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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 2816  (QB)

Case No: 2004 /121/ MTS
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION


NEWCASTLE CROWN COURT


Date: 8th November 2006

 


Before:

THE HON MR JUSTICE ANDREW SMITH
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Between:

 Regina  
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 BARRY KEITH HILLMAN 

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APPROVED JUDGMENT
I direct that 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 Andrew Smith

 
1. This case is referred to the court under schedule 22 of the Criminal Justice Act 2003 for an order under section 269 of the Act in relation to a mandatory life sentence passed upon Barry Kenneth Hillman for the murder of Vytautas Jelinskas.  I have considered written representations submitted on behalf of Mr Hillman dated 4 June 2004, as amended under cover of a letter dated 9 November 2004, and submitted in February 2005.  I have also considered the minimum period that should be served by Paul Robert Gowans, who was a co-accused with Mr Hillman and also convicted of the murder of Mr Jelinskas.   

2. Mr Hillman is an “existing prisoner” within the meaning of schedule 22.    On 24 August 2001 he was convicted by the jury of the murder and he was sentenced to custody for life by the trial judge, HHJ Stephens QC.     

3. This is not a case in which there should be an order under section 269(4) that the early release provisions should not apply to the prisoner, and I must determine the part of the sentence that he must serve before the provisions apply to him.  I may not determine a period greater than that which in my opinion the Home Secretary would have been likely to notify to him under the practice followed before December 2002.   In determining the minimum period, I must consider the seriousness of the offence of murder that Mr Hillman committed, and in doing so, I must have regard to general principles set out in schedule 21 of the Act and also to the recommendation made by the trial judge.   

4. Mr Hillman was born on 14 March 1980 and was therefore aged 19 years when on 29 January 2000 he robbed and injured Vytautas Jelinskas, a Russian working in London as a pizza delivery man.   His co-offender, Paul Gowans, was aged 27.   They were both under the influence of crack cocaine and committed the offence in order to fund their habit.  Mr Jelinskas suffered severe brain damage as a result of kicking, and shortly afterwards he fell into a coma.  Gowans and Hillman pleaded guilty to robbery and were convicted by the jury of causing grievous bodily harm with intent and were sentenced to custodial terms.   However, Mr Jelinskas, whose condition had stabilised, developed an infection and died of septicaemia resulting from an infection on the day after they were sentenced, and they were charged with murder.   

5. The trial judge recommended a minimum term of 12 years, and the Lord Chief Justice, Lord Woolf, recommended one of 11 years.    Because of the changes in setting minimum terms introduced by the 2003 Act, the Home Secretary did not notify Mr Hillman of his minimum term.  The trial judge considered that an aggravating feature of this offence was that it was done for gain.  Against this, he took account of the fact that, as he concluded and as I accept, there was no intention to kill and of Mr Hillman’s age, and of what he described as “the extra hardship of a second trial”. He observed that there was no evidence about what part each defendant played in the attack upon Mr Jelinskas, the only eye witness speaking of both men holding the victim is a headlock and of Mr Hillman kicking the body.   

6. As I have said, by the time that they were sentenced on 24 August 2001 the offenders had already been sentenced for other offences arising from this incident.   Hillman was sentenced to a total of 8 years, comprising 18 months for the robbery and 6 and a half years for causing grievous bodily harm with intent.  At the same time he was sentenced to a concurrent term of 18 months for another robbery.   Gowans was sentenced on 18 August 2000 to a total of 8 years and 6 months in respect of the offences against Mr Jelinskas, comprising 18 months for robbery and a consecutive term of 7 years for causing grievous bodily harm with intent.  He was also sentenced to a concurrent term of three years for another robbery.  

7. The two men had been arrested on 11 February 2000 and both had been remanded in custody before being sentenced on 18 August 2000.   It is clear from the exchanges between the trial judge and counsel on sentence for murder that, despite the complicating matter of the sentence for the other robbery, the trial judge was prepared to regard as referable to the attack on Mr Jelinskas the period of something between 18 and 19 months that Hillman had served before being sentenced to life imprisonment.     I consider that, although this is not expressly referred to in his report to the Home Secretary, the trial judge’s recommendation took into account that this period had been spent in prison.  I adopt the same approach.

8. The family liaison officer reported to the trial judge the views of Mr Jelinskas’ family: his wife said that she bears no malice towards his killers and did not seek revenge, and his elderly parents expressed similar sentiments: “All family members feel this is a tragic case which has resulted from the misuse of drugs”. Like others have done, I pay tribute to this high-minded response to their tragedy.

9. Hillman was of previous good character apart from the other robbery for which he was sentenced on 18 August 2000.  Gowans on the other hand had a long record of previous convictions for offences including burglary and assaults and had served previous custodial sentences, the longest being eighteen months.  

10. Neither Mr Gowans nor Mr Hillman gave evidence at their trial for murder and did not advance any defence other than causation.    It is submitted on behalf of Mr Hillman that the circumstances of Mr Jelinskas’ death, in that there were other causative factors than the original assault, are relevant to determining the minimum term.  While there was no break in the chain of causation that provided a defence in law, it is said to be relevant to assessing his moral culpability that there was a failure on the part of those caring for Mr Jelinskas that allowed him to die from avoidable infection.

11. I am prepared to accept that this is one consideration to which the court will have regard in determining the minimum term.   However, the submission of behalf of Mr Hillman goes much further, and argues that because the death of Mr Jelinskas does not reflect additional culpability of Mr Hillman’s part, his minimum term should be set so as so ensure that he spends no more time in custody than he would have spent under the sentences imposed on 18 August 2000, that is to say that his minimum term should be of the order of four years.   I reject that submission: sentences do properly reflect not only the moral culpability for acts but also their consequences.  It would be quite wrong for Mr Hillman’s sentence not to reflect the fact that he caused the death of his victim.

12. Had this been the first trial in respect of the incident, I should have taken into account that at the trial for murder the only issue was one of causation between the injuries inflicted and the victim’s death, and should have considered that Mr Hillman should have much if not all of the credit that would have followed a guilty plea.  However, at the first trial Mr Hillman had pleaded not guilty to the charge of causing grievous bodily harm with intent (albeit he had pleaded guilty to robbery) and this, it seems to me, detracts from any credit that he might have been given for the fact that, after it had been determined that it should proceed despite the earlier convictions, the only issue at the trial for murder was causation.   

13. If I were simply applying the provisions of the Criminal Justice Act 2003 without regard for the transitional provisions, I would consider that the starting point for determining the minimum term is thirty years.  That is because this was a murder done in the course of a robbery and therefore “a murder done for gain” within the meaning of paragraph 5(2)(c) of schedule 21.  It is submitted on Mr Hillman’s behalf that this offence does not fall within the paragraph because it is directed to ‘”professional killings where the purpose of the murder was financial gain.  In contrast, this murder involved a mugging with an unexpected consequence of death”.   I see no reason to interpret the paragraph so restrictively.

14. There are no aggravating features that would justify an increase in the minimum term above that starting point.   There are a number of features that would justify a shorter term, including in particular that, as the trial judge observed, there was no intention to kill and account is properly taken of Mr Hillman’s age when the offence was committed together with his relatively good character.   However, even giving a generous discount for these considerations, taking account of the period that Mr Hillman sent in prison as a result of this incident awaiting trial and then after being sentenced for robbery and causing grievous bodily harm with intent and bearing in mind the noble response of the victim’s family, the minimum term would be much longer than the 12 years recommended by the trial judge.

15. However, in determining the minimum term, I am to have regard to the recommendations of the trial judge and the Lord Chief Justice, and moreover I am not to order a minimum term that is longer than the  period which the Secretary of State would have notified under the practice followed by him before December 2002.   This is one of the relatively unusual cases in which, it seems to me, this last consideration makes a very considerable difference to the minimum term.  

16. It was observed in Sullivan, [2004] EWCA (Crim) 1762 that in a high percentage of cases the Secretary of State adopted the recommendations of the Lord Chief Justice and the judiciary.   The court also observed that they will have applied the relevant Practice Direction in making their recommendation.     In the judgment in Sullivan (loc cit) the court considered the letter sent to judges by Lord Bingham on 10 February 1997, and, following the Practice Direction – Life Sentences for Murder of 27 July 2000, the Practice Statement (Life Sentences) of 31 May 2002.  It was observed that the general effect of these guidance documents is the same, and both afforded a considerable degree of discretion.    I consider that in this case it would not make any difference to the minimum term which guidance is adopted.     Given the date of the attack that caused the death, I shall use Lord Bingham’s letter (as Mr Hillman’s representatives submit I should).

17. Lord Bingham’s starting point of 14 years is therefore adopted.   In my judgment, the fact that the offence was for gain would indicate a term considerably longer than 14 years and this would increase the term to about 16 or 17 years.  Against that, it is a mitigating feature that death was not intended and this would reduce the period to 14 or 15 years.  I would not consider a greater reduction on that account justified, and given this fairly generous reduction I would not expect, or myself allow, a further reduction to reflect that the death was – in causative terms – relatively remote from the attack.    However, I would consider appropriate a further reduction to about 13 years on account of Mr Hillman’s age in January 2000, and the minimum term ordered should recognise the time spent in custody in relation to the offending incident.  I consider that this would result in a minimum period of 11 or 12 years.   

18. It is also submitted on Mr Hillman’s behalf that his conduct in custody justifies a further reduction in his minimum terms.  I am unable to accept that submission, although I accept that Mr Hillman has conducted himself well, has made good progress, has successfully completed a number of courses and has been awarded certificates of many achievements.    The conduct of an applicant in prison may be brought into account when determining the minimum term, but this is done only in rare cases: see Cole v The Secretary of State for the Home Dept, [2003] EWHC (Admin) 1789, where Rose LJ expressed the opinion that “exceptional progress” by a prisoner following conviction should be taken into account in setting a minimum term, “exceptional progress” being progress that stands out from the good progress to be expected of all life prisoners.   I do not think it right to reduce the minimum term to less than 11 years.  
19. I conclude that, on balance, Lord Woolf’s recommendation of 11 years reflects the minimum term that the Secretary of State would have notified before December 2002.   That is the longest period that I can direct in this case and it being shorter than the minimum term that would be indicated by the criteria introduced by the 2003 Act, I direct it.    I therefore order that the early release provisions are to apply as soon as that term has been served.
 
20. I add that it has been submitted that there should be an oral hearing in this case.   The court can hold an oral hearing in appropriate cases, although it has been said that it will do so only rarely: see Hammond, [2004] EWHC 2753 (Admin).   It is submitted that the Divisional Court took too narrow a view of when an oral hearing is required in order to comply with Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.    I disagree, but consider that even taking a generous view of when there should be an oral hearing, I see no reason to hold one in this case.   I should refer briefly to the submissions advanced:


a. It is observed in support of this contention that the Parole Board holds hearings when assessing “post-tariff” detention of a prisoner and equally there should be one when the tariff is set.   This disregards the difference between a decision in a case referred under schedule 22 of the 2003 Act and a decision of the Parole Board with the focus upon an assessment of risk at the end of the minimum term ordered for the purposes of punishment and deterrence..  

b. It is said that an oral hearing gives the judge an opportunity to bring to the attention of counsel any “features which he or she thinks are important” and to “point out concerns that he or she has as to the inadequacy of material put forward in support of a point of mitigation (thus allowing additional submissions (i) as to why reliance can be placed on the material available and/or (ii) as to why adjournment should be sought for further material)”.   There are no such matters that I would wish to raise, but in any case often such points can be dealt with in writing.


c. It is said that an oral hearing “allows, should it be necessary, the judge to form an impression of the defendant if issues of his motivation and the like can be assisted by oral evidence from him and/or experts who have assessed him”.   I do not consider that necessary in this case.

d. It is said that, “when written documents are put forward, there are often significant amounts of material which are irrelevant to the court’s task…it is a truism that one of the points behind oral hearings is that advocates are able to draw to the attention of the court the relevant parts of written materials”.   I cannot see why a competent representative cannot identify in writing what is relevant and what irrelevant (assuming that it is necessary to place irrelevant material before the court at all). 


21. No indication has been given as to what submissions might be developed orally that could not equally effectively be presented in writing.    I see no reason to think an oral hearing is necessary or would be useful in this case.   

 

 

 


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