MURDER TRIAL: Judge's sentencing comments
Prior to sentencing four people for killing 36-year-old Tristram Wallace in Stratford last June Justice Holroyde explained his decisions on sentencing.
"NEIL Potter and Peter Mallon, you have been convicted of the murder of Tristram Wallace. Tony Jelf and Donna Windsor, you have pleaded guilty to the manslaughter of Mr Wallace. You three men, volubly encouraged by Donna Windsor, attacked him with punches, kicks and stamps at a busy road junction in Stratford-upon-Avon.
"Members of the public intervened to stop you violence, and Mr Wallace was assisted to his feet and began to walk away. But not content with the harm you had already caused him, you all four pursued him and attacked him again a short distance away. He died, in pain and in fear, at the side of the road.
"Mr Wallace’s life was cruelly ended in that way because you wrongly thought he was a cheating drug dealer. Your friend Florence Caines had bought from someone a number of wraps which she thought contained cocaine but which in fact contained a mixture of curry powder and sugar. The four of you, and Florence Caines, met on the towpath beside the canal. I have no doubt that you were all incensed by the thought that your friend had been cheated. By misfortune, Mr Wallace happened to walk past. Florence Caines pointed him out as the drug dealer, and you set off in pursuit.
"It should be said at once that there has not been a word of evidence to suggest that Mr Wallace was in fact a drug dealer. On the contrary, the evidence showed that he was not. An exhaustive analysis by the police of CCTV footage showed that he had passed the day in wandering around the town, doing nobody any harm. But when you caught up with him, you ignored his protests that he had not sold any drugs and that he did not have any money. I have no doubt that you were determined to recover money from him, and to exact revenge for what you thought had happened.
"The jury have been directed that there is a special need for caution in identification cases, because even honest witnesses may have made a mistake of identification. It is a dreadful irony that you, who have had the benefit of that direction, ended a man’s life because you were so quick to assume that Mr Wallace had been correctly identified. The court has heard from many eye witnesses. They were patently honest, decent and public-spirited people trying to assist the court. There were differences between some of their accounts and in some instances their evidence included clear errors.
"But such things are to be expected when this sort of frightening street violence flares up, and I accept the prosecution submission that a clear broad picture emerges from the totality of the evidence. I am sure that each of the three male defendants were actively involved in the violence at scene 1. You, Neil Potter started it. You confronted and challenged Mr Wallace, and I do not believe your evidence that you did so in reasonable and polite terms. The evidence shows that he struck the first blow, but the jury have rejected your claim that your actions were only self-defence.
"In the joint attacks which followed, I am satisfied by the evidence that it was you Neil Potter who used the railings as a support in order to stamp down onto Mr Wallace. That apart, I cannot say for sure who struck precisely which blows, but I am sure that the general nature was punching, kicking and stamping by all three of you men as a group. If any one of you did not deliver a stamp, you were standing very close to someone who did and yet carried on regardless. Your part, Donna Windsor, was initially limited to shouting encouragement; but when you pursued Mr Wallace along the road, I am sure that all four of you were involved in a further attack on him which included stamping and kicking which this time was directed not only to his body but also to his head.
"You Neil Potter were the most seriously involved. You Peter Mallon were not far behind him in what you did. At the end of it all, you Tony Jelf could be heard complaining that you had hurt your hand because you had hit your victim so hard. You Donna Windsor were rather less involved, your personal use of violence being limited to the second attack, though by then you knew what the others had done to Mr Wallace and you could see what a vulnerable state he was in. But the essence of your crime was that you all played your parts in a joint attack.
You were all being told by members of the public to stop and that your victim had had enough, but you were not deterred or inhibited by that. Some members of the public bravely intervened, putting themselves in positions of danger in order to get you away from your victim, but were not even deterred by that: you were so intent on attacking Mr Wallace that you tried to get past them in order to kick and punch your victim.
You Neil Potter were actually pulled away by your girlfriend Florence Caines, but even that did not stop you going after Mr Wallace and attacking him again at scene 2. You all pursued your attack in the most determined way until you realised the police were coming, and then you fled the scene without a backward glance at the man you had left lying on the ground. You may not have expected him to die, but you certainly knew he was in a bad way. None of you lifted a finger to help him, or showed the slightest concern for him or for what you had done.
"Three of you pleaded guilty to manslaughter, and so acknowledged that you had unlawfully killed Mr Wallace. You Tony Jelf pleaded guilty at an early stage, you Donna Windsor did so only on the day of your trial. You are to be sentenced for manslaughter and you will receive appropriate credit for those guilty pleas. But having observed you throughout the trial, I do not believe that those guilty pleas in themselves reflect much real remorse. You Peter Mallon accepted some criminal responsibility for the death of Mr Wallace, but the jury have found you guilty of the more serious crime of murder. You Neil Potter denied any unlawful conduct and can claim no credit for any admission of criminal responsibility for the death. I have watched you all throughout the trial, and I have seen little sign that listening to the evidence of what you did has led any of your to feel any particular remorse.
"The submissions of counsel have however persuaded me that in your cases, Peter Mallon and Donna Windsor, there is some genuine remorse. You have all appeared before the courts on many previous occasions. In each of your cases, your previous convictions are an aggravating feature of this crime.
"You, Neil Potter, were born on 23.03.79, and you are now 37. You have been sentence by the courts on 35 occasions for a total of 59 offences. Most have been offences of dishonesty but your convictions include one for affray when you were aged 23. Most significantly, in December 2006, when you were aged 27, you were sentenced to 40 months’ imprisonment for an offence of causing grievous bodily harm with intent. That offence involved an attack on a man in his own him, using a weapon. The circumstances were very different from the killing of Mr Wallace, but that previous offence showed a similar willingness to use serious violence by way of retribution. I regard that previous conviction as a particularly serious aggravating feature in your case.
"You, Tony Jelf, were born on 25.5.76, you are now 39. You have been sentenced by the courts on 29 occasions for a total of 50 offences. Most have been offences for dishonesty and offences reflecting your drunkenness, but your convictions include an assault on a police officer in 2004 and a battery in 2012. You were subject to a conditional order of discharge imposed on 28.5.15, less than four weeks before this offence.
"You, Peter Mallon, were born on 04.03.74, and you are now 42. You have been sentenced by the courts on 38 occasions for a total of 68 offences. Most have been offences of dishonesty and disorderly behaviour when drunk, but your previous convictions include offences of assault occasioning actual bodily harm and common assault some years ago and five Public Order Act offences, the most recent of which was 2011. Your last previous court appearance was only two months before this offence.
"You, Donna Windsor, were born on 22.09.77, and you are now 38. You have been sentenced by the courts on 16 occasions for a total of 38 offences. Almost all have been offences of theft (no doubt to fund drugs) and drug offences, but your previous convictions include an offence of common assault in 2010. You were subject to a community order at the time of this offence.
"Every crime of homicide ends one life but brings misery to many others. So it is in this case: the family of Tristram Wallace are left to mourn his death, and to live with the knowledge of how he died. They have been present in court to hear the evidence. Their anguish is very clearly expressed in the personal statements of Mr Wallace’s mother and grandmother, and in the oral evidence which his mother has given this afternoon. I have those statement well in mind. However, no sentence can compensate for the loss of a loved one, and it should not be thought that the sentences I am about to pass are in any sense an attempt to place a value on Mr Wallace’s life.
"Neil Potter and Peter Mallon, the sentence for murder is fixed by law. It is a sentence of life imprisonment. I have to decide the minimum term which you must serve before you can be considered for release on licence. In doing that I must apply the provisions of Schedule 21 to the Criminal Justice Act 2003, which sets out the appropriate starting point for that minimum term and lists some of the aggravating and mitigating factors which may increase or reduce that minimum term. Before I come to that exercise, I must emphasise — so that you and the public fully understand the position — two features of a life sentence.
"First, it must be understood that when you have served the minimum term which I am about to state, you will not automatically be released. You will only be released if and when the Parole Board are satisfied that you do not pose a danger to the public. Secondly, even when you are released, you will remain subject to the terms of your licence for the rest of your life. If you fail to comply with the terms of your licence, or if you reoffend or show that you are likely to reoffend, the Secretary of State will have the power to recall you to prison to continue to serve your life sentence until it is thought safe to release you.
"In your cases, Tony Jelf and Donna Windsor, the maximum sentence for manslaughter is life imprisonment. I have to consider whether you are a dangerous offender as that term is defined for the purposes of the Criminal Justice Act 2003. The effect of the legislation, in simple terms, is that in each of your cases, I have to consider whether there is a significant risk that you will in future cause serious harm to members of the public by committing further serious crimes of violence.
"I have not felt it necessary to adjourn for any psychiatric report directed to that issue. I make my decision on the basis of the clear evidence I have heard during this trial about your behaviour on 22nd June, 2015, together with the information I have about your previous convictions and the lifestyles you were leading last year. You have both been abusers of alcohol and drugs. On 22nd June, 2015, each of you showed yourself very quick and very willing to join in an attack on a man who was outnumbered and defenceless. For each of you, the motive to attack Mr Wallace was very slight. You, Donna Windsor, were willing to do so simply because you had handed over £20 to Florence Caines but had not received any cocaine.
"You, Tony Jelf, had had no involvement in any drugs deal and had not lost any money. You were not even a particular friend of Neil Potter, who started the violence. Yet you were merciless in the pursuit of vengeance on his behalf, and by the comments which you and others made to members of the public you made it clear that you had no concern for the law. It is true that the majority of injuries to which you contributed were not particularly serious in themselves, but it seems to me that was a matter of chance: it was certainly no thanks to you, because the evidence I have heard makes it clear that you used extensive violence with fists and feet.
"In your case, Tony Jelf, the unrestrained and uncontrollable violence which you were immediately willing to use, for such a flimsy motive and despite the intervention of members of the public, makes me sure that there is a significant risk that you will in the future commit further serious offences of violence and cause serious harm to members of the public.
"Serious though it is, I do not regard this as a case of manslaughter which is so particularly serious that it calls for a life sentence pursuant to section 225 of the Criminal Justice Act 2003. I am however satisfied that in your case, Tony Jelf, I can only sufficiently protect the public against the risk of future harm by passing an extended sentence. The effect of such a sentence is that you will not be eligible for release until you have served two-thirds of the custodial term which I impose, and even then you will only be released when the Parole Board is satisfied that it is no longer necessary for the protection of the public to keep you in custody. Once released you will then be subject to licence supervision for the remainder of your custodial term and then for a further extended period.
"In you case, Windsor, I can and do draw a distinction. I regard you as pathetic rather than vicious, and I take into account that you did not join in the violence until a later stage. I do not make a finding of dangerousness in your case. You will receive a determinate sentence. You will serve half of it, and then be on licence for the remainder of the term.
"I now consider the features of the case which, under the 2003 Act, are relevant to the sentences for murder. Similar considerations will apply to my decision as to the sentences for manslaughter. In your cases, Neil Potter and Peter Mallon, the prosecution have rightly not suggested this was a killing in the course of or in connection with robbery, but rather a punishment or revenge beating of a man suspected of having sold fake drugs. Therefore the statutory starting point for the minimum term is 15 years.
"So far as mitigating factors are concerned, I accept that you did not intend to kill and that you have been convicted of murder on the basis that you intended to cause really serious injury. That is a significant factor, which does lower the starting point to some extent. This was however a sustained attack by a group, involving kicking and stamping, and there is no doubt that some of the punches and kicks were aimed at and connected with the head. This joint attack, which you intended to cause really serious injury, therefore carried a significant risk of death, and you recklessly took that risk.
"I accept that there was also a lack of premeditation. That point can however carry only limited weight, because I am sure that you were both very angry that fake drugs had been sold, and very ready to vent your anger. As soon as Florence Caines wrongly pointed out Mr Wallace, you went after him within a matter of seconds. No great planning was needed to accomplish the punishment and revenge on which you were intent.I am unable to identify any other mitigating feature. I accept that there is the absence of a potential aggravating feature, in that no weapons were carried. However, you both used your shod feet as weapons, and in your case Peter Mallon your feet were shod with heavy boots.
"I must also take into account a number of serious aggravating features. They are as follows. First, and most importantly, the circumstances of this killing add substantially to its seriousness. It is rooted in criminal activity: seeking revenge or punishment for alleged cheating in connection with the sale and purchase of a class A controlled drug. None of you has shown the slightest concern for this aspect of the case. Your attitude to the law is clearly apparent from your scornful and threatening response to those members of the public who suggested that if money had been stolen, the police should be called.
"Secondly, this was a joint attack, sustained and carried over to a second location. At both locations Mr Wallace was heavily outnumbered, and was attacked when he was defenceless on the ground. At both scene, the violence was carried out in front of shocked and frightened members of the public, including at least one young boy.
"Thirdly, I have regard to the high level of suffering inflicted on Tristram Wallace. He was badly beaten at scene 1. As one of the witnesses said, you were merciless in the way you attacked him. When he staggered away to scene 2, bleeding and breathless, he was clearly incapable of doing anything to defend himself, and was highly vulnerable. He must have been terrified when it became obvious that you were pursuing him and intent on more violence: that is apparent from his forlorn appeal to bystanders, “Help me please, for the love of God help me”.
"Fourthly, the appalling indignity to which Mr Wallace was subjected as you tore at his clothing and felt into his underpants whilst he lay helpless on the ground. To which must be added, the casual and callous theft by you Tony Jelf of his jacket. I reject as untrue your ridiculous evidence that you first thought it was your own jacket, and then thought it must be Neil Potter’s: you took it knowing full well that it belonged to the man you had attacked, and the fact that you took it shows that your violence was accompanied by a complete disregard of common humanity.
Lastly, your intoxication by drink and/or drugs. Vividly illustrated in your case, Tony Jelf, by your pausing for a drink of beer before pursuing your victim from scene 1 to scene 2. I have no doubt that the aggravating factors significantly outweigh the mitigating. The statutory starting point must be increased accordingly.
"It is important to emphasis that you, Tony Jelf and Donna Windsor, are to be sentenced on the basis that you did not intend to kill or to cause really serious injury. Your offence of manslaughter is therefore significantly less serious than murder. I do however regard this as a most serious example of this kind of manslaughter. The aggravating features of the offence which I have mentioned make it more serious than any of the cases which have been brought to my attention. For each of you, the offence is further aggravated by your previous convictions.
"You have all been remanded in custody since your arrests. That time will count towards the minimum term or sentence which I am about pronounce in each of your cases. I am told that the precise number of days to count towards you minimum terms, Neil Potter and Peter Mallon, is 318 days in each case.
"The court must impose a statutory surcharge on each of you, and the appropriate order will be drawn up.
"Neil Potter: the sentence on you for murder is life imprisonment. You must serve a minimum term of 18 years.
"Peter Mallon: the sentence on you for murder is life imprisonment. You must serve a minimum term of 16 years.
"Tony Jelf: the sentence on you for manslaughter is an extended sentence of imprisonment, which comprises a custodial term and an extended licence period. If you had not pleaded guilty, the custodial term would have been 14 years. Giving credit for your pleas, the custodial term is one of nine years four months’ imprisonment. When released from that custodial term your licence will be extended by a period of five years.
"Donna Windsor: the sentence on you for manslaughter is a determinate sentence of imprisonment. If you had not pleaded guilty, I would have sent you to prison for 11 years. Giving credit for your plea, the sentence on you is ten years’ imprisonment. For the offence of attempt theft, to which you pleaded guilty at an early stage, there will be a concurrent sentence of six months’ imprisonment."
