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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 351 (QB)

Case No: 2004/202/MTS
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 8th March 2007

Before :

MR JUSTICE WALKER
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Reference in the case of Peter Colin Topping for the setting of a minimum term
under the Criminal Justice Act 2003, schedule 22, paragraph 6:

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Judgment As Approved by the Court

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 WALKER


 
Mr Justice Walker :
 
1. On 15 March 2002 at Newcastle Upon Tyne Crown Court, after a trial before His Honour Judge Faulks and a jury, the defendant was convicted of murder of Darren Liddy He was sentenced to life imprisonment for murder with a recommendation, confirmed by the Lord Chief Justice, that a minimum of 14  years be served before release. Under paragraph 6 of schedule 22 to the Criminal Justice Act 2003 his case has been referred for the court to determine his minimum term. These are the reasons for my decision on that reference.
2. The circumstances of the offence, as set out in the trial judge’s report to the Home Secretary, were as follows:
“Late at night the Defendant was drunk and angry in his own home. He armed himself with a kitchen knife with an 8 inch blade. His brother fought with him to disarm him. Then his brother-in-law, the deceased, aged 24 entered the room. The Defendant stabbed him twice to the upper body causing 2, 6 inch long wounds. Death was caused by haemorrhage and shock.”
3. The issues before the court were self defence, intent and provocation. It was admitted that the defendant was responsible for the death of the deceased.
4. In determining the minimum term to be served by the applicant, I have directed myself by reference to the provisions of schedule 22 to the 2003 Act, in particular paragraphs 6 to 8. In assessing the seriousness of the offence I am required to have regard to the general principles set out in schedule 21 and to the recommendations made to the Secretary of State by the trial Judge and the Lord Chief Justice as to the minimum term to be served.
5. I have taken into account the Home Office’s file, including representations made on behalf of the applicant.
6. The judge’s sentencing remarks included the following:
“You are aged 28. The man you killed was your brother-in-law, aged 24. The incident occurred in the early hours of June 2nd last year, when you returned home drunk. You argued with your wife, Sharon, which caused the four young children to wake up screaming. You threw a knife at your wife. You had a second knife taken from you. You then armed yourself with a third kitchen knife, with a blade some eight inches long, and you used that knife to stab your brother-in-law twice. One of those blows severed an artery, so that he suffered severe haemorrhage, resulting in his death.”
7. The trial judge duly recommended a minimum period of 14 years, commenting:
“Mitigating Features:
1. Excessive use of force in self-defence
2. No intent to kill
3. No Premeditation
Aggravating Features:
1. Use of a dangerous  weapon
2. Not Guilty Plea”
8. The Lord Chief Justice agreed with this recommendation.
9. In terms of schedule 21, the defendant was aged over 18 when he committed the offence and the case does not fall within paragraphs 4(1) or 5(1). It follows that the appropriate starting point in determining the minimum period is 15 years. I regard the use by the defendant of knives as an aggravating feature. This is not specifically identified in the list of aggravating factors in paragraph 10 of schedule 21. However, it is clear that paragraph 10 is not an exhaustive list of aggravating factors. The use of not just one but a total of three knives substantially increases the seriousness of this offence. There is a further factor listed in paragraph 10 which applies in the present case. This is that the victim did not die immediately, and thus the defendant’s conduct caused mental and physical suffering - albeit for a short period. The trial judge in his report to the Home Secretary identified the not guilty plea an aggravating factor. The position under schedule 21 is different in this regard: a not guilty plea does not aggravate an offence, although a plea of guilty may be a mitigating factor. Accordingly I pay no regard to the fact that the defendant pleaded not guilty.
10. As to mitigating factors, I do not accept that there was any element of provocation or self defence: this defendant was in a drunken state, behaving in a highly dangerous manner with a knife, and the deceased was attempting to disarm him. The defendant was 28 years of age at the time of the offence. This does not in my view amount to any form of mitigation: he was a mature adult. There are, however, substantial mitigating features in other respects. There was no premeditation. The defendant’s intention was to cause serious injury rather than to kill. The defendant accepted responsibility from the outset, and feels genuine remorse. He should in my view be treated as a man of good character. I consider that these mitigating factors balance the aggravating factors identified earlier. This conclusion would have led me to set the minimum term at 15 years. However, by paragraph 8(a) of schedule 22 the minimum term may not be greater than that, which under the practice followed by the Secretary of State before December 2002, the Secretary of State would have been likely to notify. The best guide to this is the letter sent to Judges by Lord Bingham CJ on 10 February 1997. Taking a starting point of 14 years, I believe that Lord Bingham’s guidance would have led to the conclusion that aggravating and mitigating factors balanced each other. Accordingly, I consider that the Secretary of State would have been likely to have notified a term of 14 years as recommended by the trial judge and the Lord Chief Justice. It follows that I must come down to a minimum term of 14 years for that reason. I turn to consider what, if any, further deduction from that figure is appropriate.
11. I am required by s 269(3) of the Criminal Justice Act 2003 to take account of the effect of any direction which would have been given under s 240 (crediting periods of remanding custody) if the defendant had been sentenced to a term of imprisonment. In my view there is no reason why the time spent by the defendant in custody on remand should not count towards the minimum period to be served by the defendant. In order to produce that result, it is necessary to deduct it from the otherwise appropriate minimum term.
12. Accordingly, the specified period is one of 14 years reduced by 9 months and 10 days.


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