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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 1865 (QB)

Case No: 2004/745/MTS

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 21/08/2007

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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.


(Setting of Minimum Term Schedule 22 Criminal Justice Act 2003)


The Honourable Mr Justice Treacy :
1. This Defendant is Kevin Ernest Smith.  His date of birth is 20 January 1961. He was tried by me and a jury at Sheffield Crown Court.  He was convicted of murder on 24 July 2003. 
2. I sentenced him on the following day.  The sentence was one of Life Imprisonment.  In due course I recommended 18 years as the minimum term. As at that stage arrangements for fixing a minimum term in murder cases were at a transitional stage, the papers were not put to the Lord Chief Justice for recommendation from him.
3. The offence was committed on 1 January 2003.  Tried with Mr Smith was a man named Craig Allen who was acquitted.  Another co-Defendant, Michael Ullah had pleaded guilty to the murder. 
4. The victim in the case, Lester Divers was murdered by being shot outside his home at point blank range with a sawn-off shotgun which had been illegally acquired and shortened by Ullah.  Lester Divers was the leader or at least a very prominent member of a Sheffield criminal gang dealing in hard drugs.  Craig Allen was the leader of a rival gang. 
5. It is plain that what occurred was in the context of some sort of “turf war” between the two rival gangs.  There was material which showed that Divers’ gang, had in the weeks and months prior to Divers’ murder, been conducting a campaign of violence and extortion towards other members of the criminal fraternity in the Sheffield area. 
6. Smith was at the time on home leave from prison.   His role in the matter was to be present at the scene of the shooting and to drive Ullah away from the scene after the murder had taken place.  Smith was a fully willing participant in this execution style killing of a rival drug gang member.  He was fully aware of the nature of the planned offence.  He intended the venture to result in death.  Smith contested the case.  He gave evidence and, in my judgment, lied repeatedly in the witness box.  He showed absolutely no remorse or emotion for what had happened. 
7. Smith was not the organiser or financier of the plan.  He had not obtained the firearm- Ullah had obtained that – but he was a person who carried out his role in the matter with full knowledge and entirely without conscience.  His background is one of habitual criminality over many years.  He has spent very little time at liberty – less than 8 months since 1995.  His record shows involvement in the world of hard drug supply.  He received a 5½ year sentence in June 1996.  He received a 6 year sentence to run consecutively imposed in November 1999.  He was still serving those sentences at the time this murder was committed.  Having played his part in the murder he returned to prison from home leave a couple of days later.
8. The offence was premeditated and well planned.  Although Smith was in custody until 2 days prior to the murder, he must either have agreed to his role in advance of his release or agreed without compunction very shortly after his release.  Whichever version of those facts is correct, it demonstrates that Smith needed little bidding to join in this most serious of crimes and, as already stated, he embarked upon it with full knowledge of what was to happen.  There are no medical or psychiatric issues in Smith’s case although I formed the view that he was of lesser intelligence than Allen or Ullah.
9. Mr Smith has not requested an Oral Hearing but I have considered written representations made on his behalf by Howard and Co Solicitors, together with annexed prison reports, including written submissions made as late as 20 August 2007.  The concluding paragraph of one of those submissions was in these terms:
“The Defendant accepts that a lengthy custodial term is inevitable.  Taking into account the Defendant’s personal circumstances, his upbringing and the comments of the trial judge, the Defendant would respectfully ask that the minimum term be set at a period in keeping with that suggested by the trial judge.”
10. The reference to personal circumstances includes reference to the fact that this Defendant has spent very little time at liberty in his adult life with the result that he has little or no experience of normal family life.  The submissions realistically acknowledge that the Defendant appreciates that he has to accept the consequences of choices which he had made over the years, resulting in his current situation.  The victim’s family have been given the opportunity to provide a statement for consideration.  There has been no response from them. 
11. The aggravating features of this case are that this was an execution style killing with a firearm.  It is to be viewed in the context of a dispute between rival gangs in the world of hard drugs supply.  It was an offence which was premeditated.  That premeditation, in my judgment, includes Kevin Smith, who, even on the view most favourable to him, will have been aware significantly in advance of what was planned.  Mr Smith’s personal position is aggravated by the fact of his habitual criminality.  There is scant mitigation other than the fact that Mr Smith did not personally pull the trigger.  Given his role, that cannot carry much weight.
12. Since this offence was committed prior to the 18 December 2003, the transitional provisions which are to be found in Schedule 22 of the Criminal Justice Act 2003 apply.  The practical effect of those provisions is explained in the decision of Sullivan & Ors (2004) EWCA Crim 1762.  Had this offence been committed on or after the 18 December 2003, a starting point of 30 years as the minimum term would have been appropriate. 
13. However, since this offence was committed prior to the change in the law, this Defendant is not to be dealt with in accordance with modern sentencing practice.  He should not be dealt with more harshly than he would have been prior to the coming into force of the Act.  In his case I have regard to and apply the Practice Statement handed down by Lord Woolf Chief Justice on 31 May 2002.  This case attracts the higher starting point of 15 to 16 years as, in reality it was a professional killing in the context of a dispute between serious criminal gangs.  The offence is aggravated by the use of a firearm which had been obtained in advance, and the element of planning to which this Defendant must have been privy in order to participate.  As previously noted, the appellant’s record is also an aggravating feature. 
14. These features in my judgment call for an upward adjustment of the starting point.  In those circumstances, I fix the minimum term to be served before Mr Smith can be considered for release by the Parole Board, at 18 years.  In so doing, I find wholly absent mitigating features such as a guilty plea or remorse.  Since Mr Smith was serving another custodial sentence during the time he was awaiting his trial, there is no allowance to be made pursuant to s.240 of the Criminal Justice Act 2003. 
15. The minimum term is set at 18 years.

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