Application for leave to appeal the sentence of a minimum tariff of 13 years’ imprisonment in respect of murder. – whether the trial judge should have applied the lower starting point. – whether he failed to give sufficient weight to the applicant’s expression of remorse and whether he did not properly give sufficient weight to the applicant’s youth and clear record. – personal circumstances of the offender. – guilty plea. – HELD that the credit given to the applicant’s admissions and his plea was not as great as it should have been and minimum term reduced to 12 years to include the period spent on remand in custody.
|Neutral Citation no.  NICA 13||Ref:||MOR8493|
Judgment: approved by the Court for handing down
|(subject to editorial corrections)*|
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
Before: Morgan LCJ, Girvan LJ and Coghlin LJ
 This is a renewed application for leave to appeal the sentence of a minimum tariff of thirteen years’ imprisonment in respect of the murder of James Fox imposed by Hart J on 25 November 2011. It is argued that the learned trial judge should have applied the lower starting point, that he failed to give sufficient weight to the applicant’s expression of remorse and that he did not properly reflect the applicant’s youth and clear record. It was further contended that in deciding that credit for a plea of guilty should be reduced on the basis that it was entered at a late stage the learned trial judge failed to take into account the conditions under which the plea was entered.
 The deceased was a member of the Donegal Celtic Sports Club on Suffolk Road, Belfast and had been in the club on the night of his death. He was making his way home when he was accosted by the applicant who was looking for a cigarette. The deceased and his companion, Mr Gilmore, refused as a result of which the applicant became verbally abusive. The deceased and Mr Gilmore walked on for some distance before they separated when the deceased turned into Horn Drive. CCTV of the area at the rear of the police station shows that the applicant followed the deceased. They both disappear from the screen for a period of about one minute at which stage they re-appear apparently involved in a scuffle. The next passage of the CCTV shows the applicant repeatedly striking downwards at someone who is on the ground or perhaps trying to get up. The blows and punches were being delivered with very considerable force and determination. There appear to be ten or more blows.
 The body of the deceased was found a short time later by neighbours. The post mortem examination showed that he had sustained serious injuries including fractures of the lower jaw, comminuted fractures of the upper jaw, fractures of the hard palate and both cheek bones, fractures of the nasal bones, fractures of the roof of both orbits as well as the skull base. On any view this was a brutal, merciless attack which was properly deserving of condign punishment.
 The applicant admitted his involvement in this matter to his mother the following morning. The family arranged for representation by a solicitor and he attended with police that day. He was interviewed under caution and accepted that he was the one who had asked the deceased and his companion for cigarettes and that he had later caught up with the deceased at the area of waste ground where the deceased’s body was found. He said that he pestered the deceased for cigarettes as a result of which the deceased hit him. The forensic medical officer found that the applicant had a swollen jaw which was consistent with that account. The applicant then struck the deceased. He accepted initially that he had struck him four times and subsequently accepted that he may have struck him on more occasions. He further accepted that he had kicked the deceased on the chest with his right foot when the deceased was in a position as if he was sitting up prior to getting back on his feet. The CCTV evidence was not available to the applicant or his solicitor at that stage.
 In the course of his second interview on the evening 22 April 2010 his solicitor intervened to contend that the admissions made by the applicant constituted an assertion that he had acted in self-defence. Having regard to the fact that the applicant had admitted by this stage that he had kicked the deceased while he was falling to the ground and thereafter hit him at least four times while he was on the ground we consider that such an intervention was entirely without justification. He was arraigned on 21 January 2011 and pleaded not guilty. In his defence statement it was asserted that he acted in self-defence and used what he believed in the circumstances to be reasonable force to defend his person. The CCTV evidence was available to the defence by February 2011 and even a casual glance at the vicious assault perpetrated by the applicant would have demonstrated that the maintenance of an argument on self-defence was perverse. Mr McCartney QC who appeared with Mr Moriarty for the applicant accepted that there was no satisfactory explanation for the failure of the applicant to plead guilty at least to manslaughter in the early part of 2011 when medical evidence was available to deal with his mental state.
 The applicant maintained that he had consumed approximately ten tins of beer and smoked a quantity of cannabis prior to the commission of the offence. There was considerable evidence that he was affected by drink and drugs and he was described by some of those who saw him as “off his head” shortly before he carried out this attack. In October 2011 the defence obtained a report from a toxicologist with a view to establishing how the consumption of alcohol and drugs would affect his mental state. The toxicologist expressed the opinion that it would have caused a state of acute confusion. The case came on as a standby trial on 11 November 2011 and an application was made to adjourn the case on the basis that the toxicologist was not available and that the defence wished to investigate suggestibility. There was no substance whatsoever to the argument on suggestibility as this applicant had himself come to the police to tell them what he had done. That was quickly recognised by Mr McCartney. The learned trial judge indicated that he would ensure that the toxicologist, Dr Trinick, would be taken at a convenient time. The jury was then sworn. It was at that stage that the applicant applied to be re-arraigned and pleaded guilty to murder.
The correct starting point
 In R v McCandless  NI 269 the Court of Appeal gave guidance on the approach to be adopted in fixing the minimum term to be served by a defendant convicted of murder. The court adopted the Practice Statement issued in 2002 in England and Wales:
“The normal starting point of 12 years
- Cases falling within this starting point will normally involve the killing of an adult victim, arising from a quarrel or loss of temper between two people known to each other. It will not have the characteristics referred to in para 12. Exceptionally, the starting point may be reduced because of the sort of circumstances described in the next paragraph.
- The normal starting point can be reduced because the murder is one where the offender’s culpability is significantly reduced, for example, because: (a) the case came close to the borderline between murder and manslaughter; or (b) the offender suffered from mental disorder, or from a mental disability which lowered the degree of his criminal responsibility for the killing, although not affording a defence of diminished responsibility; or (c) the offender was provoked (in a non-technical sense), such as by prolonged and eventually unsupportable stress; or (d) the case involved an overreaction in self-defence; or (e) the offence was a mercy killing. These factors could justify a reduction to eight/nine years (equivalent to 16/18 years).
The higher starting point of 15/16 years
- The higher starting point will apply to cases where the offender’s culpability was exceptionally high or the victim was in a particularly vulnerable position. Such cases will be characterised by a feature which makes the crime especially serious, such as: (a) the killing was ‘professional’ or a contract killing; (b) the killing was politically motivated; (c) the killing was done for gain (in the course of a burglary, robbery etc.); (d) the killing was intended to defeat the ends of justice (as in the killing of a witness or potential witness); (e) the victim was providing a public service; (f) the victim was a child or was otherwise vulnerable; (g) the killing was racially aggravated; (h) the victim was deliberately targeted because of his or her religion or sexual orientation; (i) there was evidence of sadism, gratuitous violence or sexual maltreatment, humiliation or degradation of the victim before the killing; (j) extensive and/or multiple injuries were inflicted on the victim before death; (k) the offender committed multiple murders.
Variation of the starting point
- Whichever starting point is selected in a particular case, it may be appropriate for the trial judge to vary the starting point upwards or downwards, to take account of aggravating or mitigating factors, which relate to either the offence or the offender, in the particular case.
- Aggravating factors relating to the offence can include: (a) the fact that the killing was planned; (b) the use of a firearm; (c) arming with a weapon in advance; (d) concealment of the body, destruction of the crime scene and/or dismemberment of the body; particularly in domestic violence cases, the fact that the murder was the culmination of cruel and violent behaviour by the offender over a period of time.
- Aggravating factors relating to the offender will include the offender’s previous record and failures to respond to previous sentences, to the extent that this is relevant to culpability rather than to risk.
- Mitigating factors relating to the offence will include: (a) an intention to cause grievous bodily harm, rather than to kill; (b) spontaneity and lack of pre-meditation.
- Mitigating factors relating to the offender may include: (a) the offender’s age; (b) clear evidence of remorse or contrition; (c) a timely plea of guilty. “
 The learned trial judge considered that this was a higher starting point case. He relied in particular upon the fact that the victim was vulnerable in that the CCTV shows a persistent, determined and vicious attempt to inflict multiple blows upon the victim as he lay or sat on the ground. Secondly it is clear from the medical evidence that the deceased suffered extensive injuries before his death. It was suggested on behalf of the applicant that it was material to this issue to determine whether the applicant’s account that the deceased had struck him first on the jaw was correct. We reject that submission. Whether or not the deceased may have struck the applicant when the applicant was pestering him for cigarettes or in the course of defending himself while this attack was on-going is in our view irrelevant to the exceptionally high culpability of this applicant in launching this attack upon this vulnerable victim. We were taken to passages of the submissions in which it appears that both the prosecution and the defence were prepared to accept that this was a normal starting point case but in our view the learned trial judge was entirely correct to reject those submissions.
The personal circumstances of the offender
 The applicant was eighteen years old at the time of the offence. He had no previous criminal record. His family background was happy, stable and secure. He had obtained employment as a labourer and at the time of the offence was engaged in a one year training course in construction skills. The pre-sentence report noted that his use of alcohol and cannabis particularly at the weekend was destabilising and that as a result of this he had engaged with others in anti-social activity. In light of the circumstances of this offence he was assessed as presenting a significant risk of serious harm to others but was judged as being at medium likelihood of re-offending. Numerous character references from friends, neighbours and employers were introduced on his behalf.
 The learned trial judge took into account his previous good character and his youth. We accept that age and good character can be mitigating factors. In the areas of retribution and deterrence such mitigating factors relating to personal background will be significantly outweighed by the exceptional culpability making a case suitable for the higher starting point but we accept that the fact that this offender was only 18 years old at the time of the murder should be given some weight. There is nothing to indicate that his degree of maturity was significantly different from other youths of that age.
 Having considered the personal circumstances of the offender we also wish to make it clear that we have taken into account the victim impact statements and note the conclusion of the learned trial judge that those statements demonstrated the devastating effect the murder of the deceased has had in different ways upon his extensive family circle.
The plea of guilty
 The appropriate discount for the applicant’s plea of guilty is intimately bound up with a consideration of the extent to which he has shown remorse for what happened. The learned trial judge recognised that he had handed himself into police the day after the attack upon the deceased and gave a detailed account of his actions during the interview. He asserted, however, that this was not a wholly truthful account because the applicant plainly was not acting in self-defence when he struck the deceased as he lay in a vulnerable position on the ground. We have difficulty accepting that the applicant’s account was not wholly truthful because of the self-defence issue. It was not in fact raised by the applicant himself but rather by the intervention of his solicitor. This is hardly surprising since the ambit of self-defence as a basis upon which to resist or minimise criminal liability is relatively technical. Having reviewed the interviews it appears that this applicant had largely admitted the actions upon which he engaged during his interviews and those admissions were the basis upon which the prosecution acted. It is to the very considerable credit of his family that they acted as responsibility as they did when he made his admissions to his mother and the approach that he took in admitting his part in this vicious attack can properly be accepted as representing a reasonable indication of remorse. It is clear from the interviews that he was affected by the magnitude of the wrong that he had done and that is also clear from the pre-sentence report. The plea of guilty entered by the applicant on the morning of the hearing when the jury was about to be sworn has to be seen in the context of the extensive admissions made by him as a result of disclosing to police that he was the culprit at a time when police were unaware of that.
 In Attorney General’s Reference (No. 1 of 2006)this court looked at the benefit that an accused might achieve as a result of admitting his guilt. The relevant approach is set out at paragraph 19:
“To benefit from the maximum discount on the penalty appropriate to any specific charge a defendant must have admitted his guilt of that charge at the earliest opportunity. In this regard the attitude of the offender during interview is relevant. The greatest discount is reserved for those cases where a defendant admits his guilt at the outset. None of the offenders in this case did that. All either refused to answer or denied guilt during police interview. On no basis, therefore, could any of them expect to obtain the maximum reduction for their belated guilty pleas. We wish to draw particular attention to this point. In the present case solicitors acting on behalf of two of the offenders appear to have advised them not to answer questions in the course of police interviews. Legal representatives are, of course, perfectly entitled to give this advice if it is soundly based. Both they and their clients should clearly understand, however, that the effect of such advice may ultimately be to reduce the discount that might otherwise be available on a guilty plea had admissions been made at the outset. “
 The issue of the appropriate discount for a guilty plea has also been considered in England and Wales in R v Peters  EWCA Crim. 605. The court accepted the submission that a defendant facing a charge of murder may require expert legal advice before he can sensibly decide on his plea and that this applies particularly in the case of defendants who are young or who suffer from mental or emotional problems. Where a defendant accepts responsibility for fatal injuries he may nevertheless need expert legal advice about whether the case should be properly contested on the basis of the absence of intent, self-defence, provocation or diminished responsibility. The court then set out its approach to the allowance for pleas of guilty:
“In relation to the allowance for pleas of guilty, even if there is a delay in obtaining the advice of leading counsel, the defendant should not normally expect to obtain the maximum discount unless a very clear indication is given that as a matter of fact he accepts responsibility for the fatal injuries, or involvement in the death“
 In accordance with these authorities the learned trial judge concluded that the credit to be allowed to him should be reduced to take account of the fact that the plea was only entered on the morning of the hearing. In this case we are satisfied that the failure to enter a plea at the arraignment stage or shortly thereafter was as a result of the maintenance of a case based on self-defence by the applicant’s lawyers. It is clear that the defence statement was drafted by them. It also appears that no advice was given to this applicant that he should at least accept his responsibility by pleading to manslaughter before he eventually pleaded to murder in November 2011. We accept that both Peters and Attorney General’s Reference (No. 1 of 2006) indicate that an accused may be disadvantaged as a result of the failure of a lawyer to give sound advice and the learned trial judge clearly applied that principle in reducing the credit for the plea. We consider, however, that in this area each case has to be carefully analysed. This was an eighteen year old boy who had not previously found himself in court. He and his parents were very much in the hands of the lawyers as to how they should be guided in these matters. Both the applicant and his family had acted responsibly in coming to the police and making effectively full admissions about the applicant’s involvement in the offence at a very early stage. In those circumstances we do not consider that this is a case in which the applicant should have been disadvantaged as a result of the advice which he accepted.
 For the reasons given we consider that this is a case in which the credit given for the applicant’s admissions and his plea was not as great as it should have been. We consider that the learned trial judge has properly taken into account the other aggravating and mitigating factors. In the circumstances we reduce the minimum term of imprisonment to twelve years. This will include the period spent on remand in custody.