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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 995 (QB)

Case No: 2004/512/MTS

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 17/05/2007

Before :

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Between :

 Regina Claimant
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Mr D A Turner QC (instructed by Crown Prosecution Service ) for the Crown
Mr S V Riorden QC (instructed by Davison Flynn Boscoe & Partners) for the Defendant

Hearing dates: 4th TO 7th August 2003
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Approved Judgment
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.



Mrs Justice Rafferty :
1. Leon Sean O’Toole born on 26th March 1984 was on 7th August 2003 in the Crown Court sitting at Liverpool was unanimously convicted of the murder on 22nd February 2003 of Neil Ferguson.  HHJ Roberts sentenced him to life imprisonment with a minimum term of 12 years.

2. The defendant has not been notified of a minimum term set by the SSHD and his case has been referred to the High Court under S 269 Criminal Justice Act 2003.    Under S 269(2) a term set must not exceed that which in the opinion of the court the SSHD would have been likely to set in the practice adopted before December 2002.  The minimum term is that period of years which the defendant must spend in custody before he may be considered by the Parole Board for early release.  Even if the Parole Board should decide upon an early release the defendant will for the rest of his life remain on licence, vulnerable to recall at any stage.

3. S 269(3) obliges the court to take account of the seriousness of the offence and of the effect of credit for time spent in custody on remand (S 240).  In considering the seriousness of the offence the court must have regard to the general principles set out in Schedule 21 of the Act, those applicable to defendants sentenced after its commencement date, 18th December 2003, to any relevant guidelines, and to any recommendation by the Lord Chief Justice and/or the sentencing judge as to the minimum term.

4. This murder having been committed after 31st May 2002 but before 18th December 2003 the court applies the Practice Direction of 31st May 2002 as contained in paragraphs IV.49.23-33 of the Practice Direction issued 29th July 2004.

5. That guidance replaced the normal single tariff of 14 years by substituting a higher (16) and a normal (12) starting point.  These are emphatically no more than starting points and must then be increased or reduced because of aggravating or mitigating factors such as those referred to in the Practice Direction.

6. The starting point of 12 years normally involves the killing of an adult arising from a quarrel or loss of temper between two people known to each other.  Exceptionally it may be reduced if the defendant's culpability is significantly reduced for example since the case neared the borderline between murder and manslaughter, or the defendant suffered a mental disorder or disability which lowered the degree of his responsibility or he was in a non-legal sense provoked or overreacted in self-defence or his was a mercy killing.  Such factors could justify a reduction to between 8 and 9 years.

7. The 16 year starting point will apply when the defendant's culpability was exceptionally high or the victim particularly vulnerable.  Features showing either or both include the killing being for gain in the course of a robbery or burglary, racially aggravated, or extensive and/or multiple injuries were inflicted before death, multiple murders.  The starting point may be variable either way, upward if for example the killing were planned, there were use of a firearm, that the defendant armed himself in advance, concealed the body, or, particularly if there is a background of domestic violence, when the murder was the culmination of a chronicle of cruel and violent behaviour over time, and in certain instances the defendant's having previous convictions.  The term may be mitigated by the intention having been to cause grievous bodily harm rather than to kill, by spontaneity rather than premeditation, age, clear remorse and a timely plea of guilty.
The Facts
8. The defendant admitted being in Birkenhead with others intent on taking cars and for that purpose had with him a knife.  As Ferguson and a friend Duggan were en route to the home of another, one of O’Toole’s friends called him and Duggan muppets.  Ferguson asked to whom they thought they were speaking.

9. The Crown’s case was that there was then a scuffle or an attack during which Ferguson was stabbed.  O’Toole and his two friends ran away as Ferguson collapsed to the pavement.

10. O’Toole gave evidence that he heard “muppets” shouted by he thought one of his friends and then another calling out to him that the Ferguson group was “kicking off”.  There was a physical confrontation between Ferguson and one of the O’Toole camp at the end of which Ferguson approached him O’Toole aggressively and inviting a fight.

11. Thereafter in an attempt to avoid blows and having forgotten that he held the knife in his hand he stabbed Ferguson to the heart albeit unaware of it at the time.

12. The issues for the jury were self –defence, and lack of intent so as to lead to a conviction for manslaughter.

13. The trial judge found there had been a “bit of a stand-off” between Ferguson and O’Toole’s friend and that O’Toole, in drink, deliberately stabbed Ferguson with the intent to cause him grievous bodily harm rather than to kill.

14. He found mitigating factors to be the less grave of the two intentions, his youth (18) and that the killing was not premeditated.  Aggravating features were the use of a knife and a previous conviction in 1999 for assaulting a police officer.  He recommended a minimum period of twelve years.

15. The current regime would mean a starting point of fifteen years aggravated and mitigated as above.  I consider that the SSHD would have adopted the recommendation of the trial judge.  I see no reason to depart from it and adopt it, taking a starting point of 12 years which when increased and decreased returns to the same figure.
16. O’Toole had spent 6 months and 5 days in custody awaiting trial so that the net minimum term is eleven years five months and twenty-five days.

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