Report on Mandatory Sentences - Law Reform Commission

or other weapon to inflict fatal injury should normally fall within the 25-year starting point. Thus,
paragraph 5A did not provide an entirely comprehensive framework to govern the starting point for
assessment of the determinate term for murders committed with a knife or other weapon. Paragraph 5A
was not confined to murders committed with the use of a knife which had been taken out on to, and used
on, the streets. Paragraph 5A would also apply to a case where a man walked home, bought a knife on
the way and killed his partner in the kitchen. It did not follow that a murder committed with a knife in the
offender’s home, or in the victim’s house, automatically fell outside the ambit of paragraph 5A.
3.28 The Court indicated that a knife taken from the kitchen of a home to another room in the same
home was not “taken to the scene” for the purposes of paragraph 5A, even if a locked door was forced
open. Accordingly, the first case did not fall within paragraph 5A, since the knife had not been taken to
the scene. However, in the circumstances, it did not make a difference to the eventual determination of
the minimum term. In the second case, the knife had been taken to the scene and the judge had been
correct to choose a starting point of 25 years for the minimum term. In the third case, S had taken the
knife to the scene and the judge had been right to find that paragraph 5A applied.
3.29 The fourth case demonstrated the kind of problems that would arise in the context of murders
committed with a knife taken to the scene where two or more offenders were convicted of murder on the
basis of joint enterprise. Given some of the difficulties which could arise in joint enterprise murders where
a weapon was used by one, but only one, of the murderers, the difficulties for sentencing judges were
likely to multiply. There would continue to be convictions for multi-handed murders where one or more of
the defendants were not aware that a knife or knives were being taken to the scene but, once violence
erupted, participated in it and were well aware that the knife would be or was being used with murderous
intent. Although guilty of murder, they were not party to the taking of the fatal weapon to the scene. Their
offence would be aggravated by the fact that they participated in a knife murder but paragraph 5A would
not provide the starting point in the sentencing decision. For those who did take part or were party to the
taking of a knife to the scene, then paragraph 5A would not provide the starting point in the sentencing
decision. For those who did take part, or who were party to the taking of a knife to the scene, then
paragraph 5A would provide the starting point but care had to be taken not to double count the fact that
they participated in a knife murder which has already been factored into the normal paragraph 5A starting
point. The judge would therefore be required to make the necessary findings of fact to identify the
appropriate starting point and thereafter to reach the sentencing decision required by the justice of the
case. As to the applicability of paragraph 5A in respect of H in the fourth case, there had been ample
evidence of planning for the attack. Furthermore, paragraph 5A was not to be analysed by reference only
to the distance that a knife was carried prior to its lethal use. Taking a weapon to the scene, and the
implications of such conduct on the sentence for murder, required a broader consideration than whether
the attack took place in the kitchen or the bedroom. In the fourth case, H had known that the knife was in
R’s possession; it was irrelevant that it was H who had used the knife, rather than R. That was the very
essence of joint enterprise. Accordingly, the applications for leave to appeal were refused, and the
appeal was dismissed.
3.30 In R v Dobson and Norris, 53 the defendants were sentenced for the racially motivated murder of
Stephen Lawrence in 1993. 54 As the defendants had been less than 18 years of age at the time of the
offence, the court (Treacy J) was obliged to sentence them as juvenile offenders and thus impose a
sentence of detention at Her Majesty’s pleasure. Given their juvenile status, Treacy J observed that an
appropriate starting point for the minimum term to be served by each offender was 12 years, which was
53
54
See: sentencing remarks of Treacy J, Central Criminal Court, 4 January 2012. Available at:
www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/sentencing-remarks-dobson-norris-120104.pdf
[Last accessed: 22 May 2013]
As the offence had been committed before the introduction of the Criminal Justice Act 2003, the previous
sentencing regime applied. This, however, is not a material distinction for the purposes of this discussion.
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