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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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Case No:  MTS / 42 / 2004
Neutral Citation Number:  [2006] EWHC 3255  (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION


Royal Courts of Justice
Strand, London, WC2A 2LL


Thursday 21 December  2006

 


Before:

MR JUSTICE PENRY-DAVEY

Between:

Regina

And

     Luisa BOLIVAR         Defendant

 
The Honourable Mr. Justice Penry-Davey :
1. This is an application by Luisa Bolivar for the setting of a minimum term pursuant to Schedule 22 paragraph 6 of the Criminal Justice Act 2003.
2. On 15 February 2000 after a trial that began on 11 October 1999 the applicant was convicted of murder and sentenced to life imprisonment. She was tried with Hernando Guevara-Jaramil and Hector Cedeno both of whom were also convicted of murder and sentenced to life imprisonment. All three defendants and the deceased were Colombian. The applicant was living with a man called Fernandez. On 8 January 1999 the deceased, a 16 year old called Castillo, ripped a gold chain from the neck of Fernandez during the course of a struggle. Thereafter the applicant and Fernandez determined to track him down and kill him. The applicant procured the killing of the deceased by her two co-defendants who were hired to kill the deceased; it was a contract killing. The deceased was taken out in a car. While Jaramil drove, Cedeno garrotted him from behind. The body was abandoned in an industrial rubbish bin. The applicant was the joint procurer of the murder with her lover Fernandez who left the country about an hour before the murder and has not returned. Jaramil and Cedeno were contract killers. The view of the trial judge was that there was no reason to distinguish between the relative culpability of the three defendants, each of whom had denied any complicity in the murder.
3. In his report to the Secretary of State, the trial judge described the murder as a cold blooded execution, and said that he could find no mitigating circumstances. He recommended a minimum term of 16 – 18 years. On 18 February 2000 the Lord Chief Justice recommended a minimum term of 17 years.
4. The applicant appealed to the Court of Appeal on a number of grounds but was granted leave to appeal only on grounds relating to the conduct of defence counsel at the trial. On 14 April 2003 her appeal was dismissed.
5. It is submitted on behalf of the applicant that the case does not fall within either paragraph 4 (1) (where the seriousness of the offence is exceptionally high) or paragraph 5 (1) (where the seriousness of the offence is particularly high) and that in the result the appropriate starting point under the 2003 Act is 15 years. It is submitted in relation to aggravating factors under paragraph 10 of schedule 21 that the only potentially relevant factors in the applicant’s case are under (a) a significant degree of planning or premeditation, and (c) mental or physical suffering inflicted on the victim before death, though it is equally submitted that the latter element is of marginal significance as the victim lost consciousness prior to death. As to general mitigation, the applicant relies on a number of matters:
1) she has two daughters now aged 15 and 22 who have no father caring for them;
2) Fernandez was the principal and the applicant under his influence throughout the incident;
3) whilst in custody, the applicant has made excellent progress, being down graded from category A and completing educational courses. She has also become a qualified gym instructor and been awarded certificates in computer technology and key skills. She hopes to obtain a degree in social science from the Open University within a few months.
4) she has no conviction for any offence against the person prior to this incident.

   6.     I accept the submission made on behalf of the applicant that, having                 regard to schedule 21, this offence does not come within the category of exceptionally high seriousness with a starting point of a whole life order. However, the next category of offences of particularly high seriousness, with an appropriate starting point of 30 years, includes murders for gain, for payment or in the expectation of gain [see schedule 21 paragraph 5 (2)(c)]. Having regard to the fact that this applicant was the joint procurer of the murder with Fernandez and that they employed contract killers to carry out the offence, in my judgment the appropriate starting point in the case of the applicant is 30 years.  Paragraph 10 of schedule 21 identifies a significant degree of planning or premeditation as an aggravating factor, but that in my judgment in this instance is already taken into account in the appropriate starting point of 30 years.
7.      As to mitigation, I do not consider that the specific mitigating factors identified in paragraph 11 schedule 21 are present in this case. As to the matters of general mitigation on which the applicant relies, it is asserted that Fernandez was the principal and the applicant under his influence throughout the incident, but the judge who tried the case took the view on the evidence that there was no reason to distinguish between the relative culpability of this applicant and her two co-defendants.
8. Another matter relied on by way of general mitigation is the progress the applicant has made in custody. It is now clear that exceptional progress in prison can be taken in to account in reduction of the minimum term (R v Caines, R v Roberts 2006 EWCA Crim). However the progress must be exceptional. In Riaz (2004) EWHC 74 (QB) Hooper J having set out cases in which tariffs had been reduced on the ground of exceptional progress in prison by one or two years, said:
“10. The home secretary has never issued a definition of what constitutes progress in prison. Cases are considered on an individual basis and exceptional progress has to stand out clearly from the good progress in prison that is expected of all mandatory life sentence prisoners. In broad terms the home secretary would look for an exemplary work and disciplinary record in prison, genuine remorse, and successful engagement in work (including offence related courses) that has resulted in substantial reduction in areas of risk. All these would have to have been sustained over a lengthy period and in at least two different prisons. To reach the threshold of exceptional progress there would also need to be some extra element to show that the lifer had done good work for the benefit of others. Examples would be acting as a Listener (helping vulnerable prisoners), helping disabled people use prison facilities, raising money for charities, and helping to deter young people from crime. Again there would need to be evidence of sustained involvement in at least two prisons over a lengthy period. ”
9. There is no doubt that the applicant on the basis of the material submitted has made good progress in prison. That includes the following, identified in the written submissions made on her behalf:
i) transfer from a category A prison within 4 years after conviction;
ii) willingness to participate in whatever course is necessary for progress;
iii) participation in educational courses, certificates in computer technology and key skills and qualification as a gym instructor;
iv) the applicant is undertaking an open university degree in social sciences;
v) she is polite, respectful and adheres to rules and regulations causing no problems in the disciplinary field.
10. The applicant is to be commended on these positive reports but I do not regard the progress as exceptional so as to justify a reduction in the minimum period.
11. I am required by paragraph 7 of schedule 22 to have regard to any recommendation made to the Secretary of State by the trial judge or the Lord Chief Justice as to the minimum term to be served by the offender before release on license. Those recommendations respectively of 16 – 18 and 17 years were made at a time when the practice set out by Lord Bingham in his letter of 10 February 1997 had effect. It is difficult to determine what effect on a period of 30 years the fact of a recommendation by a trial judge and Lord Chief Justice of 16,17 or 18 years would have, if the court has regard as it is required to do to the recommendation by the trial judge and the Lord Chief Justice in setting the minimum term,  particularly when the gap between the two is, as here, very substantial. Doing the best I can I would be inclined to reduce the minimum period from 30 years to 25 years. That however is not the end of the process. The term which I set must be not greater than that which the Secretary of State would have been likely to set under his practice before December 2002. In order to determine whether 25 years would be greater, I have to consider therefore what term the Secretary of State would have been likely to set following the recommendation by the trial judge and the Lord Chief Justice. Having regard to the fact that this conviction occurred at a time when the practice followed by trial judges and the Lord Chief Justice in setting minimum terms was based on Lord Bingham’s letter of 10 February 1997, I conclude that the trial judge following the practice set out in that letter would have recommended  the period which he in fact recommended and that the Lord Chief Justice would similarly would have recommended to the Secretary of State the period of 17 years. In the circumstances of this case, it is likely in my judgment the Secretary of State would have followed the recommendation of the Lord Chief Justice and fixed the minimum term at 17 years. As the term that I set must not be greater than that, I would be minded to fix the minimum term at 17 years, but I should also have  regard to the time spent by the applicant in custody on remand awaiting trial, namely a period of 10 months 14 days. Accordingly I order that the provisions of section 28(5) to (8) of the Crime (Sentences) Act 1997 (the release provisions) are to apply to the applicant when she has served 16 years 1 month and 16 days.

 


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