No: 200800027/A5 
Neutral Citation Number: [2008] EWCA Crim 769
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Thursday, 3rd April 2008
 
B e f o r e:

LORD JUSTICE GAGE
MR JUSTICE DAVID CLARKE 

MR JUSTICE MADDISON 
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R E G I N A 

v 

THOMAS BLUE 
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Mr R Spencer appeared on behalf of the Appellant
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J U D G M E N T
1.	MR JUSTICE DAVID CLARKE:  On 4th December 2007 in the Crown Court at Mold before His Honour Judge Rogers QC and a jury, the appellant, who is 26, was convicted of murder.  He was sentenced to life imprisonment and the judge specified the minimum period of 17 years less time spent on remand.  The appellant appeals against that determination of the minimum term by leave of the Single Judge.
2.	He had been convicted following a trial, which we are told lasted some 7 days and in which the evidence was clearly subjected to very close examination.  The prosecution case as presented to the judge and jury at the trial can be summarised as follows.  The 24‑year‑old victim, a man whose first name was Adam, was a Polish national.  He had lived and worked in this country for about 2 years.  He lived with his girlfriend, also Polish, and her brother in Wrexham.  The appellant lived in Glasgow but his former girlfriend and their child had moved to Wrexham in North Wales where the appellant was a frequent visitor.  Her mother lived nearby.
3.	On the evening of 5th/6th August 2007 the appellant, his former girlfriend and her mother had spent the evening drinking and shortly after 1.00 am the appellant went to a service station nearby in order to buy a bottle of wine.  At the time the deceased, with his girlfriend and her brother, were also going to the same service station.  They had been at a party and they were intending to go to the service station shop, which is an off‑licence, to buy beer.  No doubt it was the only place in the neighbourhood open at that time of night for such a purpose.
4.	Outside the service station there was a confrontation between the appellant and the deceased.  The facts as presented on behalf of the Crown were that the appellant shouted aggressively at the deceased.  Clearly there is room for doubt as to how the confrontation actually began.  But clearly the deceased reacted.  There was an argument which developed into a fight in which they pulled at each other's clothing and in the course of which the deceased picked up a piece of wood and threatened the appellant with it.  We are told by Mr Spencer, by reference to photographs of the scene, that the piece of wood was part of a fence.
5.	The girlfriend of the deceased managed to separate the two men and at that stage the incident appeared to be over.  It had been witnessed, at least in part, by staff in the service station shop.
6.	But what then occurred led on to the fatal consequence of  this incident, because the appellant ran back to 2 Bury Street, the home of his former girlfriend where he was staying.  That was about 100 metres away.  He ran into the kitchen.  He grabbed a carving knife.  He remarked to his former girlfriend: "I can't cope with this fucking shit".  She warned him not to go out with the knife but he left the house with it.  He returned to the main road where the garage is.  The deceased approached him.  There was a confrontation between the two of them, in the course of which he inflicted four stab wounds with the large kitchen knife.  It is apparent from the other evidence that the fact that he was carrying the knife was seen by witnesses, and there is no reason to doubt that it was seen also by the deceased when approaching him.
7.	The deceased managed to make his way back to the service station shop and an ambulance was summoned.  Meanwhile the appellant passed the knife to Miss Rossiter's mother, and it was later recovered from her.  The appellant was arrested nearby.  There is some evidence that in the immediate aftermath of the stabbing the appellant was quiet and appeared shocked at what had occurred.
8.	The deceased was found to have sustained four stab wounds, three to the front and left of the trunk and one to the back above the buttocks.  The fatal wound was that to the upper chest identified by the pathologist.  That was a wound that passed through part of the fifth rib into the lung and heart and was approximately half the length of the knife blade.
9.	When interviewed the appellant asserted that he had been frightened and confused and had only acted in self‑defence and panic and had not intended to stab the deceased.  That defence was rejected by the jury.
10.	The appellant had a substantial history of previous convictions in Scotland for offences of violence.  These were admitted before the jury as evidence of propensity to violence pursuant to section 101 of the Criminal Justice Act 2003.  He had 11 convictions for assault, one of which was for an offence described as "serious assault".  The victims were family members, including his mother and his partner, as she then was, Miss Rossiter, to whom we have referred.  He had served three custodial sentences for offences of violence, not long ones, the most recent having been a 9 month sentence imposed in December 2006.
11.	There was a psychiatric report before the court.  It set out a depressing history of an abused and disturbed childhood, a history of serious alcohol and drug abuse and no history of employment.  The appellant suffered from an anti‑ social personality disorder, according to the psychiatric assessment, but there was no abnormality of mind which could impair his responsibility for his acts.
12.	In view of the submission made about the judge's approach to sentence, it is appropriate to quote the sentencing remarks in full.  They were as follows: 
"Adam Mikalski was 24 years of age, effectively the same age as you.  He'd left a small town in Poland to come and work with other young Polish people in Wrexham and there he worked arduously and without causing any trouble for some two years.  On the 5th August of this summer in the very first hours of the day, you murdered him by stabbing him no fewer than four times with a large carving knife.  The sentence that I impose upon you I am very aware will provide little consolation for his family and friends in Poland. You have been convicted on overwhelming evidence of his murder.  
The only sentence is one of life imprisonment.  However, in addition I have to assess the minimum term which you will serve before the Parole Board considers you for release.  The aggravating feature is that I am quite sure there was a racial element to your attack upon him.  Firstly, a relatively minor confrontation, I'm quite sure was caused by you making abusive remarks to the deceased and two other young people about their country of origin, Poland.  I also remind myself that Mr Anthony Jones from the Beech Lea garage heard you at the time of the fatal assault say words to the effect 'I've had enough of them'.  In my judgment that aggravating feature increases the minimum term.  There is in mitigation one matter I do take into account and that is that with some hesitation, I cannot be sure that you intended to kill and I bear that in mind. 
Applying the aggravating feature and that mitigating feature to the accepted starting point of 15 years I will recommend that you will serve a minimum of 17 years' in prison before you're considered by the Parole Board for release."  
Then the learned judge went on to announce the deduction of time on remand. 
13.	The core submission of Mr Spencer QC is that the judge was not entitled to make his finding as to a racial element in the offence, particularly against the background that in discussion before sentence, he had indicated that he would not be relying on racial aggravation to work from a starting point of 30 years, pursuant to paragraph 5(2)(g) of Schedule 21 of the 2003 Act.
14.	Mr Spencer, in some detail, criticises the evidential basis upon which the judge must have made his finding and indeed the evidential basis upon which, in part, he said he made his findings.
15.	The finding must have been based, so Mr Spencer submits, on the evidence of the deceased's girlfriend, Joanna.  She speaks little or no English.  She gave evidence through an interpreter.  It was based to a degree, according to what the judge himself said, on the comment of Mr Jones.  The girlfriend, Joanna, gave evidence in the trial that in shouting during the first fighting, she was aware of remarks being made including the word "Polish" and abusive remarks, but that is it is submitted should not have been relied upon, because it was in conflict with the evidence of Damian, her brother, who spoke better English, who was equally close if not closer to at the material time and did not claim to have heard any such thing.  
16.	As regards the evidence of Mr Jones, the judge's reliance upon that is criticised in a number of ways, not just the fact that the Crown did not expressly invite the judge to rely on it in this context.  It is submitted that Mr Jones was clearly wrong on another aspect of the evidence, as indeed he was, where he wrongly transposed the deceased and the other Polish man, Damian, in part of his description of the confrontation which undoubtedly was in fact between the deceased and the appellant.  It is pointed out that the witness in fact heard what he thought was an argument taking place in a foreign language, which it is suggested was more consistent with the appellant, who would have sounded to him a foreigner because of his thick Glaswegian accent.  In various ways it is submitted that Mr Jones' evidence was not capable of being relied upon by the judge in support of the inference of some racial motivation.  The combination of these factors is that the judge should not have placed reliance on either witness in this context.
17.	We have considered those submissions made in considerable detail by Mr Spencer, but we do not accept them.  It is well established that following a trial in which a judge has heard all the evidence, the judge is entitled to form his own conclusion as to the factual basis upon which he should sentence.  Undoubtedly a confrontation occurred.  No other reason for it emerges from the evidence of the appellant or from any other evidence in the case.  It seems to us that the judge was entitled to conclude that the different national backgrounds of the participants in this confrontation played a part in what occurred.  There was a flare up here of  gratuitous violence.  In view of the girlfriend's account in which the word "Polish" was heard, even if she did not understand the rest of the content of the argument, there was enough evidence on which the judge could make the finding, albeit this was not a case, as the judge himself recognised, in which the racial element would have justified taking the huge leap from a starting point of 15 years to a starting point of 30 years.
18.	It is then submitted that the judge was wrong not to have regard to other mitigating factors over and above the one to which he did specifically refer, which was intention to do serious bodily harm rather than to kill.
19.	The other factors to which we will return in a moment are lack of premeditation and provocative conduct on the part of the deceased.  But as to lack of intent to kill, the number of knife wounds was in this case is significant.  A significant degree of force was required to inflict the fatal wound, which broke through a rib before entering the heart, though it is to be noted that the pathologist accepted that the degree of force required to cause it must be tempered by the fact that this was a dynamic event in which the deceased was moving towards the defendant at the time he inflicted his blow.  That would have reduced the degree of force required.  But it seems to us, in any event, that in the case of a stabbing injury to the chest, penetrating the heart, intent to cause grievous bodily harm rather than to kill would carry little weight when the injury was inflicted with such a weapon.  We would refer in this context to part of the judgment of Judge LJ, as he then was, Deputy Chief Justice in R v Peters [2005] 2 Cr App R(S) 101 at page 627, in the course of which he made a number of comments at paragraphs 13 to 16 as to the force which this particular mitigating factor might or might not have.
20.	The further factors relied on were lack of premeditation and provocative conduct.  In our judgment, these also, though the judge did not specifically advert to them, would carry little weight.  In view of the fact that after the first violence, in which undoubtedly there was aggressive conduct on the part of the deceased, the appellant returned to the house for a knife, was warned not to go out and use it, but did in fact return to the scene with it.  It seems to us the judge was entitled to conclude, as in our judgment he must have done, though he did not spell it out, that the appellant took the knife with a view to using it in a punitive rather than merely defensive fashion.  That is what he appears to have done.
21.	It seems to us that the judge has a wide judicial discretion to fix the minimum term within the framework of Schedule 21.  Paragraphs 10 and 11 of the schedule do no more than set out examples of aggravating and mitigating circumstances.  The sentencing remarks in this case were characteristically terse and to the point.  Some judges would no doubt have made lengthier remarks, but we are not inclined to be critical on that account.  We would add that the learned judge could have made specific reference to this man's bad past record for offences of violence, which he undoubtedly had in mind, that record having been in evidence before the jury.
22.	We remain unpersuaded, despite the valiant efforts of Mr Spencer, that the minimum term here was manifestly excessive and the appeal is therefore dismissed.