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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: [2008] EWHC 274 (QB)

Case No: 2006/61/MTR
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 29/02/2008

Before :

THE HONOURABLE MRS JUSTICE COX DBE
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AUSTIN BERNARD ROGERSON

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SETTING OF MINIMUM TERM
SCHEDULE 22 PARA 3 CRIMINAL JUSTICE ACT 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.


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THE HONOURABLE MRS JUSTICE COX DBE


 
Mrs. Justice Cox DBE :

DECISION
1. The early release provisions are to apply to this Applicant as soon as he has served a term of 15 years’ imprisonment minus 7 months and 19 days, namely the period spent in custody on remand before conviction and sentence.
REASONS FOR DECISION
2. On 29th March 1996 at the Lewes Crown Court before Mr. Justice Keene and a jury, Austin Rogerson (the Applicant), whose date of birth is 6th August 1959, was convicted of the murder of Laura Rodrigues-Olle in early August 1995.  He was sentenced on the same date to life imprisonment.
3. On 2nd April 1996 Keene J. recommended to the Home Secretary that the actual length of detention necessary to meet the requirements of retribution and general deterrence for this offence was 15 years.  On 14th April 1996 the then Lord Chief Justice, Lord Taylor CJ, agreed with the trial judge’s recommendation.  Subsequently, on 11th December 1996, the Home Secretary set the minimum term to be served at 15 years, in line with the recommendations of the judiciary, and notified the Applicant accordingly.  He has now applied to the High Court for a review of the minimum term notified.
4. Solicitors have submitted written representations on the Applicant’s behalf, together with a number of documents, which refer to various behavioural and educational courses completed by the Applicant whilst in prison and provide evaluations and assessments of his progress in custody.  There is no statement from any member of the victim’s family.
5. The Applicant’s solicitors have applied for an oral hearing in respect of the minimum term to be set.  The grounds relied upon are that I need to hear oral representations as to the progress he has made whilst in custody and the changes in his circumstances.  Reference is also made to the need for fairness and to Articles 6 and 14 of the European Convention on Human Rights.
6. However, in the case of Hammond [2004] EWCH (Admin) 2753, the Divisional Court concluded that cases where oral representations may be required will be rare and that the decision as to the minimum term will be made without an oral hearing save in rare and exceptional circumstances, where the judge considers a hearing to be appropriate.
7. In the present case it is not suggested that oral evidence is required.  The oral representations requested go essentially to the Applicant’s progress in custody and as to the effect of the relevant Practice Direction and the case of R v Sullivan [2004] EWCA Crim 1762.  However, the principles to be applied in setting the term are now clear and, in respect of the Applicant’s progress and the various matters referred to in the representations, I have ample material before me to enable me to form a view without hearing oral submissions.  In my judgment there are no exceptional circumstances so as to require an oral hearing to be held in this case. I therefore refuse the application and shall determine the matter on the papers.
8. I have considered carefully the written representations and all the reports referred to above.  I have had regard, in addition, to the report of the trial judge and the recommendation of the then Lord Chief Justice.  Pursuant to section 269 of the Criminal Justice Act 2003 and Schedule 22, in considering the seriousness of this offence I have had regard to the general principles set out in Schedule 21, and to the effect of credit for the time that the Applicant spent in custody on remand.  Pursuant to Schedule 22 (3) (1) (a) the minimum term set on review must not be greater than the term of which the Applicant was notified by the Home Secretary.
9. The relevant facts are these.  The Applicant lived in a top floor flat opposite the flat where the victim lived.  The victim was a sex worker of Spanish nationality and the prosecution’s case was that the Applicant, an unmarried man then aged 35, had moved into the top floor flat because it had a view of the victim’s flat.
10. Late one evening between 1st and 4th August 1995 the Applicant went to the victim’s flat.  The trial judge stated in his report that precisely what happened in her flat is not known.  The Applicant denied any involvement in the offence and his defence was alibi.  The sole issue at trial was whether the murder was committed by the Applicant.  By their unanimous verdict the jury, having heard all the evidence, were sure that it was.
11. The trial judge’s description of the facts is as follows, and there is no dispute as to this description in the written representations submitted on the Applicant’s behalf.
“… it seems that he initially attacked her with a knife in the entrance to her bedroom, before pushing her face down onto the bed and cutting her throat literally from ear to ear.  This was a particularly savage wound, inflicted by a series of cutting or sawing movements, severing her larynx and gullet and exposing the front of her spine.  Then he dragged her onto the floor and stabbed her in the back and neck.  She received a total of about 20 cuts or wounds, though some of these formed part of the series of cuts to the throat.  Death resulted from loss of blood.
“It is unclear whether there was any deliberate planning of this killing.  It seems likely that the murder weapon (which was never found) was a steak knife already in the victim’s flat.
“After the attack, the defendant went home, cleaned up and sought to establish an alibi.”

12. The Applicant had two convictions for violence in his previous record.  One, in 1977, was an assault occasioning ABH upon a girl of 16, whom he attacked from behind and dragged to the ground.  No weapon was involved.  In 1985 he received six months’ imprisonment for assault occasioning ABH after striking a police officer in the face with a milk bottle.
13. After the trial and having read the psychiatric reports, which were included amongst my papers, the trial judge observed at paragraph 9 as follows:
“I have formed the view that this defendant is a very dangerous man, especially towards women.  There are two psychiatric reports so far available on him.   In one of them, he speaks of hating prostitutes.  The prison psychiatric report comments that ‘his manner with females is such that almost all our female staff (including very experienced prison officers) feel uneasy in his presence.’  It refers also to him having had ‘an uncontrollable urge’ at the time of the 1977 assault on the girl of 16.  The psychiatric report prepared for the Defence refers to the strong impression that he was demonstrating mental abnormality, but neither psychiatrist was able to come to a firm diagnosis. 
“His manner in the witness box was certainly abnormal.  His description of finding the victim’s body (his version of events) was detached and devoid of emotion.  I have already described the horrific nature of the wounds inflicted by him on the victim.
“When all this is added together, it presents the picture of a man whose mental state will need to be very carefully monitored in prison.  The greatest care will be needed before any decision to release him is made.”

14. The Lord Chief Justice agreed not only with the trial judge’s recommendation but also with these observations.
15. In my judgment the case does not fall within either paragraph 4(1) or 5(1) of Schedule 21 to the 2003 Act.  Thus, as the Applicant’s solicitors contend, the starting point, if the Applicant had been convicted after the 18th December 2003, would be a minimum term of 15 years.
16. None of the statutory aggravating features applies here.  However, the nature and brutality of this attack and the use of a knife to inflict particularly savage wounds upon the victim are in my view aggravating factors in this case.  In view of the defence put forward at trial the extent to which this crime was pre-meditated, if it was, is unclear.  The trial judge considered it likely that the murder weapon was a steak knife already in the victim’s flat and I shall therefore make some allowance for a lack of pre-meditation as a mitigating feature.  I do not consider however that there is any material to support the solicitors’ representations, made at this stage for the first time, that the Applicant lost control and killed the victim, believing her to have stolen £200 from his wallet; and that he was therefore “provoked” in the non-legal sense.  Nor do I consider there to be any evidence of genuine remorse on his part.
17. The remaining representations relate to the Applicant’s good progress in prison, to his good behaviour, and to a reduction in the level of risk posed by him.  I have seen the references referred to and I accept that they present an encouraging picture for this Applicant.  They do not, however, come anywhere near to showing the highly exceptional progress which must be shown, in order for progress in custody to result in a reduction of the appropriate minimum term.
18. Having regard to all these matters, I am entirely satisfied that under the present sentencing structure the Applicant would have received a minimum term in excess of 15 years.
19. I am not therefore persuaded that the 15 year minimum term imposed should be reduced.  In my judgment it is an entirely appropriate term in the circumstances.  I will however order that the period spent in custody on remand before conviction and sentence should be subtracted from that term in order to give the minimum term which must be served by this Applicant before the early release provisions apply.
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