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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: 2004/263MTR

Neutral Citation 2005 EWHC 2574 [QB}

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 23/11/2005

Before :

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Application by CHRISTOPHER ANTHONY ROCHE for the setting of a minimum term pursuant to Schedule 22, paragraph 3, of the Criminal Justice Act 2003.
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I direct that pursuant to CPR PD 39A paragraph 6.1 no official shorthand not shall be taken of this decision and that copies of this version as handed down may be treated as authentic.




Davis J :
1. The Defendant (who was born on 16th August 1969) was convicted on a count of murder, after a trial at Sheffield Crown Court, on 4th May 1995. He was sentenced to a term of life imprisonment, with concurrent custodial sentences for counts of theft, robbery and burglary.
2. The tariff recommendation by the trial Judge was 11 years. The then Lord Chief Justice recommended 12 years.  In the event, by decision of 2nd April 1996, the Home Secretary set the tariff at 13 years.
3. The matter comes before me pursuant to the provisions of section 276 and Schedule 22 of the Criminal Justice Act 2003.  I have had regard, in deciding on the minimum term, to be specified, to the 2004 Practice Direction (Crime: Mandatory Life Sentences (No 2)) set out in Archbold (2005 ed) at para 5- 251.
4. I have had regard to all the papers, including written representations lodged in 2004 by the Defendant’s solicitors.
5. The facts in summary, as they appear from the papers before me, are as follows:
i) The Defendant had by 1994 a bad record, involving offences of violence and burglary.  In January 1994 he started on a campaign of offences targeted at elderly people in his locality.  It seems the Defendant was trying to fund his addiction to drink and (perhaps) drugs.
ii) The counts to which he pleaded guilty (for offences which occurred in early 1994) featured the snatch of a purse from a 76 year old woman in a wheel-chair at the end of a social visit; and a nightime robbery of an 81 year old woman in her home, in the course of which she was threatened and her throat was squeezed.  Another count of burglary again involved an elderly woman, who was confronted by the Defendant in her bedroom.
iii) The murder in question was committed on 2nd March 1994 during the course of a nightime burglary on the part of the Defendant of a neighbouring home occupied by an elderly couple. The man was a 66-year-old invalid, who slept on the settee.  He was disturbed, tried to call for help and was then asphyxiated – probably by use of a pillow.  The Defendant took some money before leaving.
iv) At trial, the Defendant offered a plea to manslaughter, but this was not accepted.  Intent was the issue.  The jury rejected the defence that there was lack of the necessary intent.
6. Had the murder been committed after 18th December 2003 then (by reference to Schedule 21 of the Criminal Justice Act 2003) the starting point would have been at least 15 years, even before the impact of aggravating and mitigating factors: and could have been 30 years (see para 4(2) of Schedule 21).  However, the general tariff, by way of starting point, applicable at that time of this offence, for what might be called a “normal murder” was 14 years. However, in the present case (see IV. 49.19 of the Practice Direction) this was, in my view, a case which, given the circumstances, potentially called for a sentence more severe than that norm.
7. The following are, in my view aggravating factors:
i) The murder was committed during the course of a burglary.
ii) The victim was an elderly invalid, unable to defend himself, and who was killed to prevent him calling out; the process of asphyxiation, moreover, could not have been instantaneous.
iii) The murder was the culmination of something of a campaign of crime targeted at elderly victims, where the Defendant had shown himself willing to use force when he thought it necessary for his purposes.
8. The following are, as I see it, mitigating factors:
i) The trial Judge was clearly impressed by the evident remorse on the part of the Defendant.
ii) It is implicit in the trial Judge’s comments that the Defendant had not gone to the house intending to kill where necessary and that there was some element of panic involved (although this has to be set in the context of the Defendant’s previous conduct in the other matters).
iii) It is also of note in this context that a psychiatric report dated 8th September 1994 assessed the Defendant as “not a violent person”.
There could, however, be no mitigation for a plea, the issue of murder having been contested at trial.
9. I have had regard to the representations setting out the mostly excellent conduct and progress of the appellant whilst in prison; and I also note the time spent on remand in custody before sentence (13 months 19 days).
10. In my view this was a very serious case of murder indeed: it was the culmination of a campaign of criminal conduct targeted against elderly people where the Defendant had shown himself prepared to use force to obtain the money he needed; and it involved the asphyxiation of an elderly invalid in his own home in the course of a night time burglary.  In my view, and making full allowance for the mitigating factors, and having regard to the seriousness of the offence and to considerations of retribution and deterrence, the appropriate minimum term is one of 13 years before the Defendant can be considered by the Parole Board for early release on licence: however, there is then to be deducted from this term the time of 13 months 19 days spent on remand in custody.  I so specify.

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