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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: EWHC [2008] 808 (QB)

 


Case No: 2004/967/MTR
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

 

Royal Courts of Justice
Strand, London, WC2A 2LL


Date: 24/04/2008

Before :

MR JUSTICE DAVID CLARKE
- - - - - - - - - - - - - - - - - - - - -

APPLICATION BY GRAHAM DAVID ASHBERRY FOR THE REVIEW OF A
MINIMUM TERM PURSUANT TO PARAGRAPH 3, SCHEDULE 22 OF
THE CRIMINAL JUSTICE ACT 2003

 

DECISION

 


Mr Justice David Clarke: 

1. On 10 December 1997, in the Crown Court at Manchester before Sachs J and a jury, the Applicant, Graham David Ashberry, was convicted of murder and was sentenced to detention for life.  Mr Ashberry was 19 years of age having been born on 9 January 1978.
2. At the same time Mr Ashberry was convicted of an associated count of attempted robbery, and of an offence of robbery committed on an earlier occasion.  The details appear in the report of the trial judge, which I set out in paragraph 8 of this judgment.
3. On 2 December 1998 Mr Ashberry’s renewed application for leave to appeal against his conviction was refused by the Court of Appeal (Criminal Division) (Rose LJ V-P, Rougier and Johnson JJ).
4. Pursuant to section 276 and Schedule 22 Paragraph 3 of the Criminal Justice Act 2003 (“the 2003 Act”), Mr Ashberry has applied for a review of the minimum term following which the early release provisions referred to in Schedule 22 are to apply to him.  This is my determination of that application. 
5. For the purposes of my decision, I have considered the representations and material submitted to the court on his behalf, together with the guidance set out in Practice Direction (Criminal Proceedings: Consolidation), para IV.49 (as substituted by Practice Direction (Crime: Mandatory Life Sentences) (No 2), [2004] 1 WLR 2551, set out in Archbold, Criminal Pleading Evidence and Practice, 2008, paragraph 5-251
6. Paragraph 11 of Schedule 22 of the 2003 Act provides that the application is to be decided without an oral hearing.  In Regina v. Secretary of State for the Home Department ex parte Hammond [2006] 1 All E.R.219, the House of Lords upheld the decision of the Divisional Court which reviewed this provision and concluded that it did not exclude the possibility of an oral hearing in those cases in which the Judge considered such a hearing was required although it described the prospect as “rare”.   Mr Ashberry has not applied for an oral hearing and I do not consider that one is required.
7. I understand to be the usual practice in these cases, no representations have been submitted to me by the Secretary of State. I am told that no representations have been made by or on behalf of the victim’s family.
The Offence and the Notified Tariff
8. The facts of the offence appear from the report of the trial judge in these terms: 
“On 25 February 1997 this Defendant together with two others, one of whom was acquitted, raided a Post Office on an estate in Greater Manchester.  One man carried a pick axe.  This defendant carried a gun and he held and threatened one of the female shop assistants.  They stole £2,600 in cash.  Subsequently on 10 March 1997, but two doors away, this Defendant and another who was acquitted of murder but convicted of attempted robbery, at 9.50 pm entered the shop, and threatened an elderly man who worked there.  The deceased who owned the shop came out from the stock room and armed himself with a machete type knife.  The other Defendant fled but this Defendant remained even though he could have fled and fired three shots.  One missed the victim who was grappling with this Defendant.  He fired another shot which went into the victim’s head killing him and thereafter this Defendant fired a further shot which went into the ceiling.”
9. Mr Ashberry denied being at the scene of either robbery and sought to advance an alibi. 
10. Mr Ashberry had a number of previous convictions for relatively minor offences of assault and public order offences, but had not served any custodial sentences.
11. The comments of the trial judge on the case generally and on the factors to be taken into account by the Home Secretary when considering release were as follows:
“The Defendant has a number of previous convictions involving cases of violence or disorderly conduct.  He had never previously been to detention.  Clearly he had ready access to guns notwithstanding his youth and is very likely to reoffend coming from a culture in which guns are all too frequently used.  The deceased was a very popular local figure and the killing caused very considerable publicity in the area.”
12. Sachs J expressed the view that the actual length of detention necessary to meet the requirements of retribution and general deterrence for the offence in was 18 years.
13. The Lord Chief Justice, Lord Bingham of Cornhill commented:
“This offence plainly calls for a very long sentence, despite the youth of the offender which appears to be the only mitigating feature. Because of this feature I would recommend a slightly shorter term, of 16-17 years, but I do not think any shorter term would mark the gravity of the offence.”
14. On 4 February 1998 the Home Office disclosed the recommendations both of Sachs J and Lord Bingham CJ to Mr Ashberry and invited representations.  No representations were made in response to this invitation.
15. On 16 February 2000, Mr Ashberry was notified that the Home Secretary had decided to set the minimum term to be served at 18 years.  This notification was a accompanied by a statement of reasons,  summarising the facts of the case and going on:
“The Secretary of State does not accept that a tariff of 16 years or 17 years, as recommended by the Lord Chief Justice, is sufficient to satisfy the requirements of retribution and deterrence for your offence.  He has attached weight to the fact that you carried a loaded firearm during the course of a robbery.  He has also attached weight to the trial judge’s comment that you could have fled when the shop owner appeared (as your co-defendant did) but that you chose not to do so.  The Secretary of State has had regard to your having taken part (with two others) in an attempted robbery of a Post Office in which you carried a gun and threatened a female assistant.  He notes that you were convicted of attempted robbery in respect of this incident and sentenced to a term of 13 years detention.
“Having regard to all the circumstances of your case, the Secretary of State has concluded that a tariff of 18 years is necessary to satisfy the requirements of retribution and deterrence for your offence.”
16. In support of the present application for review of the minimum term, written representations are made by Messrs Robert Lizar, solicitors now acting on behalf of Mr Ashberry.  I return to those representations later in this judgment.
17. Prior to his sentence, Mr Ashberry spent 8 months and 12 days on remand in custody. His notified tariff therefore expires in March 2015.  The question is whether, having regard to the terms of the 2003 Act, it is now appropriate to reduce the minimum period with the result that the date from which his release can be considered will fall earlier in time. 
The law
18. It is not necessary to set out in this judgment the terms of the statutory regime which I am required to consider.  The process which I am required to undertake was considered in detail by the Court of Appeal in R v Caines; R v Roberts [2007] 2 All ER 584, [2006] EWCA Crim 2915.   Paragraphs 38 and 39 of the judgment of Sir Igor Judge P summarises the judge’s task as follows: 
“[38] We must draw some disparate threads together.  The transitional provisions create an unusual responsibility for a judge.  He has to decide the application by assessing the seriousness of the offence in the context of the statutory guidance in Sch 21, whilst simultaneously looking back to judicial recommendations made when a variety of different sentencing regimes existed, without addressing precisely what they were.  Certainly he is not confined to and would be misdirecting himself if he simply replaced the original minimum term fixed by the Secretary of State with the original judicial recommendation.  In any event the trial judge and Lord Chief Justice may have recommended different tariff periods.  He is not conducting an appeal from the judicial recommendations, or the decision of the Secretary of State, nor passing sentence as such.  Nevertheless although he did not preside over the original trial, his decision will impact directly on the date when the prisoner may be released on licence.  Plainly the process is properly identified as a review, but it is not a judicial review in the formal sense.  Paragraph 14(1) of Sch 22 describes the process as a decision and creates a process for appeal to the Court of Appeal Criminal Division, or indeed reference by the Attorney General.  In view of its characteristics, and the nature of the process, the decision should be treated as a sentencing decision.
“[39] Given the structure of Sch 22, it would be inappropriate for the judge to approach the review as if he were required to assess and then apply whatever he thought would have been the judicial tariff at the time when the original sentenced was imposed.  To the extent that Gibbs J approached his decision in Roberts  in this way, we would disagree with him.  However even if he did, the result would have been more rather than less favourable to Roberts.  In our judgment Sch 22 is not so confined.  It expressly requires the judge to address the guidance in Sch 21.  Sentencing practice or standards current at the time of sentence are properly reflected in the views expressed by the trial judge, and in particular, the Lord Chief Justice, who would have made his recommendation in each individual case in the context of his overall responsibility for making a recommendation in every such case.  Between them, these provide sufficient material for the reviewing judge to take account of contemporary standards when the original recommendation was made.”
Representations
19. It is submitted by Mr Ashberry’s solicitors that the minimum term recommended by the Lord Chief Justice, namely 16 to 17 years, should be preferred to the period of 18 years recommended by the trial judge and set by the Home Secretary. 
20. Mr Ashberry’s background is described; he was a black child brought up by white adoptive parents with whom he had a close and loving relationship.  He had suffered racist bullying in his childhood.  He was talented in music and sought the company of like-minded young people of his own ethnic origin in the Moss Side area of Manchester.
21. A number of mitigating circumstances are put forward.  There were no offences on his record for the previous two years.  The discharge of the firearm was not premeditated but was done in panic.  Mr Ashberry’s young age was not sufficiently taken into account.  Though he continued to deny the offence, he had some feelings of empathy with the deceased.
22. Reliance is also placed on numerous reports and other written material setting out the good progress and behaviour of Mr Ashberry whilst serving his sentence. 
The Appropriate Minimum Period
23. For the purposes of this case, it is sufficient to list the criteria in Schedule 21 to appreciate that, had this case fallen to be sentenced today, it is inevitable that the starting point would have been 30 years.   This was a murder involving the use of a firearm in the course of a robbery. 
24. I have little doubt that some discount from 30 years would have been made on account of Mr Ashberry’s youth, but at the age of 19 not very much.  (See Peters [2005] 2 Crim App R (S) 101).  The judge would have had regard also to the serious aggravating factor constituted by the earlier armed robbery in which the gun was carried but not discharged.
25. Thus, the minimum period under the 2003 Act would have been very substantially in excess of the period of 18 years, with the result that paragraph 3(1)(a) applies prohibiting the minimum period to be set on this review from exceeding the notified minimum term.  Accordingly, the only question for me is whether there is any proper basis for reducing the minimum term from 18 years to the 16 or 17 years suggested by the Lord Chief Justice.
26. I can find no such basis.  That recommendation was made long before the enactment of, and accordingly without regard to, the starting-points contained in Schedule 21 of the Act.  On the other hand, as Caines establishes, in this review I am required to have regard to those starting-points in addition to all other relevant considerations.   This is an element in the process which the written representations do not address.
27. As to the mitigating circumstances now relied on, I do not find that they carry much weight.  The suggestion that the gun was fired in panic and without premeditation is of little weight when the gun was carried loaded and ready for use.  There is nothing in the submissions which could justify going below the notified period of 18 years.
28. Therefore, subject to the issue of exceptional progress in custody, I am satisfied that I cannot properly reduce the notified minimum period.
Subsequent Progress
29. It is contended on behalf of the applicant that his good progress in prison custody should be taken into account in support of a reduction in the minimum term.  The 2003 Act does not refer to this as a factor to be taken into account, although that is not determinative.  In Regina v. Secretary of State for the Home Department ex parte Cole [2003] EWHC Admin 1789, prior to the passing of the Act, Rose LJ considered (at paragraph 88) that if the legislation were to be enacted as then contemplated, it was “inconceivable, in human terms” that exceptional progress in prison would not be taken into account.
30. In order for that progress to be taken into account, however, the progress has to be exceptional.  Rose LJ said (at paragraph 5):
“Such exceptional circumstances might include, for example, a prisoner whose tariff had not long to run who displays exceptional bravery in preventing the death or serious injury of a member of staff or fellow prisoner, or in preventing the spread of fire which would have otherwise caused extensive damage or loss of life.”
In relation to the case which he was then before the court, Rose LJ did not consider that a prisoner who was part of the Listeners’ Scheme, had done considerable work on his offending behaviour, showed significant remorse and who was working four days a week outside the open prison in which he was detained and one day on an Open University degree course in prison had shown himself to be sufficiently exceptional to require his progress to be taken into account when determining his tariff.
31. This issue was considered in detail by the Court of Appeal in Caines at paragraphs 40-53 of the judgment of Sir Igor Judge P.   In summary, the Court concluded that exceptional progress in prison may be taken into account in reduction of the fixed minimum term, but it must be truly exceptional.   Paragraphs 52 and 53 of the judgment are as follows: 
“[52] From this statement, it is possible to discern some clear features.  Good behaviour is not enough to constitute exceptional progress.  We agree that the standard should be very high: the progress must be exceptional, outstanding, and bearing in mind that it provides the basis for a reduction in a period fixed for the purposes of punishment and deterrence, so it should be.  Even where the necessary high standard is reached, the impact on the total tariff period is likely to be very modest.  The longest reduction so far has not exceeded two years, and in the significant majority of cases where exceptional progress has been established, the reduction has been for one year.  It also appears, and logically it is plain, that such progress falls to be considered when the minimum period of coming towards its end.  Finally, it is a prerequisite to any reduction that the risk assessment should be favourable.
“[53] In future, when the court is considering whether exceptional progress has been made, it would be helpful for the information to include the observations from the governors (or the governor’s representative) of the last two prisons in which the offender was serving his sentence. The information should not merely be directed to the governor’s overall view of the progress of the individual offender, but should also provide assistance on how that progress should be assessed by comparison with other similar prisoners.  Furthermore, the court should be provided with a satisfactory risk assessment.  Evidence of remorse, if genuine, may tend to confirm that the level of risk posed by the prisoner has been reduced to negligible levels, but its absence is simply one factor to be taken into account in the risk assessment.  At the same time those responsible for the assessment should bear in mind that an intelligent or manipulative life prisoner may appear to have made exceptional progress when, in reality, he represents a continuing danger.”
32. Against that analysis of the circumstances in which it may be appropriate to make a reduction in the minimum term, I turn to Mr Ashberry’s progress in prison.   I have read all the material put before me and note that after some early minor setbacks he has matured and his conduct and attitude have been good.  This, however, is the good progress that it is to be hoped (even if not expected) that all mandatory life prisoners achieve and will certainly stand him in good stead when his release comes to be considered in due course by the Parole Board.  However, no exceptional feature of the type visualised by Rose LJ or by Sir Igor Judge P is suggested, and I find none.
 Conclusion
33. In the circumstances, I determine that the appropriate minimum period which Mr Ashberry must serve before the early release provisions are to apply to him is 18 years.  From that period is to be deducted the period of remand in custody, 8 months 12 days.  The minimum period determined as required by Schedule 22 of the 2003 Act is, therefore, 17 years 3 months 18 days.  For the avoidance of doubt, the minimum period is unaltered and expires in March 2015.


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