Cymraeg | Access Keys | Site Map | Feedback
Legal / Professional
Advanced search

Minimum terms

High Court setting of minimum terms for mandatory life sentences under the Criminal Justice Act 2003

<< Back

Neutral Citation Number: [2005] EWHC 2525 (QB)

Case No: 2004/198/MTS; 2004/199/MTS

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 11/11/2005

Before :





Hearing Date: 2 December 2005

Mr Justice Bell :
1. Between 19 February and 12 March 2002, Jason Duncan James and Daniel Francis Whyte were tried, verdicts returned, sentenced and recommendations made under section 1(2) of the Murder (Abolition of Death Penalty) Act 1965 as follows:
i) Count 1 (murder of Guiseppina Martorana). Both pleaded Not Guilty. Both found guilty by unanimous verdicts. Both (mandatory) life imprisonment. Section 1(2) of the Murder (Abolition of Death Penalty) Act 1965 recommendations: James minimum 25 years, and Whyte minimum 20 years.
ii) Count 2 (attempted murder of Steven Martorana). Both pleaded Not Guilty. James Found Guilty by unanimous verdict. Whyte found Not Guilty.
iii) Count 3 (attempted murder of Isabella Agnes). Both pleaded Not Guilty. James found Guilty by unanimous verdict. Whyte found Not Guilty.
iv) Count 4 (robbery of Guiseppe Martorana). Whyte pleaded Guilty. James found Guilty by unanimous verdict.
v) Count 5 (robbery of Guiseppina Martorana). Both pleaded Not Guilty. Both found Guilty by unanimous verdicts. James (discretionary) life imprisonment on Counts 2, 3, 4 and 5. With a specified part of 10 years (22 years, less half, less one year in custody, before sentence). Whyte (automatic s109 PCC(s) A 2000) life imprisonment on Counts 4 and 5, with a specified part of 7 years (16 years, less half, less one year in custody before sentence).
2. The essential facts of the offence were as follows:
i) On the afternoon of August Bank Holiday Monday, 28 August 2000, Whyte and James set off by car with a loaded 0.32 revolver to rob in Kensington, Chelsea or Knightsbridge.
ii) At about 7pm James saw Mr and Mrs Martorana in Knightsbridge, wearing valuable Rolex watches and followed them in a car driven by Whyte to their home in Hoddesden.
iii) When Mr and Mrs Martorana parked and got out of their car outside their house at about 8pm, Whyte holding the gun in his dominant left hand, grabbed Mr Martorana to take his watch from his wrist (Count 4). Mr Martorana struggled and the gun was passed to James, to free Whyte’s hands to help him to rob Mr Martorana, and (in my view) to enable James to use and fire it to effect a robbery of Mrs Martorana (Count 5).
iv) James shot Mrs Martorana as she made for her front door. She died three weeks later (Count 1).
v) Mr and Mrs Martorana’s son, Steven, came out of the front door and James shot him, seriously wounding him (Count 2).
vi) Steven’s girlfriend, Isabella Agnes, followed him out of the front door and James shot her, seriously wounding her (Count 3).
vii) James then shot Mr Martorana but missed. He took Mrs Martorana’s watch from her helpless body (Count 5).
viii) Whyte had made off as soon as he had Mr Martorana’s watch. He waited for James and then drove away, pursued by Mr Martorana. At one point Whyte slowed and stopped to let James try to shoot Mr Martorana but Mr Martorana rammed the robber’s car before a shot was fired. They drove away, losing Mr Martorana.
ix) The two defendants were arrested many months later. Whyte at first denied going to Hoddesden. He gave a false alibi. Then, after charge, he asked to be interviewed in prison and said that he had been at the robbery but had only realised that James had a gun at the last minute and had taken it from him so that he could not use it (hence his “innocent” possession of the gun at the beginning of the robbery). He had turned to God and wished to confess the true, but limited, extent of his involvement. He gave evidence naming James as the shooter. James made no comment interviews but gave evidence saying he took no part in the robberies and shootings; he was in London all day.
3. Since the defendants were sentenced on 12 March 2002, Mr Martorana has made a short statement that the pain and suffering, as the result of his wife’s killing, articulated in an earlier written statement, has been far greater than he could have imagined.
4. Solicitors for James have written asking that account be taken of his impeccable record in prison, lack of any previous offence involving a firearm, and the fact that he has a young family.
5. In Whyte’s case his counsel made a full speech in mitigation before sentence, but he has made two written representations. Among other matters they stress his remorse and disgust at his offences, and the way he has changed since the offences. I have a report on his educational achievements and aspirations and work with CARAT. His solicitors have written twice making a number of points on his behalf which include the points made by counsel in mitigation including the fact that he made a statement involving James, and effectively gave evidence against him at trial; and that the jury’s verdicts indicated that they were not sure that Whyte had an intention to kill. They contend that insufficient distinction was made between Whyte and James so far as recommended “tariffs” are concerned. I take account of all the points made in the representations of Whyte and his solicitors.
6. Whyte’s solicitors also suggest that I had insufficient time to reflect upon the appropriate tariff before making recommendations under s1(2) in “the glare of media attention”. I reject this suggestion. The trial unfolded over a period of three weeks. I had the benefit of able counsel’s speeches to the jury on all possible interpretations of the evidence. The jury’s verdicts spoke clearly as to the degrees of criminality of each defendant. There was media attention but it added nothing to the awfulness of the killing of Mrs Martorana. I see nothing wrong with instant retribution. The powerful reasons for making section 1(2) recommendations in open court were:
i)   the murder of Mrs Martorana by shooting in the course of a robbery was an exceptionally awful crime which must be met with a long period of actual imprisonment;
ii) it was in the public interest to make the court’s recommendation in open court so that those who contemplate committing similar offences might appreciate that, if caught and convicted, they will spend a significant proportion of their lives in prison; and
iii) the recommendations should be made openly so that no one would be misled by the lesser effective sentences which were imposed on other counts in the indictment.
7. The defendant Whyte has asked for an oral hearing so that he can address me directly. I see no need for oral representations. The points of aggravation and mitigation are clear.
8. The defendant James was born on 20 February 1972. His convictions of the attempted murders of Steven and Isabella, meaning that the jury was sure that he intended to kill them, indicate that he also intended to kill Mrs Martorana, and in  my judgment he clearly did intend to kill her. So this was a calculated, armed, “kill if necessary” robbery from James’ point of view, with no expression of remorse. I remind myself that Lord Woolf CJ regarded a tariff of 25 years as “too high taking into account it equates to a determinate sentence of about 50 years”, and that he recommended 20 to 22 years in James’ case. However, he also noted that I had the advantage of hearing the evidence. I have approached the matter afresh, but I consider that any minimum term of less than 25 years in James’ case would fail to provide sufficient retribution and, importantly in my view, a sufficient element of deterrence to those who might contemplate committing similar offences. I therefore, set the minimum term which Jason Duncan James must serve, before the provisions of section 28(5) to (8) of the Crime (Sentences) Act 1997 apply, at 24 years, 1 month and 5 days, which allows for 10 months and 25 days spent in custody prior to conviction and sentence.
9. The defendant Whyte was born on 15 November 1977. His acquittal of the attempted murders of Steven and Isabella, might have meant that he had withdrawn from the joint enterprise with James before they were shot. Having heard all the evidence, however, I believe that the proper construction of the verdicts is that the jury was not sure that he actually intended anyone to be killed. So his conviction of murder of Mrs Martorana must mean that the jury was sure that he contemplated the possibility of really serious injury being caused to her with the gun, rather than death. But he must have known of the loaded gun from the start, and he carried it onto the scene of the premeditated robberies in his dominant hand. He was younger than James, and he did help the Crown by naming him and, in effect, giving evidence against him. I am prepared to accept that he has felt remorse since the offences, but he showed more concern for himself than regret for the Martorana family when giving evidence, and his false evidence of a planned “snatch” only, with no weapon involved, demonstrated a considerable element of self-preservation in his statement and evidence against James. I have no doubt that he passed the gun to James partly to get his hands free to rob Mrs Martorana, but also to enable James to use and fire it, if necessary, to effect the robbery of Mrs Martorana. He drove James away after the shootings, and when Mrs Martorana caught up in his faster car, he stopped in the hope that James might be able to shoot Mr Matorana.
10. I remind myself that Lord Woolf CJ regarded a tariff of 20 years as too high in Whyte’s case, and recommended 17 to 18 years, but again I had the advantage of hearing the evidence, including the evidence of Whyte himself, and I consider that any minimum term of less that 20 years in his case would fail to provide sufficient retribution  and, importantly again in my view, a sufficient element of deterrence. Differential sentences tend to engender debate but a difference of 5 years, actually to be served, between Whyte and James is appropriate, in my view, to reflect the difference between shooter and non-shooter and their intentions at the scene, and Whyte’s greater honesty afterwards, while remembering that Whyte lent himself fully to the initial dangerous joint endeavours. He was never honest as to the true extent of his involvement at the scene, and his conduct during the getaway was inconsistent with any immediate remorse for what had happened.
11. I therefore set the minimum term in Whyte’s  case at 19 years, 1 month and 5 days, which allows for 10 months and 25 days spent in custody prior to conviction and sentence.

^ Top
This page was last updated on 24 November 2006 11:58. Web team.
Contact us . Terms and conditions .