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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 1427 (QB)

Case No: 2004/157/MTS
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 16/06/2006

Before :

THE HONOURABLE MR JUSTICE AIKENS
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 REGINA 
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 STEPHEN OWEN SULLIVAN 

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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.


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THE HONOURABLE MR JUSTICE AIKENS


 
Mr Justice Aikens :
 
1. On 19 December 2001 at the Crown Court at Chelmsford,   Stephen Owen Sullivan, (“the offender”),  was convicted by a jury of the murder of Justin Chant.  The jury also convicted the offender of the unlawful imprisonment of Justin Chant.   As the trial judge,  I sentenced the offender to life imprisonment for the murder of Justin Chant.  I also sentenced the offender to 18 years for the offence of unlawful imprisonment.    The Court of Appeal dismissed an appeal on conviction and also dismissed an appeal on the sentence of 18 years for the offence of unlawful imprisonment.  (See:   [2003] EWCA Crim 764).
2. In my report to the Secretary of State for the Home Department on the minimum term that the offender should serve before his case was reviewed by the Parole Board for possible release on licence,  I recommended a period of 24 years.  That recommendation was altered by the Lord Chief Justice,  Lord Woolf.  He recommended a period of 20 years.
3. Since those recommendations were made, the relevant provisions of the Criminal Justice Act 2003 (“the CJA”)  came into force on 18 December 2003.     By that date the offender had not been notified in writing of the minimum term which,  in the view of the Secretary of State,  the offender should serve before his release on licence.  Accordingly,  pursuant to paragraph 6 of Schedule 22 of the CJA,    the Secretary of State has referred this case to the High Court for an order to be made by the High Court under section 269(2) or 269(4) of the CJA.  
4. Having considered all the material before me,  including the written representations on behalf of the offender dated 25 May 2005,  as well as the relevant statutory provisions and Practice Directions,    I make an order under section 269(2) of the CJA  that:
i) the provisions of section 28(5) to (8) of the Crimes (Sentences) Act 1997 (“the early release provisions”) are to apply to the offender as soon as he has served the part of the sentence which I set out in (ii) below;
ii) the offender will serve a minimum term of 22 years,  less the time he spent in custody prior to conviction of 12 months and 26 days,  so making a net period of  20 years and 339 days.
5. I set out below my reasons for this decision.
6. The offender and his co-defendant, Mikaela Wrenn, (who was acquitted on all charges) were partners. They had lived together since about 1996 (when Wrenn was 16).   In 1999 they had a child who died when she was 3 months old. In 1999 they lived in Alvis Avenue, Jaywick, near Clacton, Essex.   Lee Smith (another co-defendant who was also acquitted of all charges) and Justin Chant (who were both of very low intelligence) were part of a group of young men who collected around the offender, who exercised a dominating influence over them and also over Wrenn.   The offender so dominated the young men that he was able to get them to steal goods he wanted. As a result, Chant was in and out of prison during 1999/2000, but when out of prison spent much time in the company of the offender and Wrenn.
7. From time to time Smith and Chant lived with the offender and Wrenn in their home in Alvis Avenue. Then in late September 2000 the offender and Wrenn moved to a local authority flat at 8 Guywright House,  Thorpe le Soken, Essex.   This was a one bedroom flat in poor condition and it was allocated to them because they were homeless. At that stage Wrenn was pregnant and expecting a baby in December 2000.  The offender was the father.  Very soon after they moved in, Chant moved in with them.
8. There were two cupboards in the flat. From about 1 October 2000 Chant was confined for varying lengths of time in one or other cupboard.   The offender said in interview that this was at the instigation of Smith, as a punishment for Chant sniffing the knickers of Wrenn which Chant had found in a drawer in either 8 Guywright House or in the former home in Alvis Avenue.  Smith denied that allegation and the jury rejected the offender’s version. (There was conflicting evidence on whether Chant had, in fact, ever been caught sniffing Wrenn’s knickers).  It is clear from the jury’s verdict that the offender instigated the imprisonment, although it was always intermittent.  It is also clear (from evidence that was called by Smith) that the offender had a habit of confining people.  These people included girlfriends, at least one boy,  and also a young man whom the offender wanted to punish for alleged wrongs against him.
9. The offender had previously got accomplices to take Chant to a field where a hole was dug for him.  Chant was put in the hole for the night with threats that he would be buried alive if he offended  Sullivan in future.
10. At some stage in early October 2000 the offender constructed a small “box” inside one of the two cupboards at 8 Guywright House.  This “box” measured 3 feet by 3 feet and was about the same height.   From about 10 October 2000 Chant was confined in this “box” for large parts of the day and at night.   In order to fit in it Chant had to bend double and crouch.   He had no freedom of movement at all. The evidence was that when Chant was kept in the “box” the door would often be kept shut by various devices, although on occasions the door was left ajar. Chant was not permitted to come out to use the lavatory, so the “box”, as well as Chant, became increasingly soiled and smelly.
11. On 10 October 2000,  Smith also moved into the flat. It is clear from the evidence and the jury’s verdict that the offender forced both Wrenn and Smith to stay at the flat and to do his bidding all the time. He made them guard Chant, who was denied both food and drink by the offender.  The offender also forced Smith and Wrenn not to give food and water to Chant, although they did so when Sullivan was not present. The offender continued to deny Chant the opportunity to use any washing or lavatory facilities in the flat.
12. A midwifery assistant called to see Wrenn on 10 October 2000 and saw Chant in the living room.  He was buy then very emaciated and looked very ill.
13. On 26 October 2000 Chant was subjected to an interrogation in the flat by the offender, which Sullivan ordered Smith to record on video. The interrogation was about Chant’s alleged “offence” of sniffing Wrenn’s knickers. The video shows that, by then,  Chant was in a pitiful condition.  However,  it is also clear (from the video and other evidence) that Chant’s will had been so completely broken that when he was ordered to go back into the “box” by the offender he did so without having to be forced into the confined space.
14. Over the weekend of 28/29 October 2000 Chant was confined to the “box” for all or parts of those days.   He was left in the “box” overnight on 29/30 October. On the following day, Monday, 30 October,   the offender, Smith and Chant were due to give evidence in a case at Chelmsford Crown Court concerning an alleged assault on the offender earlier in the year.  However,  the offender had decided that Chant should not go. The evidence of Smith was that he opened the cupboard door on the Monday morning and discovered that Chant was dead. The evidence of Wrenn was that Chant was found dead in the “box” on Tuesday 31 October. This dispute on the time of Chant’s death was never resolved but was not essential to the case against the offender.
15. The evidence of the forensic pathologist, Mr Heath, was that Chant had died of starvation and dehydration. He also stated that even if Chant had been dying of starvation and dehydration before 26 October, the incarceration of Chant in the cupboard and the further deprivation of food and rink would have hastened his death.
16. At some time after 31 October 2000 the offender taped up the cupboard with Chant’s body inside it. Eventually on 18 November 2000, Smith escaped from the flat and made an anonymous 999 call to the police.   On 19 November 2000 the police broke into the flat and discovered Chant’s body. The offender and Wrenn were arrested on 20 November 2000.  Smith surrendered himself to the police the same day.
17. It was clear from the evidence that the offender tortured Chant from (at least) the time Chant came to stay in the flat at 8 Guywright House in early October 2000. The offender was responsible for incarcerating Chant; depriving him of food and drink and subjecting him to utter humiliation and degradation by forbidding him to wash or use the lavatory in the flat so that Chant had to soil both himself and the tiny “box” in which he was forced to live and sleep. The offender forced Wrenn and Smith (who it was accepted are of very low intelligence) to fall in with his plans by threatening them or their families with violence.   He also effectively forced them to stay in the flat.   In my opinion the physical and mental degradation that the offender inflicted on the victim Chant cannot be overestimated.
18. The offender showed no feelings throughout the 6 week trial, in which there were many occasions of high emotion,  particularly when former girlfriends of the offender gave evidence (on behalf of Smith and Wrenn) that they had been dominated, ill treated and humiliated by the offender.   The offender showed no remorse nor indeed any emotions after the verdicts or when being sentenced.
19. The offender has made written representations in respect of setting the minimum term.  I have read them.   In paragraph 3 it is stated that the offender reiterates that he was not the main perpetrator of the offence.   I must reject that,  given the jury’s verdicts,  which were in accord with the evidence at the trial.
20. In deciding on the appropriate order as to the minimum term the offender should serve, pursuant to section 269(2) of the CJA,  I must have regard to the matters set out in section 269(3) and (5) of the CJA,  and the general principles set out in Schedule 21  of that Act.   Also,  because in this case the murder was committed before the CJA  came into force on 18 December 2003 and the provisions of paragraph 6  of Schedule 22 apply,  I must apply paragraph 8 (a)  of Schedule 22 of the Act. 
21. Paragraph 8 provides:
“In dealing with a reference under paragraph 6,  the High Court –
(a) may not make an order under subsection (2) of section 269 specifying a part of the sentence 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 as mentioned in paragraph 2(a),  ..”
22.    The words “…which…  under the practice followed by the Secretary of State before December 2002,  the Secretary of State would have been likely to notify as mentioned in paragraph 2(a)…”,   appear in paragraph 8 of Schedule 22 and also paragraph 10,  which applies to cases where,  after the CJA came into force, the court has to pass a  sentence fixed by law (such as a life sentence for murder),  in respect of an offence committed before the Act came into force.   The problem with the words  “under the practice of the Secretary of State” is that there are no written indications of the practice of the Secretary of State in relation to setting minimum terms in the period before December 2002.    
23. In the case of R v Sullivan and others [2004] EWCA Crim 1762,   the Court of Appeal Criminal Division indicated what is meant by  the words quoted.  The Court held that the purpose of the words is to avoid an offender having a minimum term determined that offends the requirements of Articles 5 and 7.1 of the European Convention on Human Rights,  given the force of law in the United Kingdom by the Human Rights Act 1998.   The aim is to ensure that when a minimum term is set pursuant to paragraph 5 and 6 of Schedule 22 of the CJA,  no longer minimum term will be imposed than would have been capable of being imposed at the time that the offence was committed:   see paragraph 23 of the judgment of the court by Lord Woolf CJ.
24. Lord Woolf went on to say that the best guide to the Secretary of State’s practice prior to December 2002 was contained in three Practice Statements that were issued by  Lord Bingham of Cornhill,  (Lord Woolf’s predecessor as Lord Chief Justice) and by Lord Woolf CJ himself. The first was contained in a letter dated 10 February 1997 which was addressed by Lord Bingham to all judges who had to make recommendations for minimum terms in murder cases.   The second was a Practice Statement handed down on 31 May 2002 by Lord Woolf.   That followed an Advice given by the Sentencing Advisory Panel on 15 March 2002.   
25. In the case of Sullivan,  Lord Woolf stated that, although there appear to be differences in the guidance given by those two Practice Statements,  their general effect is the same.  The reason for apparent differences is that the later Statement is more specific and detailed than the earlier one. Both give the judge a considerable degree of discretion:  see  paragraph 34 of  Lord Woolf’s judgment.
26. A third Practice Statement was set out in a letter dated 16 December 2003,  which was sent by Lord Woolf CJ to all judges who had to determine minimum terms under the CJA.  This was, of course, very shortly before the provisions of the CJA on minimum terms came into force on 18 December 2003.    The effect of the judgment of Lord Woolf in Sullivan is that the letter of 16 December 2003 should not be used as evidence of the practice of the Secretary of State as at December 2002 in respect of offences committed after May 2002:  see paragraph 42 of the judgment.
27. Finally,  in Sullivan,  the Court concluded that if the principles set out in Schedule 21 of the CJA were properly applied,  then those principles and the Practice Statement of May 2002 would produce broadly similar results:   see paragraph 41 of the judgment.   But if an application of the principles in Schedule 21 would result in a higher minimum term than the application of the principles set out in the May 2002 Practice Statement,  then paragraph 8 (or where appropriate paragraph 10) of Schedule 22 of the Act requires that the May 2002 Practice Statement be used to arrive at the minimum term.  That will result in a minimum term which will either be the same or shorter than the minimum term calculated using Schedule 21:  see paragraph 43 of the judgment.
28. In accordance with the provisions of paragraphs 6 and 7 of Schedule 22  of the CJA 2003,  in making an order under section 269 (2)  of that Act as to the minimum term that the offender must serve before the early release provisions will apply,  I must have regard to several factors.  First I must consider the seriousness of the offence:   section 269(3)(a).   (As the offender did not plead guilty,  section 269(3)(b)  does not apply).   In doing so, I must have regard to the general principles set out in Schedule 21  of the CJA:  see section 269(5) and paragraph 7 of Schedule 22.    Secondly,  I must have regard to the recommendation made to the Secretary of State by me,  as the trial judge and the recommendation made by the Lord Chief Justice as to the minimum term to be served by this offender before release on licence:   paragraph 7 of Schedule 22  of the CJA.   Thirdly,  I must not make an order under section 269(2)  specifying a minimum term which in the opinion of the court is greater than would have been notified by the Secretary of State under his practice before December 2002.   In that regard,  I must consider the guidance given in the Practice Directions of Lord Bingham and Lord Woolf,  which I have referred to above.  Lastly,  having arrived at a minimum term by this process,  I must deduct from it the time spent on remand by the offender.
29. I consider first the seriousness of the offence and the general principles set out in Schedule 21 of the CJA.    First,  I have to decide what the “starting point” for the minimum term should be in this case.  This case does not fall within paragraph 4(1) of Schedule 21.   I have considered carefully whether this is a case within paragraph 5(1).   It is arguable that the murder of Justin Cant involved “sadistic conduct”  by the offender:  see paragraph 5(2)(e) of Schedule 21.    However,  I have decided that,  although there were indications that the offender obtained pleasure by his ill - treatment of Justin Cant,  there is insufficient evidence to place this murder firmly in that category.  
30. Therefore the “starting point” in this case, for the purposes of Schedule 21,   must be 15 years. 
31. Next I have to consider the aggravating and mitigating factors,  in accordance with paragraphs 8 to 11 of Schedule 21.    As to aggravating factors,  in my judgment  there are the following aggravating factors in this case:
i) the victim,  Justin Chant,  was particularly vulnerable because of his disability by virtue of his very low intelligence,  which meant that he was particularly susceptible to being totally dominated by the offender, as indeed he was.
ii) The offender inflicted enormous mental and physical suffering on the victim before his death. That was imposed over a long period of time.  It consisted of the confinement to the cupboard and then the box;  the denial of food and water;  the denial of any sanitary arrangements and the threat of being buried alive in a field.    I regard these facts as  constituting a very serious aggravating feature.
iii) The offender used duress against the co – defendants Smith and Wrenn to facilitate the commission of the offence.  They were forced to take part in the confinement of Chant and they were forced to deny him food and drink.  They were more or less prisoners in the flat with Chant, although not to the extent that he was.  
iv) After Chant had died,  the offender taped up his body in a cupboard in the flat.  The body was concealed in this way from 31 October 2000 until it was found by the police in a decomposed state on 18 November 2000.
32. There are no mitigating factors in this case.   In particular,  I am satisfied that the offender intended to kill Justin Chant.  I am also satisfied that the acts of the offender leading to the death of Justin Chant were premeditated.    There is no evidence that the offender suffered from any mental disorder or mental disability which would lower his degree of culpability.
33. With the starting point of 15 years,  taking all these aggravating factors into account,  I would have arrived at a figure for a minimum term of 24 years,  if I was following the guidance set out in Schedule 21  of the CJA 2003.    The additional 9 years above the starting point are made up as follows:  2 years for factor (i) above;   3 years for factor (ii);  2 years for factor (iii) and 2 years for factor (iv). 
34. However I have to take account of the recommendations that I made to the Secretary of State,  as modified by the Lord Chief Justice.   He reduced my recommendation of 24 years to 20 years.    I must also take into account the representations made on behalf of the offender.  In paragraph 5 of those representations,  it is submitted that the court should follow the recommendation of Lord Woolf in this case,  because his recommendation had firmly in mind the need for both retribution and deterrence.  It is submitted that a minimum term above that figure would be manifestly wrong.
35. I would be inclined to stick to my original recommendation,  but having reviewed the facts again and taking into account the Lord Chief Justice’s views and the representations,  I would reduce the figure to 22 years. 
36. Next I have to consider whether a figure of 22 years would be greater than the practice of the Secretary of State before December 2002.   Because this murder was committed before 31 May 2002,  to do this I must consider the 1997 Practice Direction of Lord Bingham in particular.  (See: Practice Direction (Criminal Proceedings:  Consolidation) paragraph IV.49.17).  Lord Bingham’s “starting point” was 14 years for a so – called “normal” or “unexceptional” murder.  This case was plainly no such thing.  It was an horrific crime.  None of the mitigating factors that Lord Bingham identified are applicable in this case.   Of the aggravating factors  specifically identified by Lord Bingham,  I note in particular the third and last in the list.  Those are “evidence of sadism,  gratuitous violence or sexual maltreatment,  humiliation or degradation before killing”;   and “macabre attempts to dismember or conceal the body”.  They obviously apply in full measure this case.
37. However,  judges giving recommendations for minimum terms were not confined to the particular aggravating matters that are identified in Lord Bingham’s list.   In my view I am entitled also to take into account as aggravating factors the fact that the victim was particularly vulnerable because of his very low intelligence; and the fact that the offender used duress to force Smith and Wrenn,  his co – defendants,  to facilitate in the commission of this offence.     I regard this case,  as I did at the time I gave my recommendations to the Secretary of State,  as one which came within Lord Bingham’s category of a crime that called for a minimum term “well in excess of the norm”.  (See:  The Practice Direction para IV.49.20).
38. In my judgment all those aggravating factors could have resulted in the Secretary of State deciding to notify the offender that the minimum term that he was to serve was one of 24 years.   In this regard,  I note that in the case of Sullivan,  the court stated that there was evidence that the Secretary of State did on a number of occasions,  increase the recommendations of the Lord Chief Justice in the case of the most grave offences:   see paragraph 41 of the judgment.   I regard this as one such case.     However, I must recognise that the Secretary of State would have considered very carefully the recommendations made by the Lord Chief Justice as well as my own recommendation.   Taking all factors into account,    I have concluded that the minimum term that the Secretary of State would have been likely to notify under the practice that he followed before December 2002 would have been one of 22 years.
39. Therefore I set the minimum term to be served at 22 years.  From that figure I must deduct the time that the offender spent on remand in custody in connection with this offence.  That period was 12 months and 26 days.   Therefore the net minimum term is set at 20 years and 339 days.


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