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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: 2004/41/MTS
Neutral Citation Number: [2006] EWHC 518 (QB)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL

17th March 2006

Before :

THE HONOURABLE MR JUSTICE PITCHERS
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Between :

 REGINA 
 - and - 
 SAM JOHN SPENCER BROWN 

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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No:  020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Judgment
As Approved by the Court

Crown copyright©

 

 
Mr Justice  Pitchers:
1. On 11 February 2000, the Defendant, then aged 20 years, was convicted of murder at the Crown Court at Lewes before His Honour Judge Brown who sentenced him custody for life.
2. After passing the sentence referred to above, but before the commencement of the Criminal Justice Act 2003, the trial judge made a report  to the Home Secretary, in accordance with the practice then in operation, recommending the proper length of term that ought to be served for the purposes of retribution and general deterrence. He stated his view that the proper length of detention for these purposes was 12 years.  The Lord Chief Justice recommended a period of 9 – 10 years.
3. The Act came into force on 18 December 2003. By then, the Home Secretary had not notified the Defendant either of the minimum period which he thought he should serve before his release on licence or that he did not intend that he should ever be released on licence.   Accordingly, the Home Secretary referred his case to the High Court under para. 6 of Schedule 22 to the Act for the making of an order under sections 269(2) or 269(4) of the Act.
4. On the 3rd May 1997 the victim (Richard Lewis, a 47 year old school teacher) was sitting alone at the bar of a public house in Shoreham. The defendant, then aged 17,  was in the pub, drinking and playing pool, and he began making provocative gestures at a young female customer. He was told by the landlady to "cool it". He then began to threaten the landlady with threats to smash the windows and that he would be back tomorrow to blow her head off. Mr Lewes made a comment to her "just leave him he'll blow himself out". The defendant then immediately attacked Mr Lewes with punches that knocked him to the ground and thereafter punches and kicks to his head and body. The defendant ran off and was later arrested.
5. Unfortunately Mr Lewes suffered from ankolising spondilitis which had had the effect of fusing together the cervical bones of his spinal cord. The effect upon him of blows to the head was to cause a fracture of the spinal cord at C7. This paralysed his legs and arms. He was taken to hospital for treatment but some four hours later had breathing problems which required a tracheotomy. He was unable to breathe for seven minutes and suffered from gross oxygen starvation to the brain. He never regained consciousness and died on the 17th January 1998 from pneumonia.
6. The defendant had appeared at Chichester Crown Court on the 28th October 1997 and pleaded guilty to causing grievous bodily harm with intent. He received a 10 year sentence. Following the death of Mr Lewis, the Attorney General gave his consent to a murder charge being brought against the defendant.
7. The sole issue at the trial was causation. The defence alleged that gross negligence by those treating Mr Lewis had been the sole significant cause of death and had amounted to a novus actus interveniens.  It was obvious from the evidence that there had been a degree of negligence by those involved with the care of Mr Lewis between his collection by ambulance and the respiratory arrest which occurred in the hospital some four hours later. It appeared that he had been treated as somebody with minor injuries and left without medical attention when in fact if the appropriate tests had been carried out by the Triage nurse, it would have been obvious that he was suffering from a broken neck. His ankolising spondilitis also meant that the application of a hard collar, which would have been entirely appropriate for a normal person, was totally inappropriate for somebody with his medical condition.  The application of the collar (by somebody who has never been identified) led to further kinking of the windpipe which then gave rise to breathing difficulties.  Experts called by both sides agreed that there were aspects of the medical care (or lack of it) which could be described as grossly negligent.
8. The aggravating factors in the case were that this was a totally unprovoked and vicious attack which included kicking the victim whilst he lay helpless on the ground.
9. The mitigating factors were the age of the Defendant at the time of the attack, the absence of an intention to kill and the contribution to the tragic death of Mr Lewis of the negligent medical treatment.
10. I have read and considered representations on behalf of the Defendant.  Mr Lewis’ family have indicated that they do not wish to make representations.
11. The very unusual feature of the case, namely that the Defendant had been sentenced for causing Mr Lewis grievous bodily harm with intent and had begun his sentence for it before the proceedings for murder had been instituted complicates the process of determining the minimum term in this case.  I have caused enquiries to be made as to the time which the Defendant spent on remand for murder.  The answer is that he was not remanded in custody for murder at all.  All his time in custody before receiving his life sentence was in respect of his earlier conviction for the s18 offence.  He is accordingly not entitled as of right to have any credit for time spent on remand prior to sentence.  However, as a matter of justice, he clearly must not serve longer in custody because he has been sentenced for two offences based upon the identical facts.
12. In my judgment, the proper way of dealing with this problem is to reduce the minimum term itself by the amount of time spent on remand for or serving a sentence for the earlier offence.  This is not the same as giving credit for time spent on remand but has the same effect.  There is a further complicating factor.  In reducing the trial judge’s recommended minimum term, Lord Bingham identified the earlier proceedings as a substantial mitigating factor.  He did not say what part of this mitigation was attributable to the fact that the Defendant had served time which would not count towards his minimum term for murder.  There being doubt, I must resolve that in the way most favourable to the Defendant although I take the higher of Lord Bingham’s two figures.   
13. Were the minimum term to be set in accordance with Schedule 21 of the Act, the starting point would have been 12 years as a minimum term.  That would already have taken account of the Defendant’s youth. That was the starting point taken by the trial judge but reduced by Lord Bingham to take account of the mitigating features.  This is thus, in my judgment, a case where calculation on each basis gives the same result and the term specified now is not longer than would have been specified at the time of the offence. 
14. I therefore specify a minimum term of 7 years 257 days i.e. 10  years minus time spent in custody for the earlier conviction with no deduction for time spent in custody for this offence because there was none.  Accordingly, I order that the early release provisions in sections 28(5) to (8) of the Crime (Sentences) Act 1997 apply to this Defendant as soon as he has served that period.


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