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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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MTR/858/2004
Neutral Citation Number: [2005] EWHC 771 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2

Friday 22nd April 2005
 
B E F O R E:

MR JUSTICE RICHARDS
 
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APPLICATION BY JOHN MICHAEL NEWMAN FOR THE SETTING OF A
MINIMUM TERM PURSUANT TO SCHEDULE 22, PARAGRAPH 3 OF THE CRIMINAL JUSTICE ACT 2003
 
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Wordwave, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
 
- - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©

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MR JUSTICE RICHARDS
REASONS FOR DECISION:  


1. On 9 March 1995 at Hereford Crown Court, after a trial before Mr Justice Turner and a jury, the applicant was convicted of murder and of kidnapping.  He was sentenced to life imprisonment for the murder, with no separate penalty for the kidnapping.  He was subsequently notified by the Home Secretary that the minimum period which should be served before his release on licence was 13 years.
 
2. He has now applied under paragraph 3 of schedule 22 to the Criminal Justice Act 2003 for the court to determine his minimum term.  These are the reasons for my decision on that application.

3. The applicant was 61 years of age at the time of his trial and conviction.  He is now aged 71. The circumstances of the offence, as set out in the trial judge’s report to the Home Secretary, were as follows.

 "John Michael Newman between the 12th and 15th September 1993 murdered Alwyn Charles Baker and kidnapped Christine Bond.  The victim was shot at point blank range in the back with a 12 bore shotgun  The defendant had known Christine Bond about three to four years before September 1993.  They had lived together and had formed a relationship.  This ended some months before the fatality although they continued to live together.  As the relationship with the defendant was over Christine Bond placed an advertisement in the personal column of a magazine.  One of those who responded was the deceased.  They started to go out together, Christine Bond did not at first inform the defendant.

 On the 8th September 1993 after a day out with the deceased, Mrs Bond returned to the house she was sharing with the defendant at 1.30 am and found that she had been locked out.  She returned to her car outside the house, until the defendant dragged her out shouting ‘You’ve been out with him’, ripped her clothing and dragged her into the house and up into his bedroom and onto the bed where he prevented her from leaving the room.  He told her he loved her then took out a gun case and asked her if she was going to pull the trigger and told her that he could not live without her. 

 When the defendant left for work that day, Mrs Bond decided herself to leave.  She made contact with the deceased and arranged to go and stay at his home.  On his return from work, the defendant realised that Mrs Bond had left and set out to find her.  The defendant already knew the deceased’s address and rightly concluded that that was where he would find not only Christine Bond, but also the deceased. 

 During that evening the defendant drove to the address of the deceased on a number of occasions, finally seeing movement inside the house.  He then approached the front door of the house with a loaded shotgun, he held spare cartridges and was a proficient shot.  The defendant entered the house by breaking a hole in the glass panel of the front door.  Mrs Bond hid.  She then heard two bangs followed by words like ‘That’s got rid of you you bastard’. The defendant discovered Mrs Bond in a shower cubicle and told her that he had proved how much he loved her as he dragged her through the house. She saw blood on the floor and smoke coming from the barrels of the shotgun which the defendant proceeded to reload.  The defendant forced her to climb through the hole in the front door by punching her in the face. Mrs Bond was pushed up the drive to the defendant’s car, the gun was placed in the boot. 

 The defendant then drove to his sister’s home where they arrived at about 2 am. The police were called. The defendant’s immediate reaction to this was to say ‘You’ll want the gun, it’s in the car’ and ‘I think I’ve killed someone’."

4. The applicant did not and still does not accept some features of that account, but in my view there is no basis for going behind the summary prepared by the trial judge after hearing all the evidence at the trial.  In any event, to the extent that the applicant takes issue with the trial judge’s report, the differences do not materially affect my decision as to the minimum term

5. The issues at trial included defences of accident, lack of intent, provocation and diminished responsibility. The trial judge observed in his report that the choice with regard to the applicant’s mental state lay between (i) depression and anxiety of acute onset and (ii) a simple revenge killing motivated by jealousy; and that the jury were satisfied as to the latter.

6. In determining the minimum period to be served by the applicant, I have directed myself by reference to the provisions of schedule 22 to the 2003 Act, in particular paragraphs 2-4.  In assessing the seriousness of the offence I am required to have regard to the general principles set out in schedule 21 and to the recommendations made to the Secretary of State by the trial judge and the Lord Chief Justice as to the minimum term to be served. 

7. I have taken into account the Home Office’s file (including the report of the trial judge and previous representations made on the applicant’s behalf), together with further detailed and helpful representations made on his behalf in June 2004.  The applicant’s solicitors have asked for an oral hearing in this matter (see R (Hammond) v. Secretary of State for the Home Department [2004] EWHC 2753 (Admin)).  In my judgment there is nothing in the circumstances of the case to justify that exceptional course.  The applicant's representations can be considered fully and fairly on the papers.

8. The trial judge recommended a minimum period of 12 years in view of the applicant’s age, stating that had the applicant been a younger man he would have recommended 16 years.  The Lord Chief Justice was of the view that 14 years would be the appropriate term. The term notified by the Home Secretary was, as I have said, 13 years.

9. In terms of schedule 21, this offence is one to which the 25 year starting point (paragraph 5 of the schedule) would normally apply, since it was a murder involving the use of a firearm.  But having regard to the particular circumstances of the offence and the fact that the applicant, as a gamekeeper, had a legitimate reason for possession of the shotgun and held the necessary firearms certificates and licences, I am inclined to the view that the lower starting point of 15 years would be more appropriate in the particular circumstances.  On that basis, however, it is necessary to take account of the use of a firearm as an aggravating factor.  There was also a limited degree of premeditation in driving to the deceased’s house and entering the house with the loaded shotgun.

10. Mitigating factors include the fact that the applicant was under great mental and emotional strain as a result of the breakdown of the relationship and the discovery that Ms Bond had left him, albeit that the jury rejected the defences of provocation and diminished responsibility.  Account must also be taken of his age, which led the trial judge to recommend a minimum term well below that which he would have recommended in the case of a younger defendant. Further, the applicant had only one minor previous conviction, for common assault, and had previously lived a constructive and hardworking life, including long service in the army with an unblemished service record.

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11. The applicant has consistently denied that he had any intention to kill, but he has expressed remorse for the killing itself and its impact on the family of the deceased and on Ms Boyd.  He wishes that he had acted differently and does not attempt to justify his actions.
 
12. Taking everything into account, I would be minded to set a minimum term of 14-15 years, subject to consideration of further deductions for any exceptional progress in prison and for time spent in custody on remand prior to sentence.  Since that figure is higher than the 13 years notified to the applicant by the Home Secretary, and paragraph 3(1)(a) of schedule 22 requires that the minimum term specified by me must not be greater than the notified minimum term, it follows that I must come down to the notified minimum term of 13 years.  I turn to consider what, if any, further deductions from that figure are appropriate.

13. The applicant’s representations rely on his conduct since conviction.  Exceptional progress in prison can be taken into account by the court in determining the appropriate minimum term (see Cole and others v. Secretary of State for the Home Department [2003] EWHC 1789, paragraph 88). The court in Cole accepted the approach adopted by the then Home Secretary towards the assessment of exceptional progress.  I think it right to be guided by the same considerations, which seem to me to be sensible. In summary, exceptional progress requires something over and above the good progress that is expected of all mandatory life sentence prisoners.  It should be for a lengthy period and include an element of doing good works for the benefit of others, such as working as a listener. 

14. In August 2001 the Home Secretary rejected representations that the applicant's tariff should be reduced on grounds of exceptional progress, taking the view that the applicant's progress had not reached the threshold that would justify such a reduction. 

15. It is submitted on the applicant's behalf that his behaviour in prison has been exemplary.  He has participated enthusiastically and constructively in offence-related coursework and has successfully completed numerous courses.  He has been a model prisoner and has engaged with the Prison Service and professionals within the system to address issues relating to his offending behaviour and the risk of future offending.  He has been a category D prisoner since October 2003, working as a visits orderly and, for part of the week, at a local charity shop.

16. I have considered those submissions and the supporting material (including more recent reports on the applicant in addition to those available at the time of the Home Secretary's decision in August 2001).  In my judgment the applicant's behaviour, though much to be commended, does not come within the category of exceptional progress so as to justify a deduction from the otherwise appropriate minimum term.

17. As to the time spent in custody on remand prior to sentence, I am required to take that into account by virtue of paragraph 4(1)(b) of schedule 22.  In my view there is no reason why it should not count towards the minimum period to be served by the applicant.  In order to produce that result, it is necessary to deduct it from the otherwise appropriate minimum term.
 
18. Accordingly, the specified period is one of 13 years less the 17 months 23 days spent in custody on remand.
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