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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: [2006] EWHC 2535 (QB)

Case No: 2004/300/MTS
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL


Date: 19TH October 2006


Before:

 THE HON MR JUSTICE GIBBS
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Between:

 Regina  
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 Colin Ensoll 

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APPROVED JUDGMENT
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic

 
Mr Justice Gibbs:
1. On 13th June 2002 Colin Ensoll (“the defendant”) having been convicted after a trial of the offence of murder was sentenced by His Honour Judge Sir Rhys Davies QC to life imprisonment. The trial judge recommended that he serve a minimum term of twelve years to meet the requirements of retribution and general deterrence. Lord Woolf, then Chief Justice, agreed with this recommendation.
2. It now falls to me to set the minimum term pursuant to section 269 and Schedule 22 of the Criminal Justice Act 2003, the matter having been referred this Court by the Home Secretary.
3. The facts of the case were in summary as follows. The deceased was the former husband of the defendant’s wife Michelle. The deceased and Michelle had a son Nicholas, with whom the deceased had contact. On 16th December 2001 the deceased delivered his son back to his former wife after a period of contact. The deceased was accompanied by his fiancée Beverley Hope. After their arrival at the defendant’s home there was a discussion about the future arrangements for contact to and schooling of Nicholas (a child with special needs), which led to an argument. The defendant intervened, and launched a persistent and brutal attack on the deceased with fists and feet, in the course of which the defendant (who was wearing shoes) kicked the deceased to the head at least five times, causing a rupture to a major artery in his neck, from which he died on 25th December 2001. After rendering the deceased unconscious, the defendant picked him up, carried him outside into the garden of the house and dropped him to the pavement, kicking him again to the head and body. On the same occasion he also attacked the deceased’s fiancée in a similar fashion, as a result of which he was convicted of wounding with intent contrary to section 18 of the Offences against the Person Act. The defendant also pleaded guilty to an assault on Nicholas causing him actual bodily harm. For these two offences the judge sentenced the defendant to concurrent terms of imprisonment of 4 years and 1 year respectively. Apart from these matters, the defendant has no relevant convictions.
4. At trial, the defendant admitted responsibility for unlawfully killing the deceased, but denied the necessary intent for murder or section 18 wounding. He said that he had had 6 pints of strong lager and had no recollection of what he had done.
5. In setting the appropriate term I must take into account the seriousness of the offence, and in so doing must consider the general principles in Schedule 21 of the 2003 Act; the recommendations made by the trial judge and the Lord Chief Justice; and the guidelines applicable at the time the offence was committed. I must ensure that the term set complies with Article 7 of the European Convention on Human Rights (Schedule 22/8(a)). I also have regard to the guidance provided by the Consolidated Criminal Practice Direction (29th July 2004) paragraph IV.49, “Life Sentences” (“the CCPD”). The CCPD among other things clarifies the correct approach to looking at the practice of the Home Secretary prior to December 2002 for the purposes of schedule 22 of the Act, in the light of the judgment in R v Sullivan, Gibbs, Elener and Elener (2004 EWCA Crim 1762, (2005) 1 Cr App R 3, 1 Cr App R (S) 67. I also have regard to the provisions of section 67 of the Criminal Justice Act 1967 relating to the time spent on remand in custody.
6. I have also taken in to account the representations made on the defendant’s behalf, and I have read the Victim Impact Statement.
7. Schedule 21. Three possible starting points, dependent upon the seriousness of the offence, are provided by this schedule. The starting point applicable in the present case is 15 years (paragraph 6). The reason for so concluding is that no features are present in this case to justify a starting point of 30 years or a whole life tariff. The trial judge, a respected judge with considerable experience of homicide cases, who had heard all the evidence, decided that there was no reason to depart from the period which he took as the normal starting point for offences of murder. He said: “I would be minded to put this case into the normal starting point category where there are no specific aggravating or mitigating features”. Prior to reaching that conclusion the judge described the attack as “a persistent and brutal assault of terrifying ferocity”; he referred to the defendant’s subsequent expression of profound remorse, his claim to have suffered from memory loss (“blackouts”), and to his troubled background.
8. I agree with the trial judge’s assessment. Alternatively, insofar as there was mitigation to be derived from the lack of pre-meditation, it was balanced by the ferocity and persistence of the attack, by the fact that the attack extended not only to the deceased but to his fiancée, and by the fact that the defendant had also shown violence to the deceased’s young son.
9. I have considered the report of a Consultant Psychiatrist, Dr G McDade, dated 7th May 2002, which considered the issue of “blackouts”, and lent qualified support to the suggestion that these were caused by a state known as “Dissociative Amnesia”. However, in a letter dated 18th May 2004, Dr McDade no longer felt that this proposition was credible, in the light of further material which had come to his attention revealing significant inconsistencies in accounts given of relevant events by the Defendant.
10. In the result, applying the starting point under Schedule 21, and adopting the trial judge’s approach to aggravating and mitigating factors, I conclude that the appropriate period under Schedule 21 would be 15 years.
11. The Home Secretary’s practice before December 2002. However, pursuant to Schedule 22 paragraph 8 it is impermissible to set a minimum period which is greater than the Home Secretary would have been likely to notify under the practice followed by him before December 2002. Pursuant to the CCPD, the offence in this case having been committed on 15th September 2001, the best guide to his practice at the material time is the guidance provided to the judiciary by Lord Bingham CJ in a letter of 10th February 1997. Under that guidance, the starting point for a murder of “average” or “normal” seriousness was 14 years.  That starting point applies to the present offence. In terms of its approach to aggravating and mitigating factors, there is no significant difference for the purposes of the present case between Lord Bingham’s guidance, the guidance given subsequently by Lord Woolf in a Practice Statement of 31st May 2002, and the provisions of schedule 21. It therefore again seems to me appropriate to adopt the approach of the trial judge in determining the extent of variation from the starting point. As already mentioned, he saw no reason to depart from the starting point. Accordingly, by applying the guidance of 10th February 1997, one arrives at 14 years.
12. As already stated, the recommendation of the trial judge, endorsed by Lord Woolf, was 12 years. In considering the reasons for the difference between this lower recommendation and the rather higher minimum periods calculated under the preceding paragraphs I bear in mind the following matters: (a) that the setting of the tariff is not a mathematical exercise, but involves a considerable degree of judicial discretion and (b) that it is open to a judge to come to exactly the same decision under the guidance of 10th February 1997 as under that of 31st May 2002. Nonetheless, it is plain in my judgment from the remarks of the sentencing judge that the reason why he arrived at the figure of  12 years was that he took that, rather than 14 years as the normal starting point. This is no ground for criticism: the guidance which I am bound to follow had not been framed in its present form at the time of sentence. The comments of Lord Woolf CJ do not disclose his reason for agreeing that the appropriate minimum term was 12 years. It may well be that the period was chosen because the matter was considered shortly after Lord Woolf had issued his practice statement of 31st May 2002.
13. What then in these circumstances should be the appropriate term? For the reasons given in paragraph 11, a careful application of the CCPD to this case would result in a minimum term of 14 years. That in my view meets with the justice of the case. There is no element of retrospective increase in this tariff, since it is based squarely on principles applicable at the time of the offence.
14. I note that the representations on the defendant’s behalf include submissions that the setting of the minimum period should be made after an oral hearing, consideration on the papers being insufficient; that regard should be had to a degree of possible provocation notwithstanding the fact that the defence of provocation was not advanced at trial; and to the defendant’s good progress in prison.
15. I consider that the issues raised by this case are not such that an oral hearing would be either necessary or helpful. The relevant factors have been fully and helpfully canvassed in the papers, and no injustice is caused by the absence of an oral hearing. As regards provocation, no arguable basis is put forward to support this as a relevant factor, especially as the defendant claimed not to recall what happened. Finally, whilst the defendant’s good conduct in prison is to be commended, this is not a case in which the defendant’s progress in prison could arguably be described as “exceptional” so as to justify a reduction in tariff.
16. I conclude therefore that the appropriate minimum term is 14 years. Under section 67 of the 1967 Act there falls to be deducted the time that the defendant spent in custody, namely 5 months and 14 days. Accordingly the time set will be 13 years 6 months and 16 days.


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