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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Hodges, R. v (Rev1) [2021] EWCA Crim 1298 (30 July 2021) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2021/1298.html Cite as: [2021] EWCA Crim 1298 |
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CRIMINAL DIVISION
B e f o r e :
MR JUSTICE SPENCER
HIS HONOUR JUDGE MICHAEL CHAMBERS QC
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| DANIEL HODGES |
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MAGARIAN
QC appeared on behalf of the Appellant.
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Crown Copyright ©
NOTE: this is the final revised version of the judgment and replaces the unrevised version previously published in error, which has been withdrawn.
MR JUSTICE SPENCER:
Magarian
QC for his written and oral submissions. He and his instructing solicitors came into the case only in December 2020. We also have the benefit of a respondent's notice settled by prosecuting counsel at trial.
Magarian
acknowledges, that the delay in pursuing this appeal is so exceptionally long that the court would have to be satisfied that there is very good reason to extend time. It is totally unacceptable for an appellant to pick and choose when he will pursue his appeal, regardless of the passage of time. Nevertheless, we shall consider the merits of the proposed appeal before returning to the issue of delay and the application for the extension.
The factual background
"It's all over for me now. It's fucked. I want to commit suicide."
Magarian
helpfully points out, there is some suggestion in the evidence that initially he had been given the idea of this by one of his housemates. Be that as it may, the fact is that he went through with it.
"Dreams and hopes have been dashed and those close to the deceased have been left with an unfillable void."
The judge's sentencing remarks
Magarian
has arrived at the same conclusion, that the judge must have reduced by one-sixth the minimum term which he had arrived at after balancing the aggravating and mitigating factors. As a matter of arithmetic, the final figure of 17˝ years represents a starting point of 21 years. We proceed on that basis.
The grounds of appeal
Magarian,
is that the minimum term of 17˝ years was manifestly excessive for a variety of reasons.
Magarian
has mentioned this as well in his oral submissions, that there was before the judge at the sentencing hearing a letter from the applicant's sister which referred in graphic detail to the abusive treatment that her brother and she herself had suffered at the hands of their father. The judge was, therefore, fully aware of the underlying facts of the applicant's traumatic childhood abuse, even if it had not been diagnosed at that stage as PTSD. As we have already indicated, the judge said in terms that he took into account Dr Blackwood's report and regarded it as affording mitigation.
Magarian
submits that the minimum term would not have been higher than 17 ˝ years after a trial and that there cannot therefore have been any proper credit for the applicant's guilty plea. In his oral submissions, Mr
Magarian
has developed this point. He submits that to have ended up at 21 years the judge must have started at a figure considerably in excess of that before taking into account the mitigating factors. Mr
Magarian
suggests 24 years. Mr
Magarian
submits that the aggravating factors here did not and could not have justified going up to anything like 24 years. He suggests that perhaps an increase from 15 years to 19 years or so would have been the most that the aggravating factors justified. There would then have to be a reduction for the mitigating factors, perhaps to 16 or 17 years, and then a reduction of one-sixth for the guilty plea bringing the figure down to somewhere in the region of 15 years, the starting point under the guideline.
Magarian
also suggested that, if the judge had gone up to 24 years, the mitigating factors should have justified more than a three-year reduction. In general terms, he submitted that the judge had simply not given sufficient weight to the additional mitigation of the applicant's acknowledging his guilt, as reflected in the guilty plea.
Magarian's
is whether 21 years after trial was manifestly excessive.
Discussion
Magarian
submits that the judge was wrong to regard it as an aggravating factor that the applicant fetched the knife from the kitchen, although he has not pursued that so firmly in his oral submissions. It is plain that the judge was not suggesting that this in any way equated with the higher starting point of 25 years for a knife brought to the scene, although there are authorities which suggest that taking a knife from one part of the building to another can sometimes satisfy that test. Rather, the judge regarded it as an aggravating factor that in the course of his rage, discovering what he believed to be further evidence of the deceased's infidelity, he had deliberately gone to the kitchen to fetch a knife. That was in our view properly to be regarded as an aggravating factor. We do not know precisely at what time he read the message from "Jason", but we have already said that it was sent about three-quarters of an hour before the murder.
Disposal
Magarian's
submissions, written and oral, we are quite satisfied that the combination of all the aggravating factors, even allowing for the mitigating factors identified by the judge and put forward so ably by Mr
Magarian, amply justified the minimum term of 17˝ years. It is not arguable that it was manifestly excessive.