Court of Appeal Criminal Division

Published June 5, 2007

Regina v Brown Regina v Carty

Before Lord Phillips of Worth Matravers, Lord Chief Justice, Mr Justice Henriques and Mr Justice Teare

Judgment May 14, 2007

Where two codefendants committed a murder jointly and one was aged just over 18 and the other just under, the sentencing judge, in fixing the minimum terms to be served, should adopt the starting point appropriate to each age and then move to a position where any sentence disparity was no more than a fair reflection of the age difference between the offenders.

The Court of Appeal, Criminal Division, so held on applications by the Attorney-General, under section 36 of the Criminal Justice Act 1988, to refer to the court as being unduly lenient, sentences imposed by Mr Justice Aikens at the Central Criminal Court on November 28, 2006 following the conviction for murder on: (i) Delano Brown, who was sentenced to detention during her Majesty’s pleasure with a minimum term of 17 years, and (ii) Donnel Carty, who was sentenced to detention for life with a minimum term of 21 years.

In Brown’s case a minimum term of 20 years was substituted. The application was dismissed in Carty’s case. Appeals against sentence by both the defendants were dismissed.

Mr Mark Ellison for the Attorney-General; Mr Simon Denison for the Crown; Mr Courtenay Griffiths, QC for Brown and M r David Whitehouse, QC, for Carty, both assigned by the Registrar of Criminal Appeals.

THE LORD CHIEF JUSTICE, giving the judgment of the court, said that, at the time of the murder, Carty was 18 years and 7 months old and Brown was 17 years and 9 months old.

The prosecution was not able to prove which of them had stabbed the deceased; but each had joined in the use of a knife with intent to cause at least serious injury in the course of a robbery. Both were treated as of previous good character and both were of normal maturity for their age.

Pursuant to Schedule 21 to the Criminal Justice Act 2003, as Carty was over 18 and the murder was committed in the course of a robbery, the starting point was a minimum term to be served of 30 years. As Brown was 17 the starting point in his case was 12 years.

Mr Whitehouse had submitted that the only distinction between their positions was that Carty was 10 months older than Brown. The judge had expressly found that, so far as the seriousness of the offending was concerned, there was nothing to choose between them. The difference of four years between the minimum terms imposed constituted a gross disparity which violated the principle of parity in sentencing.

Mr Griffiths had submitted that the judge had been mistaken in principle in attempting to balance the sentences imposed. He had mistakenly increased Brown’s sentence far more than could be justified in an attempt to reduce the disparity. The different starting points were statutory requirements and the judge should have sentenced Brown quite independently of Carty.

What was the appropriate approach where two codefendants committed a murder jointly and one was just over 18 years of age and the other just under?

That question raised an acute problem for the sentencer where the murder fell into the particularly serious category that attracted a 30-year starting point for an offender who was over 18.

Was Mr Griffiths correct to submit that the court should determine the sentence of each offender independently of the position of the other? Their Lordships did not consider that he was.

Schedule 21 provided starting points where the facts of the offence were common to both offenders and the starting points were different only because of the disparity between their ages.

The sentencer should then move to a position where any disparity between the sentences was no more than a fair reflection of the age difference between the offenders. That complied with the obvious requirements of justice.

Adopting that approach, their Lordships did not consider that the small disparity in age between Carty and Brown could properly be reflected by more than one year’s difference in the minimum terms imposed.

The judge had reached a perfectly appropriate sentence in Carty’s case. Brown’s minimum term would be increased to 20 years.

Solicitors: Treasury Solicitor; Crown Prosecution Service, Headquarters.

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