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High Court setting of minimum terms for mandatory life sentences under the Criminal Justice Act 2003



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Neutral Citation Number: [2006] EWHC 3037 (QB)

Case No: 2004/589/MTS
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 19/12/2006

Before :

THE HONOURABLE MR JUSTICE MACKAY
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Between :

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 Steven Gander 

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Hearing dates: 27 Sep 2002
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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 MR JUSTICE MACKAY


 
Mr Justice Mackay:
 
1. Steven Gander is an existing prisoner subject to a mandatory life sentence passed on him on 27th September 2002 by his Honour Judge Richard Brown.  This followed his plea of guilty to the offence of murder.  The trial judge recommended a minimum term of fourteen years and the Lord Chief  Justice recommended thirteen years to reflect credit for giving himself up to the police as well as his plea of guilty.
2. The victim in this case was the former partner of the defendant 21 year old Saffra Coleman. The defendant and the deceased had a daughter Layla, then about 18 months old.  The relationship between the defendant and the deceased had been stormy and violent as a result of which she had left him, taking Layla with her, and had initially sought refuge in a women’s hostel.  By the time of her murder she was living at an address in Eastbourne with a new boyfriend.
3. Difficulties had arisen over contact between the defendant and his daughter over the short period of their separation. On the day of the murder he had gone around to Saffra Coleman’s address where she was alone with her daughter. He told the police that an argument had developed about the level of contact he could have with Layla.  In the course of that argument he hit her three times on the head with a claw hammer. She fell, and he took a length of rope from his pocket, wrapped it around her neck and strangled her.  He then left the house and made a suicidal gesture by taking paracetemol and aspirin claiming he intended to kill himself.  Within twelve hours he reported what he had done to the police and handed himself in.
4. An application has been made for an oral hearing of this matter to which I will have to return later in this judgment.
5. The defendant had numerous previous convictions for low level  violence as well as a history of threatening and violent behaviour towards Saffra Coleman.  A psychiatric report prepared for the court diagnosed him as suffering from anti-social personality disorder and prone to impulsive acts.  The psychiatrist correctly poses the question as to whether this murder was truly to be described as impulsive and committed in the heat of passion, or something which was planned and prepared for.
6. In his recommendations at paragraph 9 the trial judge set out five aggravating features. One of these is controversial. He says “he had been armed with rope and hammer (albeit that he claims that the rope was for self harm and that the hammer just happened to be at the scene)”. Otherwise as it seem to me the aggravating features (a,b,c,e) are correctly stated and cannot be gainsaid.
7. The mitigating features identified, in my view correctly, by the judge were the fact that he gave himself up to the police within a very sort time of the killing, his plea of guilty and the possibility of some provocation in the non technical sense by some actual or perceived restriction on his access to Layla.
8. There is considerable evidence of the effect of this murder on the victim’s family.  A dignified and moving witness statement dated 16th October 2002 from Saffra’ mother points out that this is the second of her children to have suffered death as a result of murder and that she now is the full time carer of Layla, she having eight children under fifteen years living in her house to care for.  With the assistance of the victim contact scheme a further statement has been put in dated 27th October 2004.  This stresses the feelings of Layla's grandparents at the fact that, as it is put, the defendant “heartlessly killed Saffra in front of Layla when she was only 20 months old”. This is challenged on behalf of the defendant.  That challenge seems to me to be of a hair- splitting kind.  Whether or not Layla saw her mother killed is unclear, and I therefore propose to deal with the matter on the basis that she did not. That she was left alone uncared for in the flat with the corpse of her mother for some 7 seven hours is beyond doubt.  The further statement also points to the premeditated nature of the offence, as it is described, and the defendant’s background for violence but most of all the statement emphasises the as yet unknown impact of this murder on Layla when she grows up and learns about it.
9. As the psychiatrist Dr Lally rightly indicated the seriousness of this offence is greatly affected by determination of the issue as to whether any pre planning had been involved in it.  That question is itself brought into play by the fact that the defendant had with him the rope with which he killed the victim.  In mitigation his counsel put this matter rather  delicately (see transcript 4F-G) “he purchased a large number of pills and stole others; the purpose of that was to bring his own life to an end.  He acquired a piece of rope.  In part, the purpose of that was, I say perhaps melodramatically, perhaps not, as the means by which he could hang himself; in part, it may well have been an act of bravado.  Whatever, he had it with him for a number of days”.
10. There are a number of problems with the submission that the judge was not entitled to take as an aggravating feature the fact that he was armed with a rope.  It would be apparent from the words of his counsel that the position being adopted on the defendant’s behalf was at best an ambiguous one.
11. In my judgment the only way of determining the defendant’s culpability in this matter must include a finding that he took the rope with him to use it to kill his former partner if she continued in her then current opposition to the level of contact he was requiring.  Though he was to claim later in his interviews with the police that he had it with him to hang himself, if he really intended to end his own life he had an alternative means by which to do that (as he thought) namely the supply of pills he had accumulated and which indeed he did proceed to  use.  Secondly in his account to Dr Lally (paragraph 40) he categorically denied that he had the rope with him as a possible means of killing himself.  He gave a yet further account of its presence namely that he had it in his pocket from when he had cleaned the car two days before.  Thirdly there is the inherent likelihood of the matter.  Why else would he take this with him on this visit if not to use it for the purpose for which it was eventually used?
12. There is the secondary but associated question of the hammer. The defendant’s case is that he happened by chance to find the hammer in the flat and, on the spur of the moment, took it up and used it to hit his former partner.  There is no other evidence about the hammer.  All that can be said is that that account is in the circumstances of this case inherently unlikely.
13. It is therefore the case that the judge was right to approach his recommendation on the basis that was a premeditated murder and, indeed, I would add that it was the intention of the defendant to end Saffra Coleman’s life.  This therefore cannot be a matter to which the description of an impassive act or crime of passion can be attached.
14. I have considered whether an oral hearing, even a Newton hearing, is either necessary or appropriate in this case.  In my judgment it is not.  The basis on which an oral hearing is sought in the solicitor’s letter of the 12th January 2005 is that their submissions at paragraph B 4 and 5 of their written representations raise “novel” points of general public importance”.  Those paragraphs deal with the impact on this exercise on the timely guilty plea that was tended by the defendant.  Since the decision of the court of appeal in R v Last (2005) EWCA Crim106 the position is clear and well established.  It is appropriate for this court and lower courts to take into account the Sentencing Guidelines Council’s recommendation to reduce what would otherwise be the minimum term by one sixth as a maximum to reflect a plea of guilty. I do not consider that an oral hearing is needed in that regard.  Equally so far as the matters I have dealt with in paragraphs 9 – 13 above are concerned the trial judge was entitled to say what he said, and I am entitled to approach this matter on the basis I have set out above.
15. Were this matter being sentenced afresh under the provisions of schedule 21 of the Criminal Justice Act 2003 the starting point would have been one of fifteen years. That would have been significantly aggravated by the features correctly identified by the trial judge namely the defendants previous record for violence, his previous violence to the deceased, his threats made as to what he would do if she left him, the fact that he was armed with the rope and hammer, and the fact that the murder took place while the child was in the house and was left with the body of her dead mother. The starting point would therefore be increased in order to reflect those features to a figure in the region of twenty years.  Reducing that to reflect the plea of guilty and the other mitigating features which would result in a minimum term of sixteen and a half years.
16. However I have to give consideration to the likely recommendation that Secretary of State would have made at the end of 2002 had he proceeded so to do.  Given the date of this offence it is likely that he would have had regard to the recommendation of Lord Bingham Chief Justice in February 1997 to the effect that a starting point figure for the “average” murder was one of fourteen years. Under his criteria the execution of a planned killing called for a sentence more severe than the norm whereas a plea of guilty and non technical provocation operated so as to reduce the figure.
17.  Balancing the factors therefore that I have endeavoured to set out above I direct that the early release provisions shall apply to this life sentence but that the defendant should not be considered for release on parole until he has served a minimum term of fifteen years.  From that term the time spent in custody on remand namely 4 months 2 days, shall be deducted.


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