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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:[2009] EWHC 622 (QB)

Case No: 2004/989/MTR
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION


Royal Courts of Justice
Strand, London, WC2A 2LL


Date: 31/03/2009


Before:

THE HON MR JUSTICE FLAUX
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Between:

 Regina  
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 MICHAEL THOMAS ATTWOOLL 

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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

 

 

 

IN THE HIGH COURT OF JUSTICE   Case No: 2004/989/MTR
QUEEN’S BENCH DIVISION

Before

THE HONOURABLE MR JUSTICE FLAUX

 

IN THE MATTER OF AN APPLICATION BY MICHAEL THOMAS ATTWOOLL

Pursuant to Paragraph 3, Schedule 22 of the Criminal Justice Act, 2003.


JUDGMENT


1. On 10 June 1995, Michael Thomas Attwooll was convicted (with his co-defendant John William Roden) at Newport Crown Court before the Honourable Mr Justice Jowett of two offences of murder of Gerald Stevens and Christine Rees, committed in the early hours of 6 May 1994. He was sentenced to life imprisonment, with a recommendation by the trial judge made on 22 June 1995 that he should serve a minimum period of 20 years imprisonment before consideration for early release.  He had served 12 months and 28 days on remand prior to his trial.

2. On 26 June 1995, the Lord Chief Justice, Lord Taylor, agreed with the trial judge’s recommendation and recommended that the minimum period should be one of 20 years.

3. On 22 February 1999, the Home Secretary notified a minimum term of 25 years.

4. I am now asked to review the minimum term, pursuant to the provisions of paragraph 3 of Schedule 22 to the Criminal Justice Act 2003.

Facts of the Offence

5. The Defendant was 51 at the time of the offence. His co-defendant Roden was 29 and lived with the Defendant’s daughter. One of the victims, Gerard Stevens, was the defendant’s partner in a small taxi firm at Risca. The other victim, Christine Rees, was employed by the business as a driver. She and Stevens were having an affair which the applicant resented. The trial judge said in his report to the Home Secretary that the applicant also suspected Stevens of cheating on him and feared he might be ousted from the business. Notwithstanding that, as the trial judge said in his report: “there was no evidence of any strong motive which to ordinary eyes would have made murder seem an understandable solution to whatever problem there was”.

6. The two men carefully plotted how they would murder the two people, a plan which matured over a period of weeks. In the early hours of the morning of 6 May 1994, the applicant and Roden drove to the taxi office and attacked the two victims. Stevens was shot in the head. Christine Rees was slashed several times with a machete and then shot in the head. Stevens was shot a second time in the head and his face was cut with a machete.  The trial judge said in his report that Christine Rees was probably attacked initially with a machete because the .22 gun, converted from an air rifle, took time to reload.

7. The issue at trial was the identity of the murderers but the jury convicted both defendants of murder. The trial judge said that the applicant was the leader, which was reflected in a higher minimum term of 20 years recommended for him, as compared with 18 years for Roden. In his comments on the case generally and on the degree of dangerousness presented by the applicant, the judge said that the slight evidence of motive caused concern about his dangerousness. He also said that he would have recommended a longer minimum term than 20 years but for the applicant’s age.

8. Before the Home Secretary set the tariff, the applicant was invited to make written representations. He wrote a letter on 5 April 1998 maintaining his innocence and saying that his case was being investigated by the Criminal Cases Review Commission.

9. The Home Secretary set the tariff at 25 years and provided a written “Statement of Reasons for setting a higher tariff than recommended by the judiciary” in which he referred to the circumstances of the offence and stated that he did not consider that the tariff of 20 years was sufficient to satisfy the requirements of retribution and deterrence for the offence. He stated that he attached weight: (i) to the fact that the two men had carefully plotted the murder over a period of weeks, (ii) to the fact that two murders were involved and (iii) to the brutal way in which the murders were carried out, especially in the case of Christine Rees, where the trial judge had referred to what the two men had done as “butchery” and to her injuries as “quite appalling”.  The Home Secretary had also had regard to the trial judge’s comment about relative culpability, namely that the applicant was the leader.

 

 

 

Representations


10. There are written representations from Howells Solicitors LLP on behalf of the applicant received on 27 November 2006. In summary, these raised the following matters:
 

(1) That the applicant maintains his innocence and says that he had no motive. He says that although the affair between the victims was blatant, it had no effect on the taxi business. There was no independent evidence at trial to suggest a motive on the part of the applicant, other than the suggestion that the applicant mistakenly believed that Mr Stevens was robbing him. An auditor’s report not used at trial concluded there was no evidence of this. I should add that, although both defendants’ appeal against conviction was subsequently dismissed, the Court of Appeal accepted that the suggestion by the prosecution that the applicant was suspicious of Stevens’ financial dealings was not borne out by any evidence.

(2) That part of the investigation being conducted for the purposes of the presentation to the Criminal Cases Review Commission consisted of a preliminary report from a ballistics expert, since deceased, who cast doubts on whether the bullets recovered from the deceased were fired from the converted gun.

(3) That there was no evidence to support the trial judge’s statement in his report that the plan to murder had matured over a period of weeks. The applicant had not even been due to work on the night of the murders, but agreed to cover for another driver at short notice.

(4) The applicant had complied with the prison regime. He had completed various educational courses. Because he maintains his innocence, he cannot undertake direct offence related work.

(5) The tariff set by the Home Secretary of 25 years, being 5 years more than the minimum term recommended by the trial judge was excessive. The trial judge’s recommendation was correct.


11. The papers in the case were referred to the Crown Prosecution Service to enable the Crown to make representations, in accordance with the Practice Direction in A-G’s Reference No. 38 of 2008 (R v Wilson). Written representations in response to those of the applicant were received from the Crown Prosecution Service dated 29 October 2008. In summary those submissions are:

(1) That in the case of both defendants, paragraph 4 of Schedule 21 would be applicable (i.e. a “whole life” order), because of the fact that this was the murder of two persons and there was an element of sadistic conduct, in relation to which the Court was referred to passages in the summing up of the trial judge and the reports of the pathologist, Dr Bernard Knight.

(2) That even if this is not a paragraph 4 case, the same factors would make it a paragraph 5 case (starting point 30 years).

(3) That in any event a number of aggravating factors listed in paragraph 10 (in addition to those relevant under paragraphs 4 and 5) were present, including a significant degree of planning and pre-meditation and mental or physical suffering inflicted on the victims before death.

(4) Another aggravating factor not listed in paragraph 10 but relevant is the fact that the two defendants operated in a group or a gang.

 

12. In a letter from Howells Solicitors LLP of 5 December 2008 further representations were made on behalf of the applicant in response to those representations from the Crown Prosecution Service. In addition to reiterating the points raised in the first set of representations, the representations updated the position on the review by the Criminal Cases Review Commission. The cases of both defendants were referred back to the Court of Appeal for consideration under section 9 of the Criminal Appeal Act 1995. The appeal was heard by the full Court on 18 March 2008 and dismissed. However it is said that new evidence to which the solicitors were not privy before the appeal was listed had been obtained from the Crown Prosecution Service and that the solicitors were working towards a second application to the Criminal Cases Review Commission.

Considerations

13. In determining the shortest period the Defendant must serve before he may even be considered for release, I have to act in accordance with the Criminal Justice Act 2003.
 
14. By paragraph 4 (1)(a) of Schedule 22 of the 2003 Act, I must have regard to the seriousness of the offence, and, by paragraph 4(2) of the same Schedule, in considering the seriousness of the offence, I must have regard to the general principles set out in Schedule 21 of the Act and to the recommendations of the trial Judge and the Lord Chief Justice.

15. In addition to the seriousness of the offence, I must have regard to the length of the minimum term notified by the Home Secretary (paragraph 4(1)(c) of Schedule 22).

16. The general principles contained in Schedule 21 are those which indicate starting points relevant to offences of varying degrees of seriousness.  In the present case, there are two factors listed in paragraph 4 (2) (a) which might point to a whole life order being made if the applicant were being sentenced today, namely that two people were murdered and there was clearly an element of sadistic conduct, at least in relation to Christine Rees. Even if those factors did not lead the Court to make a whole life order they are relevant under paragraph 5 as well. Given those factors, plus the additional factor listed in paragraph 5 (2) of  use of a firearm in the murders, these cases are clearly ones in which, were the Court sentencing today, the starting point would be 30 years in relation to both defendants.

17. However, for the purposes of the present exercise, it is not necessary to decide whether if this applicant were being sentenced today, the Court would impose a whole life order or a minimum term using a starting point of 30 years. That is because, under paragraph 3 (1) (a) of Schedule 22 the minimum term which I set must not be greater than that notified by the Home Secretary, so that the minimum term I set cannot be greater than 25 years. However, what the provisions of paragraphs 4 and 5 of Schedule 21, which would be applicable to this case if the applicant were being sentenced today, do demonstrate is that, on any view, this is a case in which there is no basis whatsoever for a reduction in the minimum term set by the Home Secretary (subject to the question of time on remand to which I refer below).

18.  In the circumstances it is unnecessary to consider in detail the aggravating factors listed in paragraph 10 of Schedule 21, but I consider that the physical and mental suffering which particularly Ms Rees must have suffered before her death is an additional aggravating factor.


19. As for the mitigating factors listed in paragraph 11 of Schedule 21, in my judgment none of those is present in the present case, nor is it suggested that they apply. The representations put forward on behalf of the applicant focus on his continued assertion of his innocence and criticisms of the evidence at trial. Those matters are all wholly irrelevant to the determination I have to make, which is on the basis that the applicant was correctly convicted, all the more so since his appeal against conviction was dismissed last year.

20. Nothing much is made in the representations on his behalf concerning his progress in prison. His progress could not even begin to be described as “exceptional” so as justify a reduction in the minimum term.

21. These murders were sadistic and pre-meditated crimes involving the use of a firearm and a machete. The minimum term set by the Home Secretary of 25 years is amply justified and, were the Defendant being sentenced today, would be considerably higher. There is no reason to reduce the minimum term set, subject only to the question of time spent on remand.


Time served on remand

22. The applicant spent 12 months and 28 days on remand prior to his sentence.  Under paragraph 4(1) (b) of Schedule 22, I must also 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. Accordingly, the court takes account of any period that the applicant has spent in custody solely because he was committed to custody by an order of the court made in connection with proceedings relating to the murder. I am satisfied that in the present case I should have regard to the period spent on remand of 12 months and 28 days, which should count towards satisfaction of the applicant’s minimum term. 

Conclusion


23. Subject to one qualification, I see no reason for any reduction in the tariff notified by the Secretary of State of 25 years.  The qualification is that the 12 months and 28 days on remand must be deducted, reducing the period of 25 years to 23 years 11 months and 2 days. 

 

 

 

 

 


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