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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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Case No:  MTS / 43 / 2004
Neutral Citation Number:  [2006] EWHC 3259  (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION


Royal Courts of Justice
Strand, London, WC2A 2LL


Thursday 21 December  2006

 


Before:

MR JUSTICE PENRY-DAVEY

Between:

Regina

And

     Hector CEDENO         Defendant

 
The Honourable Mr Justice Penry-Davey:
1. This is an application by Hector Cedeno for the setting of a minimum term pursuant to schedule 22 paragraph 6 of the Criminal Justice Act 2003. On 15 February 2000 at the Central Criminal Court in a trial which began on 11 October 1999 the applicant was convicted of murder and sentenced to life imprisonment.
2. The applicant, his two co-defendants and the deceased were all Colombian. The co-defendant Luisa Bolivar was living with a man called Fernandez. On 8 January 1999 the deceased a 16 year old boy called Castillo ripped a gold chain from the neck of Fernandez during the course of a struggle. Thereafter Bolivar and Fernandez determined to track Castillo down and kill him. Bolivar procured the killing of the deceased by her two co-defendants who were hired to kill the deceased; it was a contract killing. The deceased was taken out in a car. While the co-defendant Guevara-Jaramil drove, the applicant garrotted him from behind. The body was abandoned in an industrial rubbish bin. Bolivar was the joint procurer of the murder with her lover Fernandez who left the country about an hour before the murder and has not returned. The applicant and Jaramil were contract killers. Although Fernandez was, probably rightly in the view of the trial judge, described in the evidence as “the intellectual actor” behind the murder the judge saw no reason to distinguish between the relative culpability of all three defendants. He described the offence as a cold blooded execution in respect of which he could find no mitigating circumstances. He recommended a minimum period of 16 – 18 years. The Lord Chief Justice Lord Bingham recommended a term of 17 years.
3. In relation to this application, despite several invitations to make representations the applicant has failed to do so. He has been informed that the case would proceed without his representations.
4. In fixing the appropriate specified period, I have to take into account first the seriousness of the offence, or of the combination of the offence and any one or more offences associated with it (section 269 (3) (a)). In considering that aspect of the matter I must have regard to the general principles set out in Schedule 21 to the Act. That schedule provides that a murder done for or in the expectation of gain, or for payment would normally fall within the category of particularly high seriousness, with a starting point in determining the minimum term of 30 years. Having chosen a starting point, I am required to take into account any aggravating or mitigating factors to the extent that they have not been allowed for in the choice of starting point. As to aggravating features, in my judgement it is the contract killing aspect of this matter which is the aggravating feature and that has already been taken into account in the starting point of 30 years. A further aggravating factor arises from the applicant’s previous convictions. Apart from road traffic convictions including driving while disqualified, he has convictions here and in America for offences   including robbery, attempted robbery and criminal sale of narcotics. I consider that an increase of 1 year would be appropriate to reflect that aspect of the matter, making the term 31 years. There is in my judgement no significant mitigation either within the categories set out in schedule 21 or more generally. Accordingly I would not reduce the term on that basis. I am then required by paragraph 7 of schedule 22 to have regard not only to the matters I have set out but also to any recommendation made to the Secretary of State by the trial judge or the Lord Chief Justice as to the minimum term to be served by the applicant before release on licence. Those recommendations respectively of 16 to 18 years and 17 years, were made at a time when the practice set out by Lord Bingham in his letter of 10 February 1997 had effect. It is difficult to determine what effect on a period of 31 years a recommendation by the trial judge and the Lord Chief Justice of 16,17 or 18 years would have, particularly when the gap between the two is, as here, very substantial. Doing the best I can I would be inclined to reduce the minimum period from 31 years to 25 years.
5. That however is not the end of the process. The term which I set must not be greater than that which the Secretary of State would have been likely to set under his practice before December 2002. In order to determine whether 25 years would be greater, I have to consider therefore what term the Secretary of State would have been likely to set following the recommendation by the trial judge and the Lord Chief Justice. Having regard to the fact that this conviction occurred at a time when the practice followed by trial judges and the Lord Chief Justice in setting minimum terms was based on Lord Bingham’s letter of 10 February 1997, I conclude that the trial judge following the practice set out in that letter would have recommended the period which he in fact recommended and that the Lord Chief Justice would have recommended to the Secretary of State a period of 17 years. In my judgement the Secretary of State would in the circumstances of this case have been likely to follow the recommendation of the Lord Chief Justice and would have fixed the minimum term as 17 years. As the term that I set must not be greater than that, I would be minded to fix the minimum term in this case as 17 years. There is however one further element to which I am required to have regard and that is the time spent by the applicant in custody on remand awaiting trial, namely a period of 12 months and 2 days. Taking that into account, I order that the provisions of Section 28 (5) to (8) of the Crime (Sentences) Act 1997 (the release provisions) are to apply to the applicant when he has served 15 years 363 days.


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