was still a substantial discount and showed that the judge must have had regard to the need for the appellant to obtain legal advice, but a discount which also reflected the specific circumstances leading to the plea of guilty.

The court observed that this was a case involving the senseless death of Mr Boyle, caused by the appellant for no apparent reason apart from apparent irritation about the way he had been spoken to. The appellant had taken the life of Mr Boyle and devastated the lives of Mr Boyle’s son and family. The appellant had destroyed his own life and hurt his own family. Those who carry and use knives would receive very severe punishment. In short, notwithstanding the skilful submissions made by Mr Ryder QC, to whom the court expressed gratitude for his pro bono appearance, the court could discern no arguable grounds of appeal against sentence and refused permission to appeal.