B, R v [2009] EWCA Crim 2701 (10 December 2009)

Neutral Citation Number: [2009] EWCA Crim 2701 No. 2009/04525/A7 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2 10 December 2009 B e f o r e : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES (Lord Judge) MR JUSTICE SIMON and MR JUSTICE ROYCE ____________________ ATTORNEY GENERAL'S REFERENCE No. 73 of 2009 UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A - v - CARL WAYNE B ____________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4A Telephone No: 020 404 1400; Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) ____________________ Miss B Cheema appeared on behalf of the Attorney General Mr P Rouch QC and Mr H Rees appeared on behalf of the Offender ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © Thursday 10 December 2009 THE LORD CHIEF JUSTICE: This is an application by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court a sentence which she considers to be unduly lenient. We grant leave. The offender is Carl Wayne B. He is aged 43. In the Crown Court at Swansea, before Davis J and a jury, he pleaded not guilty to an indictment which contained five counts. Count 1 alleged that he murdered Jamie Y, his stepson; count 2, that he attempted to murder Kimberley Y, his stepdaughter; count 3, that he wounded Kimberley Y with intent to do her grievous bodily harm; count 4 that he attempted to murder Gwyneth B, his wife; and count 5, that he attempted to wound Gwyneth B with intent. The jury convicted the offender of count 1, murdering his stepson; count 3, wounding his stepdaughter with intent to do her grievous bodily harm; and count 4, attempting to murder his wife. He was sentenced on count 1 to life imprisonment with a minimum term of 16 years (less 198 days spent in custody on remand); on count 3, to seven years' imprisonment concurrent; and on count 4, to seven years' imprisonment concurrent. All the allegations arose out of a single, prolonged incident on 8 January 2009. The offender attacked and stabbed to death his 15 year old stepson while he lay asleep. It was a brutal and ferocious assault. He was armed with a large knife and a wooden table leg. He stabbed his stepson no less than 18 times with the knife. The attack attracted the attention of his wife (the boy's mother) and his stepdaughter, aged 18 (the boy's sister). They rushed to the bedroom where the boy was being attacked. As he left the bedroom, the offender attacked his wife. His stepdaughter intervened and sustained the injuries intended for his wife. It is another feature of this case that the offender's own 9 year old son saw something of the incident which resulted in the stepson's death. The events on the night in question represented the culmination of a long period of possessive and jealous behaviour on the offender's part, which was combined with a considerable abuse of alcohol. The members of the household were plainly in prolonged fear of him. The defence to the charge of murder was diminished responsibility. The jury rejected that contention. The background to the case is this. The offender and Gwyneth Y married in 2002. She had two children from a previous marriage: Kimberley, the victim of the wounding with intent to do grievous bodily harm; and Jamie, the victim of the murder. The marriage produced seven sons. All the family lived together in a small house in Grant Street, Llanelli. The offender slept downstairs and the rest of the family shared the available bedrooms. The relationship between the offender and his wife was, as a matter of history, marked by his bullying and selfishness. He bullied not only his wife but the entire family. He sought to control them and to manipulate them. For example, his wife was prevented from seeing her friends or socialising in any way unless the offender was present to supervise her. He was a man of extreme jealousy. From time to time he would check the fuel gauge in his wife's car to see whether she had made any journeys which he had not authorised. He would interrogate his wife and stepdaughter as to whether either of them had had any kind of sexual relationship with anyone other than himself. When suspicious, he would make them strip off so that he could examine them physically. The offender would not allow any contact between his stepchildren and their own family. As the girl and boy became teenagers, he tried to prevent them from developing a relationship with their natural father and their paternal grandparents. Despite that, from time to time Jamie would visit his father and his grandparents, who lived nearby. He did so without the offender's knowledge. There is evidence from previous relationships that this was the offender's general way of behaving. He liked to dominate in an extreme way those who lived in his house. In the summer of 2008 Jamie's grandfather was diagnosed with cancer. Accordingly, the two grandchildren felt it was important to visit their grandfather and to offer him comfort. Jamie was born in March 1983. At the time of his death he was 15. However, he appeared to be very much younger than that. At his death he was 4ft 10in tall and he weighed no more than seven-and-a-half stones. The paramedics who attended the scene thought that he was about 10 to 12 years old. He had an interest in becoming a jockey and was apparently talented. He was hard-working, committed, and generally well-liked. They were features of his character which were not agreeable to the offender who formed a dislike of the boy. In the family environment he would withdraw attention from him for long periods; sometimes he refused to speak to him at all for weeks on end. The stepdaughter was older than her brother. It is unnecessary for us to go through the allegations which may form the subject of a future trial, but there is no doubt that at some stage the offender developed a sexual relationship with her. According to his own admissions, he had sexual intercourse with her. He asserted that it was consensual and that it had only happened in the last two years. In the weeks leading up to 8 January the offender told his wife that if she ever left him, he would kill her and would plead that his responsibility was diminished. She took the threat seriously. Two days before the attack on her brother, the stepdaughter told the offender that she was planning to leave. He told her that he loved her deeply and that he did not want her to leave. It is plain that his control over her had begun to crumble and he found this unacceptable. In the meantime, the stepson had started to spend time away from the home, working in stables in Camarthenshire in order to further his ambitions as a jockey. On 7 January the offender took the children to school and he went with his wife to the launderette. Some workmen went to the house to fix a problem. She went out shopping for food. She took a little longer than he would have expected and so she telephoned him to tell him that she had been delayed. The stepdaughter at home that day thought that the offender was somewhat quieter than he usually was. Jamie returned home at about 8pm. He needed to sleep. He went to bed early. The television was on in the room in which he usually slept, so he went to his sister's room. He slept on a bean bag on the floor in his boxer shorts. During the evening the offender said that he believed that Jamie had been to his grandparents' address and had eaten there. The offender remained downstairs, drinking. Gradually the children went to bed. The stepdaughter went to sleep with her mother in her mother's bedroom. Before he went to bed, the offender said to his 9 year old son, "Would you love me no matter what I did?" He said to his 10 year old son, "You are the only one who cares for me." A few hours later, shortly before 3am, the offender armed himself with a table leg, which was kept as a weapon with which to dominate his family, and from a knife block in the family kitchen he took a knife 12in long with a blade one to one-and-a-half inches in width. Armed with those weapons he went to the small bedroom where Jamie was sleeping. As the boy lay there, the offender attacked him. He stabbed him repeatedly with the kitchen knife. The findings at post-mortem suggested that Jamie cannot have moved very much, if at all, during the attack. An examination of the scene revealed that the bloodstaining was consistent with the attack having taken place at a low level close to the floor. The 9 year old son of the offender and his wife witnessed part of the attack from his bedroom. He saw the offender lift the knife into the air and bring it back down "really strong" and "hard". It is fortunate that he did not see any of the blows land. There were no less than 18 separate stab wounds. Some went right through the boy's arm and into his chest. Some went through the chest into the lungs and some went into the spine. Jamie cried out during the attack and woke his mother and his sister. Somebody who lived next door heard part of what was going on and heard the offender shouting, "I'm going to kill him, I'm going to fucking kill him". The mother and daughter went to the landing outside the room where their son and brother was being attacked. The offender left Jamie lying injured and dying. A confrontation occurred on the small landing where his wife and stepdaughter had gathered. They were in a panic. Although they had not seen what had gone on, they must have known from the cries and what was being shouted by the offender that something dreadful was taking place. The offender had hold of the same knife he had used and the same chair leg. He sought to attack his wife by head-butting her, but he failed. He stabbed out, wielding the knife at her. It looks as though Kimberley bravely stepped in front of her mother. She sustained two stab wounds to her arm. Some of the other children were woken up. The 10 year old heard his father shouting at his mother and calling her a "bastard". The situation of tension, horror and fear needs no further description. The violence came to an end. The offender went downstairs and out of the house. Once outside he dropped the knife and the chair leg. His wife locked the door against him and rushed to see Jamie. The emergency services arrived. Efforts were made to resuscitate Jamie. They failed. He was pronounced dead about an hour later. The autopsy revealed 18 wounds to the body: three of them were to the right arm into the chest; ten were to the back of the shoulder into the chest; and three were to the right of the spine in the area of the spine itself. Wounds were inflicted to the victim's back. The spine was severed, the right lung collapsed, and four ribs were damaged. The cause of death was a massive haemorrhage into the right side of the chest from the deep wounds into the lung. The offender's wife had sustained no injuries. Kimberley's wounds were treated by surgery in hospital. They were 8cm in depth. The offender was arrested about half a mile from home. He was heavily bloodstained. He told the police he did not know what had happened. He then set out on a charade of trying to persuade the police that he was confused and unaware of his surroundings and condition. When arrested at the police station, he began to make moaning and groaning noises. It seems to us, having read the evidence, that that was an attempt to start the ball rolling for the defence of diminished responsibility which he was later to run at trial. In interview he told the police that he could not remember what had happened. His memories were of his wife's face and of flashing lights. He said that Jamie was a good lad, but that his wife looked evil. He explained his suspicions about her fidelity -- all entirely unjustified. He said that he was having an affair with his stepdaughter, which he asserted was consensual. As to his relationship with Jamie, he said that he felt left out when he suspected that Jamie was seeing his natural father "on the sly". An examination of the offender's computer hard drive revealed a matter of some importance in the context of the defence of diminished responsibility: an apparent interest in the details of murder cases following a number of searches relating to crimes of murder. The psychiatric evidence at trial was agreed: the offender was highly dangerous; he did not suffer from any condition which could be treated. The evidence of the two psychiatrists, which they elicited from the facts of the case, was relied on by the offender in support of his defence. The Crown rejected the suggestion of diminished responsibility and the jury formed the same view. In his sentencing remarks the judge described the offence as a "very, very cruel crime". He said that all three of these crimes were "very, very cruel, all borne out of your pathologically jealous and possessive state". There is no question about the danger posed by the offender. The sentence of life imprisonment was imposed as the penalty for the crime of murder that he had committed and also as a means of protecting the public from the danger which he represents and is likely to continue to represent for a very long time indeed, if not the indefinite future. The judge specified the minimum term as sixteen years. It is that aspect of his decision which is criticised by the Attorney General. That minimum term is said to be unduly lenient. The Attorney General points to the following aggravating features. The victim was aged 15. He was particularly vulnerable as he lay asleep at 3am. The offender was in a position of trust. The attack on the victim was carried out in the context of a background of abusive control of the family. The attack was pre-meditated. It may not have been long-planned, but references to diminished responsibility 48 hours before the killing suggest that something murderous was going on in the offender's mind. By the time he attacked the victim, he had collected two weapons, one of which was intended to cause very serious injury. By the time the attack took place there can be no doubt whatever that there was an intention to kill. The assault was sustained. The number of wounds speak for themselves. The seriousness of the force used, breaching bone as well as severing the victim's spine, demonstrate that beyond doubt. One child of the family witnessed the weapon being raised and coming down with force, raised again and coming down with force. Afterwards, when the offender's wife went to find out what was happening to her son and his sister went to find out what was happening to her brother, no doubt stirred to horror by the screams which they heard, the offender, on the jury's verdict, tried to kill his wife, intending to kill her. He wounded his stepdaughter, intending to do her really serious harm. Having heard counsel address him in mitigation, the judge accepted the submission that the appropriate starting point should be taken on the basis of paragraph 6 of Schedule 21 to the Criminal Justice Act 2003. He noted that there was a degree of planning and that the offender intended to kill. It is suggested on behalf of the offender that the aggravating features of the case were all in the judge's mind. We think that submission may be well-founded. However, the question is whether those features, which were considered by the judge, were sufficiently reflected in the determination of the minimum term. The judge examined whether he could find any real mitigation. There was none. Our attention today has been drawn to the fact that there is no evidence that the offender had ever used violence in this house before. However, it is clear, whether he had done so or not, that he did not need to use violence. The house was filled with fear of a dominating man. Despite the endeavours of Mr Rouch QC on the offender's behalf, we cannot find any true mitigation. There is no doubt that this was a remorseless killing of a defenceless boy -- not much more than a lad -- as he lay asleep. It was carried out deliberately. That offence, together with the associated offences of attempted murder and wounding with intent on the wife and daughter respectively, after he had deliberately killed their son and brother, mean that, despite the absence of any of the features expressly identified in paragraph 5 of Schedule 21, this was a case of particularly high seriousness. But whether that is so or not, and assuming that the starting point was that taken by the judge, the offence was aggravated in the extreme by the circumstances of the associated offences and by the facts of the offences as we have endeavoured to summarise them in the course of this judgment. We cannot ignore the fact that the victim died in circumstances of extreme vulnerability. Further, there was an attempt to kill the wife which failed because of the courage of her daughter who stepped in and took the blows that were intended to kill her mother. This case is a graphic illustration of the dangers of attempting to compartmentalise the seriousness of cases of this kind. We have no doubt that the sentence impose by way of the minimum term was unduly lenient. We consider that the minimum term should be increased to 25 years. That is our order. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII