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Minimum terms

High Court setting of minimum terms for mandatory life sentences under the Criminal Justice Act 2003



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Neutral Citation Number: [2009] EWHC 1551 (QB)

Case No: 2004/713/MTS
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 07/07/2009

Before :

THE HONOURABLE MR JUSTICE DAVIS
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Between :

                                  REGINA Claimant
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                             SARFRAZ ALI Defendant

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Approved Judgment


 
Mr Justice Davis :
 
1. On 19 December 2002 after a trial before Sir Edwin Jowitt (sitting as a High Court Judge) and a jury at Northampton Crown Court the applicant was, with two others, convicted of a count of murder.  He was duly sentenced, as required by law, to life imprisonment.  The trial judge recommended that the minimum term to be served before the applicant could be considered for release was 16 years.  Because of the high profile nature of the case in the local community, the judge announced his recommendation in open court, giving reasons.
2. I am required, in assessing the minimum term to be specified, to have regard to the provisions of the Practice Direction [2004] 1 WLR 255; in particular paragraphs IV.49.22-31.  I am required to have regard to the approach to setting the tariff in murder cases applicable at the time.
3. The applicant was born on 9 July 1977.  He was married and, at the time of the offence, of previous good character.
4. The background facts, in summary, as recorded by the Trial Judge, were these.  The applicant, together with his co-accused, were Asians who lived in the part of Peterborough close to the city centre.  The events in America of 11 September 2001 had given rise to hostility on the part of some of the younger white residents of the city against the Asian community.  The defendants would have been conscious of this although there is no evidence that any of them or their families had personally suffered any harassment.  On the night of 20/21 September 2001 the applicant, together with two co-accused who were also convicted, went in a group to a night club in Peterborough.  They drank an amount, although they were not actually drunk when they left the club.  From the club the applicant, along with others, went to a garage and then walked towards an ill lit area quite close to the applicant’s home.  By this stage they had armed themselves with a large hunting knife, a hammer and a can of CS gas.  They also had between them three balaclavas with holes for eyes and mouth.  The deceased was a teenager called Ross Parker.  He was walking with his girl friend, Miss Tongs, along a cycle path.  They came across the group who were complete strangers to them.  As the couple walked along Ross Parker was set upon.  The attack was begun by the co-accused Shaied Nazir who sprayed Ross Parker in the face with CS gas;  and then he was stabbed three times with a knife from behind through his neck and chest, the knife penetrating each time to a depth of about 6 ins with its point twice emerging through the front of the chest.  He fell to the ground and then was kicked and struck with the hammer.  He bled to death.  Miss Tongs ran off to get help.  After the attack was over the group ran back to the garage, the three defendants and another man (Mahrad) going inside.  The trial judge’s conclusion was that the knife was wielded by the co-accused, Awan and that Awan was the ringleader and had intended to kill.  The judge’s conclusion with regard to the three defendants who were convicted was that when they left the garage they had a common purpose of finding a white male and attacking him with a knife simply because he was white.  It was a racist killing.  The judge also concluded that the applicant, and his co-accused Nazir, did not intend to kill;  but he must have known that death was a highly likely consequence of what they planned to do since they were well aware that Awan had the knife and intended to use it.
5. At trial the applicant had advanced a defence of alibi, saying that he was never at the scene of the killing at all and had never left the garage.  Clearly, by their verdict, the jury rejected his case.
6. I have studied and taken into account the careful and detailed written representations on behalf of the applicant, together with voluminous supporting materials.
7. In previous judgments I specified the minimum term to be served in the case of Shaied Nazir as 16 years and in the case of Ahmed Ali Awan (who the trial judge found had actually wielded the knife) as 18 years.  I concluded that the recommendations of the trial judge in the case of those two defendants were appropriate to the circumstances of the case and agreed with them.
8. There are four grounds advanced whereby it is said that the minimum term now to be specified in the case of this applicant should be less than the 16 years recommended by the trial judge;  or, at all events, should not exceed the 16 years recommended by the trial judge.  They are these:-
i) The trial judge adopted an unjustified basis in sentencing the defendants by concluding that this was a racist killing;
ii) The applicant has a legitimate expectation that his minimum term should not exceed that recommended by the trial judge;
iii) The circumstances of this case,  having regard to the Criminal Justice Act 2003, indicate that the minimum term should be no higher than 16 years;
iv) The exceptional progress of the applicant whilst in prison should in any case reduce the minimum term below 16 years.
9. The trial judge, having heard all the evidence, was in a good position to assess it and draw conclusions.  His conclusion is stated to have regard to “the evidence, including compelling inferences” and was that there was “a common purpose of finding a white male and attacking him with a knife simply because he was white”.  The trial judge was, notwithstanding the elaborate arguments to the contrary now advanced, in my view perfectly entitled so to conclude.
10. There is force in the second and third grounds.  Given that this killing had a racist element and involved a group attack with a knife, one might anticipate a higher minimum term under the provisions of the Criminal Justice Act 2003 had the matter post-dated 2005.  But regard must be had to the general tariff provisions applicable at the time of this offence;  and, as to the circumstances, the judge, as trial judge, was in a very good position to assess the matter.  Moreover, with regard to the co-accused, I endorsed in my previous judgments the trial judge’s recommendation as to the minimum terms in their case.  I can see no reason or justification for adopting a different approach in the present case.
11. As to the fourth ground, the applicant has clearly conducted himself very well indeed while in prison. He also has attracted positive reports and references from many quarters.  That is greatly to his credit.  However, I do not think such conduct, commendable though it is, can amount to “exceptional progress” of itself justifying a reduction in the minimum term otherwise appropriate.  Moreover while in his witness statement the applicant expresses great sympathy for the deceased’s family, he continues to maintain his innocence:  true remorse is therefore lacking.
12. In all the circumstances, I agree with the recommendation of the trial judge;  and, having regard to considerations of retribution and deterrence, I specify the minimum term to be served before the applicant may be considered for release on parole as 16 years imprisonment;  from which  a period of 154 days representing time on remand in custody should then further be deducted.
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