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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: [2007] EWHC 2726 (QB)

Case No: 2004/1079/MTR
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 22/11/2007

Before:

THE HON MR JUSTICE IRWIN

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SETTING OF MINIMUM TERMS IN RELATION TO ANDREW JOHN HUMPHERSTON
PURSUANT TO PARAGRAPH 3, SCHEDULE 22 OF THE CRMININAL JUSTICE ACT 2003
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DECISION


Mr Justice Irwin :
 
1. This case is referred to the court under Schedule 22 of the Criminal Justice Act 2003 in order for the court to make an order under Section 269 of the Act in relation to a mandatory life sentence passed upon Andrew John Humpherston for the murder of David Miles on 25 September 1997.  I have considered the representations made in writing on behalf of Mr Humpherston made on 10 January 2005 and 23 October 2007.  Mr Humpherston has not requested an oral hearing.  I have considered the trial judge’s report.
2. Mr Humpherston is an “existing prisoner” within the meaning of Schedule 2 to the Act.  He was convicted by the jury of this murder after a trial in the Birmingham Crown Court between 15 and 22 June 1998, and on the latter date was sentenced to life imprisonment.  In her report to the Home Secretary, the trial judge Mrs Justice Ebsworth DBE recommended a minimum term of 14 years.
3. Mr Humpherston was born on 21 March 1977 and was thus only 20 years old at the time of the offence.  He had a significant criminal record despite his young age, including many offences of dishonesty and a number of convictions of robbery.  On 5 December 1997 he was sentenced to 2 years detention in a Young Offenders Institution in respect of 5 offences of robbery and one of attempted robbery, with 6 further similar offences taken into consideration.  These offences pre-dated the homicide, but the sentences passed came between his arrest for murder and the trial.  Mr Humpherston had a disturbed personality and was a long term abuser of alcohol and drugs.  A psychiatric report prepared before trial but presented to the trial judge after the conviction recorded that his personality was paranoid to the point of pseudo hallucinations but that he had had no history of mental health treatment.  There was a personality disorder which would not have amounted to diminished responsibility but was significantly disabling.  He did not fall within Mental Health Act criteria for psychopathy. 
4. The trial judge summarised the facts of the offence in her report to the Home Secretary.  Mr Humpherston killed a 56 year old homosexual, David Miles, by kicking and stamping him on the face, neck and body.  According to the pathologist there were “dozens and dozens of blows” with a heavily shod foot and seven or eight stamps or jumps.  Mr Miles sustained very many fractures of the bones in the face, neck and head, and fractures to six ribs on both sides, with underlying penetrating damage to the liver and gut.  There was no dispute about the ferocity and effect of the attack. 
5. Mr Humpherston had consumed 13/14 pints of lager and cider combined with diazepam and cannabis.  He suggested to the jury that Mr Miles had made a sexual advance towards him and that that was the precipitating factor for the violence.  When he had been arrested, he had advanced a different story suggesting that Mr Miles had violently assaulted him and threatened him.  The jury clearly rejected the Defendant’s count, convicting Mr Humpherston of an additional account of robbery in relation to this incident, an allegation to which his co-defendant Debbie Coward had pleaded guilty.  The property stolen was probably minimal, consisting of cans of lager, a credit card and spectacles. 
6. The recommendation by the trial judge was expressed as follows:
“15 years, taking a balance between his age and his capacity for dangerous behaviour.”
The comments of the Lord Chief Justice Lord Bingham read as follows:
“I agree with the judge that a term of 14 to 15 years would be appropriate.  Release will plainly depend on the assessment then made of the offenders mental state and his success in addressing his addictions.”
7. On 25 June 1999, the Secretary of State wrote to Mr Humpherston setting the tariff period to be served at 15 years. 
8. This is not a case in which there should be an order under Section 269(4) that the early release provision should not apply to the prisoner, and I must determine the part of the sentence that the prisoner must serve before the provi9sions apply to him.  I may not determine a period greater than that set by the Home Secretary.  In determining the minimum period, I must consider the seriousness of the offence of murder that Mr Humpherston committed, and in doing so, I must have regard to the general principles set out in Schedule 21 of the Act and also to the recommendation made by the trial judge. 
9. I consider that the starting point for determining the minimum term in this case is 30 years.  This was a murder done in furtherance of a robbery and, given that the Defendant was over 18 at the time, the case falls within paragraph 5.2 (c) of Schedule 21 2003 Act. 
10. Beyond the feature of the offence I have already identified, which leads to a starting point of 30 years, there are no further particular aggravating features of the case.  There are significant mitigating factors.  This was not a premeditated or planned offence.  Mr Humpherston was only 20 at the time.  Further, as I have set out already in this judgment, he was suffering from a mental disorder which did not fall within a category which formally diminished his responsibility within the meaning of Section 2(1) of the Homicide Act 1957 but which can be taken into account so as to lower his degree of culpability. 
11. Although not an aggravating feature of this specific offence, it is appropriate to recall that this offender had significant convictions for serious offences at the time of the homicide. 
12. Bearing all those factors in mind, I am of the view that the appropriate term for the tariff in this case would in other circumstances be 19 years in custody.  However, in the light of the term actually notified by the Secretary of State in this case, the proper minimum term applying the provisions of Section 269 of the 2003 Act is 15 years. 
13. I am also to have regard to the effect of any direction which would have been given with regard to crediting time on remand in custody if the court had sentenced the prisoner to a term of imprisonment.  Allowing for the fact that Mr Humpherston received a separate sentence on 5 December 1997, and was a serving prisoner at the time of his sentence for murder.  There is no remand time by which the minimum period should be reduced. 
14. Accordingly, the minimum term in this case is to be 15 years.  The early release provisions are to apply as soon as that term has been served.


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