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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: [2008] EWHC 1805 (QB)

Case No: 2004/978/MTR
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 01/08/2008

 

Before :


MR JUSTICE GRIGSON

 

APPLICATION BY  DARREN MATTHEW RHODES                                                                             
FOR THE SETTING OF A MINIMUM TERM PURSUANT TO SCHEDULE 22, PARAGRAPH 3 OF THE CRIMINAL JUSTICE ACT 2003

 

 

DECISION


 
Mr Justice Grigson: 
 
1. This is an application by Darren Matthew Rhodes for setting of a minimum term pursuant to Schedule 22, paragraph 3 of the Criminal Justice Act 2003.

2. The Applicant pleaded guilty to murder on 30th July 2001. 

3. On that day he was sentenced to life imprisonment with a recommended minimum term of 17 years.

4. That term was endorsed by the Lord Chief Justice.

5. The term notified to the Applicant by the Secretary of State was 17 years.

6. The minimum term is the period which the Applicant must serve before the Parole Board can consider his release on licence.  It is not the term that the Applicant will serve before his release on licence.

7. Para. 4(1) of Schedule 22 directs that this Court must have regard to:

(a) The seriousness of the murder and of offences associated with the murder

(b) The length of the notified minimum term.

8. Para. 4(2) requires the Court to have regard to:

(a) The general principles set out in Schedule 21 of the Criminal Justice Act 2003 in determining the seriousness of the offence.

(b) 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 Applicant.

9. Para. 3(1) a provides that any minimum term set by this Court must not be greater that the notified minimum term.

10. Schedule 21 sets out three categories of seriousness.  Each one has a starting point:

(a) Para. 4(1)a.  Where the offender is over 21 and the seriousness of his conduct is exceptionally high, the starting point is a whole life order.

(b) Para. 5(1)a & b.  Where the offender is over 18 and the seriousness is particularly high the starting point is 30 years.

(c) Para. 6.  Where the offender is over 18 and the case does not come within (a) or (b) above, the starting point is 15 years.

11. The seriousness of the offender’s conduct is to be determined by the criteria set out in paragraph 4(2). [Exceptionally high cases] and 5(2) [Particularly high cases].  Conduct which does not qualify for either comes into the third category of seriousness.

12. Having determined the starting point, the Court may either increase the minimum term or reduce the minimum term depending upon whether there are aggravating or mitigating features other than those which have determined the seriousness of the conduct.  Some of those factors are listed under the relevant headings in Para. 10 and 11 of Schedule 21.

13. Section 143 provides that previews convictions are an aggravating factor: Section 144 provides that a guilty plea is a mitigating factor.

14. Having thus ascertained the minimum term the Court must deduct from it time spent in custody on remand in relation to the index offence.

15. Good conduct whilst in prison is of great importance to the Applicant and to those responsible for his progress within the prison system.  It is not one of the factors required to be taken into consideration by statute.  Exceptional progress should be recognised by some reduction in the minimum term.

16. Where there is evidence of the effect of the murder upon the victim’s family, the Court must give proper consideration to that material.

17. Material before the Court: 

i) Home Office file including the trial judges report.

ii) Psychiatric report.

iii) Submissions by the Applicant of 25th March 2002 and 5th October 2004.

18. Facts:

The victim was a known gambler and womaniser.  The Applicant believed he was in possession of a substantial sum of money.  He lured the victim to the home he shared with his girlfriend, Debbie Andrews on the promise of ‘some girls’.  She alleged that the deceased exposed himself to her.  The Applicant punched the deceased twice to the face knocking him down.  He then armed himself with a hammer and struck the deceased numerous blows to the head, neck and right knee, deliberately smashing the knee cap.  He shouted racial abuse as he did so.  He made telephone calls during the attack and was heard to say he had “beat this Paki up” and “he’s only a Paki and I don’t mind doing time for killing the black bastard”.  The first attack was not fatal.  After about half an hour he resumed the violent assault, kicking and stamping on the head of the deceased.

The trial judge accepted that although the Applicant used racial abuse, this was not an attack motivated by racism.  The motive was robbery.

 

 

19. Aggravating Features: 

In my judgment, the aggravating features are significant.  This was a prolonged and very brutal attack.  The intention was to kill, the degree of provocation - if any - was slight and in any event self-induced.  The motive for the attack was robbery.  The Applicant clearly knew exactly what he was doing, he gave a running commentary of his actions.

20. Mitigating Features: 

The only real mitigation was his plea and his youth.

21. Submissions from the Applicant.

1) It was submitted to the Secretary of State that the trial judge was wrong to find that the motive was robbery.  This submission is ill founded.  There was ample evidence that the deceased had a substantial sum of money on him prior to the attack.  Debbie Andrews told the Police that the Applicant told her that he intended to take that money.  The Applicant told Gareth Burns in a telephone call made at 2.22am.

“I seen him with loads of money in the pub – a wad of notes – he’s been buying loads of drinks but I just couldn’t find it in his pockets”

2) It is asserted that the conduct of the deceased towards Debbie Andrews provided a degree of provocation.  I comment that if the Applicant had not misled the victim as to the purpose for visiting his home, the alleged provocation would not have arisen.

3) It was submitted that the intention was not to kill but to cause grievous bodily harm.  That submission is difficult to accept given the very brutal nature of the attack and the fact that it took place over a prolonged period.  The comments of the Applicant during the various phone calls he made during the attack support the view that however drunk he may have been he intended to kill the victim.

4) His youth, lack of convictions for serious violence and his plea of guilty are prayed in aid.

5) In his submissions of 5th October 2004 the Applicant relies upon:

 a)  his plea of guilty at an early stage.

 b) his age and character.

 c) his assertion that the nature of the attack was out of character.

 d) he has acquired insight into his behaviour.

 e) references as to his character supplied to the Court.

6) The Applicant submits that he was given insufficient credit for his plea of guilty, and/or that the trial judge started at too high a point.
7) A number of cases illustrating the application of the tariff are cited.  These are not precedents.  Each is fact specific.

  
22. Starting Point.

It is argued that the starting point should have been 14 years and that whilst accepting that there were aggravating features, given his age, the provocation, the absence of an intention to kill, his plea of guilty and the evidence of remorse, the notified term was too high.

It is plain that the trial judge and the Lord Chief Justice applied the appropriate guidelines.  The criticisms made are unfounded.

Under Schedule 21 of the 2003 Act this murder comes within the category of particularly high seriousness.  It was committed for gain and, arguably, involved sadistic conduct.  The starting point would be 30 years.


23. Progress in Prison.

It is submitted that the Applicant had made exceptional progress whilst in prison.  I am not going to set out his achievements here.  Whilst I accept that his progress has been good, I do not see that it is exceptional.

24. Psychiatric Report of 30th April 2001.

There is nothing in the report which assists the Court.  The Applicant did not suffer from any mental illness or disability.

25. Conclusion.

I can see no good reason to shorten the recommended minimum term save by the deduction of the 10 months and 4 days that the Applicant spent in custody on remand.

 

 

 

 

 

 


 


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