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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: [2008] EWHC 1162 (QB)

Case No: 2006/4/MTR
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 12/06/2008

Before :

MR. JUSTICE TEARE
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Between :

 REGINA 
 - and - 
 YOUSEF BOJANG 

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Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 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 TEARE


 
The Honourable Mr. Justice Teare:
 
1. This is an application under Schedule 22 of the Criminal Justice Act 2003 by Yousef Bojang (the applicant).

2. On 15 December 2000 the applicant, having been convicted of murder, was sentenced to life imprisonment. On 3 April 2002 the Home Secretary set the period to be served to satisfy the requirements of retribution and deterrence at 20 years (“the minimum term”).

3. The applicant is an “existing prisoner” within the meaning of Schedule 22 of the CJA 2003 and has made an application under paragraph 3 of that Schedule. My task is to specify that part of his sentence which the applicant must serve before the early release provisions will apply to him. The specified part of his sentence cannot however be longer that the minimum term notified to him by the Secretary of State.

4. In considering this matter I must have regard to the seriousness of the offence and in doing so I have had had regard to (i) the general principles set out in Schedule 21, (ii) the recommendations made by the trial judge (20 years) and the Lord Chief Justice (20 years) and (iii) the representations made on behalf of the applicant.   

5. I am also required to have regard to the effect that section 67 of the Criminal Justice Act 1967 would have had if the applicant had been sentenced to a term of imprisonment, provided that I am satisfied that, if he had been so sentenced, the length of his sentence would have  been treated as reduced by a particular period under that section: therefore the court takes account of any period that a person has spent in custody only because he was committed to custody by an order of the court made in connection with proceedings relating to the offence of  murder of which has been convicted. I am satisfied that in the present case I should have had regard to a period spent in custody by the applicant of 11 months 4 days.

6. The applicant has requested an oral hearing but there are no good reasons for allowing such a rare course to be followed; see Hammond [2004] EWHC Admin 2753. 

7. The applicant was born on 11 May 1959 and so was 41 at the time of conviction and sentence.  The offence of murder of which he was convicted was committed on 7 January 2000.  

8. The murder was described by the trial judge in his report to the Home Secretary as follows. The victim, Cole Mahoney, was the 8 month child of Anne Josephine Kelleher. She had moved into the applicant’s flat with her children on 10 December 1999. During the night of 6-7 January 2000 Cole Mahoney was put to bed in the main bedroom of the flat. At some point during the night the applicant went into the bedroom with a beanbag. Sometime later Cole was found dead. The jury were directed that they could find the applicant guilty of murder if they were sure that he had either suffocated Cole with the beanbag or killed him by inflicting a blow which had fractured Cole’s skull, intending wither to kill him or to cause him really serious harm. It was the judge’s view that the applicant had suffocated Cole by forcing the bean bag over Cole’s face and that the skull fracture had been inflicted on a previous occasion. The applicant was also found guilty of cruelty to Cole by wilfully assaulting him. At the post mortem there were found, in addition to the skull fracture, about 60 bruises on Cole’s body, 2 fractured ribs, a fracture of the ulna and a substantial and horrifying injury to his gums; the upper lip was separated from the skull. The judge considered that the killing was deliberate and that it had been preceded by a campaign of violence against a defenceless baby who must have suffered terrible cruelty before his death. The offence was committed whilst the applicant was on bail. During the trial the applicant showed no sign of remorse or sorrow.   

9. Since this murder does not fall within paragraphs 4 or 5 of Schedule 21 the starting point must be 15 years.  

10. I have to consider whether there are any aggravating features pursuant to paragraph 10 of Schedule 21. There plainly are. The victim was particularly vulnerable because he was a defenceless child. The applicant abused a position of trust. The killing was the culmination of a campaign of violence against a baby.

11. There were no mitigating features pursuant to paragraph 11 of Schedule 21. It has been submitted on the applicant’s behalf that there was an intention to cause really serious harm rather than an intention to kill. But this is unrealistic and inconsistent with the trial judge’s view that the killing was deliberate and achieved by suffocating the victim. It is also said that there was a lack of premeditation; yet the applicant took up the bean bag and went into the room where the victim was in bed. If the killing was spontaneous and with a lack of premeditation this factor is wholly outweighed by the dreadful aggravating features.

12. Having considered these matters I have concluded that, applying the general principles in Schedule 21 of the CJA 2003, the minimum period to be served would be 25 years.

13. The trial judge and the Lord Chief Justice each recommended 20 years. But they did not assess the seriousness with regard to the general principles set out in Schedule 21 of the CJA 2003. However, I cannot specify as the part of the sentence to be served before the early releases provisions apply a term longer than the minimum term notified by the Home Secretary.

14. The submissions made on behalf of the applicant refer to his progress in prison and the courses he has passed. In order to be taken into account such progress must usually be exceptional; see R v Caines [2006] EWCA 2915 and R v West [2008] EWCA 965. His progress is not so exceptional as to have any significant effect on the minimum period to be served.

15. I therefore specify as the part of the sentence to be served before the early release provisions apply as 20 years less 11 months 4 days.  

 


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