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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: [2006] EWHC 2032 (QB)

Case No: 2004/666/MTS

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 28th September 2006



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David James SADLER 



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.



Mr Justice Nelson :
Setting of minimum term in relation to David James Sadler pursuant to paragraph 6, schedule 22 of the Criminal Justice Act 2003.
1. On 13 March 2003 at the Crown Court at Maidstone, David Sadler was convicted by a unanimous verdict of the murder of Gary Theo on 20 August 2002. At the conclusion of the trial Mr Sadler was sentenced to life imprisonment. In accordance with the prevailing practice I reported to the Secretary of State my views as to the tariff period he should serve to meet the requirements of retribution and general deterrence. I concluded that the appropriate tariff period was 10 years.
2. The case of Mr Sadler has now been referred to the High Court for the determination of the minimum term pursuant to section 276 and schedule 22 of the Criminal Justice Act 2003. The early release provision under section 28(5) to (8) of the Crime (Sentences) Act 1997 apply to Mr Sadler as soon as he has served the minimum term which I now set.
3. In determining the minimum term I have had regard to the seriousness of the offence in accordance with the general principles set out in schedule 21, the recommendation which I made to the Secretary of State in my report, together with my sentencing remarks when I passed the sentence of life imprisonment, the representations made on behalf of Mr Sadler by his counsel Scott Ivill dated 15 June 2005 and by his solicitors Messrs Goldkorns in a letter dated 16 June 2005. There are no victim impact statements before me.
4. Paragraph 8 of schedule 22 provides that the High Court may not make an order specifying a minimum term which in the opinion of the Court is greater than that which, under the practice followed by the Secretary of State before December 2002, the Secretary of State would have been likely to notify. For the purposes of applying this requirement I have considered the Practice Statement handed down on 31 May 2002 (see amendment no. 8 to the Consolidated Criminal Practice Direction (Mandatory Life Sentences)).
5. The facts of the case are that The Defendant was a jealous man who became obsessed by the affair which his then partner, later wife, had with Rob Tabberer, during a time when the Defendant and his wife to be were separated. The Defendant and his partner married after their separation but the affair which his now wife had had preyed upon the Defendant’s mind to the extent that he made literally hundreds of telephone calls to her former lover between February and July 2002 many of them abusive and threatening. He convinced himself that the affair was still continuing.

6. The Defendant decided to ‘cut’ Mr Tabberer, armed himself with a large kitchen knife and set out in his car for the house in Gillingham, where he believed him to be. He telephoned the lover’s mobile, threatened to cut him, and, after he had arrived at the house, to kill him. In fact the intended victim, Mr Tabberer, was not there at all, but in Walsall. He nevertheless pretended that he was in Gillingham. Mr Tabberer warned his best friend, Mr Theo, who was at the house in Gillingham of the Defendant’s impending arrival, and he, knowing of the many abusive and threatening phone calls which Mr Tabberer had received, went outside to confront the Defendant. Before the Defendant was able to get out of his car the victim set about the car with two metal bars tied together. He struck the car and the Defendant with either the metal bar or his fists. The Defendant sustained bruising and minor lacerations. Whilst still in the driver’s seat the Defendant struck back at the victim, reached for the kitchen knife and stabbed the victim twice, one blow penetrating the heart.

7. The Defendant then drove to his home, calling a friend on the way to ask him to provide an alibi for him and stating that a man had had his ‘come-uppance’.
8. The jury rejected the defence of self-defence and provocation. I considered that the aggravating features were that the Defendant set off with the intention to cut or kill the lover and in order to be able to do so armed himself with a knife in advance. The mitigating features were that the Defendant’s car was attacked by the victim with two metal bars taped together and he himself was struck either by the metal bars or by punches from the victim. In addition the Defendant had been taunted by the lover on the telephone when, after many hundreds of calls, the lover had become exasperated by the Defendant’s abuse and threats.
9. In representations made on behalf of Mr Sadler it is submitted that there are no aggravating factors but the provocation, albeit not amounting to a defence of provocation, and the acts in self-defence, albeit not amounting to a defence of self-defence, were mitigating factors. In addition Mr Sadler has suffered personal consequences himself as a result of his actions. A divorce is imminent, he is refused access to his young daughters, he has lost his employment as a company director working in the civil engineering and structural field, his property has been repossessed and he was unable to be with his terminally ill father during the final weeks of his life. He has made exceptional progress in custody in both the enhanced thinking skills programme and generally. He is highly regarded in prison, where he is established as a leader of the prison community. The Lifer officer’s report shows the extent to which he has progressed.
10. I accept now as I did when I made my recommendation to the Secretary of State, that the attack on Mr Sadler by the victim Mr Theo and the taunts which Mr Tabberer had made to him on the telephone were mitigating features even though neither of them amounted to the defence of self-defence or provocation. I do not however accept that there were no aggravating features. Setting off with the intention to cut or kill the lover and arming himself with a knife in advance in order to be able to do so is an aggravating factor even though it is not specifically listed in paragraph 10, 4(2) or 5(2) of schedule 21.
11. I do accept that Mr Sadler has made considerable steps whilst in prison to help others as well as advancing himself and has also shown remorse. Nevertheless, as Lord Justice Rose said in R v Secretary of State of the Home Department ex parte Cole [2003] EWHC Admin 1789 only exceptional progress in prison will justify a reduction in minimum term. On the facts of the case before the Court in ex parte Cole Lord Justice Rose did not consider that a prisoner who was part of the Listener Scheme, had done considerable work on his offending behaviour, showed significant remorse, and who was working four days a week outside the open prison in which he was detained, and one day on an Open University degree course in prison, had shown himself to be sufficiently exceptional to require his progress to be taken into account when determining his tariff.
12. When the starting points under schedule 21 are considered the appropriate starting point is one of 15 years compared with the starting point of 12 years under the Practice Statement of 31 May 2002. When the aggravating features and mitigating features are weighed and considered I would have concluded that a minimum term of 12½ years would have been appropriate had I been applying schedule 21. I do not however believe that the Secretary of State following the relevant practice prior to December 2002 would have notified the tariff of 12½ years. When the full circumstances of the offence, including any aggravating and mitigating factors, are taken into account, it is my view that the Secretary of State acting on the relevant Practice Direction in force at the time would have determined that 10 years was the appropriate tariff. Apart from paragraph 8 of schedule 22 it would be wrong in principle to apply today’s standards, reflected by the provisions of the 2003 Act, to the setting of the term which was carried out in April 2003 in accordance with the pre December 2002 Practice Direction.
13. I have considered with care whether or not Mr Sadler’s progress in prison should further reduce the minimum term from 10 years as his solicitors and counsel have submitted. The good progress that he has made is the sort of progress that it is to be hoped all mandatory life prisoners will achieve, and will certainly stand him in good stead when his release comes to be considered in due course by the Parole Board. I do not however consider that there is any exceptional feature present here which would justify the reduction of minimum term.
14. Accordingly I determine that the minimum term in this case is one of 10 years. From that minimum sentence has to be deducted the period of 6 months 17 days spent in custody on remand.

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