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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:  2004/548/MTS
Neutral Citation Number:  [2007] EWHC 2816 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION


Royal Courts of Justice
Strand, London, WC2A 2LL

3 December 2007

Before :

MR JUSTICE KEITH

Between :

The Queen

- and -

Kevin Martin Heron


Approved Judgment

 

 

Introduction

1. On 20 December 2002 at Newcastle-upon-Tyne Crown Court, the defendant, Kevin Heron, was sentenced to life imprisonment for the murder of Philip Wood.   He had pleaded guilty.   The trial judge, Hooper J, recommended that the defendant should serve 12 years in custody before he could be considered for release on licence.  
2. Schedule 22 to the Criminal Justice Act 2003 (“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 the defendant should serve before his release on licence could be considered, or that he did not intend that the defendant should ever be released on licence.   Accordingly, the Home Secretary referred the defendant’s 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 – in effect, an order that the defendant should never be released on licence, or an order that his release on licence can be considered by the Parole Board after he has served a specified time in custody (“the minimum term”).   Section 270(1) of the Act requires me to give the reasons for such order as I make in ordinary language.  
The facts
3. Philip Wood and the defendant were alcoholics.   Mr Wood had been friendly with the defendant, and had been living with the defendant and the defendant’s girlfriend, Susan Day, for about six months, moving into a flat of his own about a month before his death.   Although he was six feet tall, he was very emaciated and weighed only 45 kgs.   He was living in what the trial judge described as “wretched conditions” in a flat which contained no furniture.   There was some evidence that the defendant had bullied Mr Wood in the past and injured him.   Indeed, the defendant has two previous convictions for assault occasioning actual bodily harm.   In 1985, he had butted someone in the head during an argument outside a pub.   In 1991, he and another man had kicked and punched two other people following an argument.   He had been fined on the first occasion and conditionally discharged on the second.   However, the defendant did not accept that he had assaulted Mr Wood in the past.  

4. The murder took place on 6 April 2002.   Mr Wood was then aged 40 and the defendant 42.   The defendant had asked Susan Day’s son, who was 16 years old at the time, and another man to collect a pair of trainers from Mr Wood which belonged to the defendant.   They returned with the trainers soiled with faeces.   That angered the defendant, and he went with the other two to Mr Wood’s flat to give him “a beating”.   Susan Day’s son went into the flat with the defendant, while the other man stayed outside.   Once inside, the defendant subjected Mr Wood to a prolonged and extremely violent attack.   Mr Wood was hit many times on his face, head and body.   Eventually he collapsed, but the defendant continued the attack on him, kicking and stamping on him.   The right side of his chest caved in and he had multiple fractures to his ribs.   The defendant then left the scene, and showed no remorse at the time.   However, the trial judge noted his subsequent regret for what he had done.  

The appropriate minimum term
5. The minimum term which the defendant should serve must reflect the seriousness of his offence.   That involves choosing the appropriate starting point, and then taking into account any aggravating or mitigating factors to the extent that they were not allowed for in the choice of the appropriate starting point.  
6. Under the current law, the choice of the appropriate starting point is limited to a whole life order, 30 years or 15 years.   All murders involve the tragic loss of life, but the murder of Mr Wood did not come within any of the examples given in Schedule 21 to the Act of cases for which either a whole life order or a starting point of 30 years would normally be appropriate.   The appropriate starting point for the minimum term in the defendant’s case is therefore 15 years.  
7. The factors which aggravated the defendant’s murder of Mr Wood were (a) the prolonged and very brutal nature of the attack, (b) the fact that the attack was premeditated, and (c) the presence of a 16 year old boy at the time.      The mitigating factors were (a) the fact that although the attack was premeditated, the killing of Mr Wood was not, (b) the defendant’s plea of guilty, and (c) to a lesser extent, the regret which the defendant subsequently expressed.  
8. Whatever the minimum term which would now be set under the current law, the minimum term which I must set may not be any longer than the minimum term which would have been set by the Home Secretary under the practice which the Home Secretary would have followed at the time.   Recommendations by the trial judge were then based on the Practice Statement (Crime: Life Sentences) [2002] 1 WLR 1789 handed down on 31 May 2002.   The Practice Statement permitted the court to take different starting points depending on the circumstances of the case.   Cases falling within the higher starting point of 15/16 years’ imprisonment would be characterised by a feature which made the crime especially serious, such as gratuitous violence, and extensive or multiple injuries inflicted on the victim prior to his death.   Mitigating factors which might justify a reduction in the starting point include an intention to cause grievous bodily harm, rather than to kill, a timely plea of guilty, and clear evidence of remorse or contrition.   In all the circumstances of the case, I have concluded that the appropriate minimum term under the regime governed by the Practice Statement would have been 12 years’ imprisonment.   It would not be any less under the current regime.  
9. In Sullivan [2004] EWHC Crim. 1762, the Lord Chief Justice said that the Home Secretary fixed the minimum term in accordance with the recommendation of the trial judge and the Lord Chief Justice “in the great majority of cases”.   There is nothing in this case which suggests that this would have been one of those exceptional cases in which the Home Secretary would have differed from the view which the trial judge expressed.   I conclude therefore that the minimum term which would have been set by the Home Secretary under the practice which he would have followed at the time would have been 12 years’ imprisonment.  
10. Finally, from the minimum term of 12 years’ imprisonment which the defendant must serve, there must be deducted the time which he spent on remand in custody prior to sentence.   That period was 8 months and 9 days.  
Conclusion
11. I therefore order that the early release provisions in sections 28(5)-(8) of the Crime (Sentence) Act 1997 apply to the defendant as soon as he has served 11 years 3 months and 21 days of his sentence.   That is the minimum term which I set for his case.  


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