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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: [2007] EWHC 354 (QB)

Case No: 2004/33/MTS
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 8th March 2007

Before :

MR JUSTICE WALKER
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Application by STEVEN BRIAN MILBOURNE for the setting of a minimum term under the Criminal Justice Act 2003, schedule 22, paragraph 3:

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Revised Judgment As Approved by the Court

The judgment handed down by me earlier this morning contained an error in paragraph 14. This revised judgment corrects that error.

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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MR JUSTICE WALKER


 
Mr Justice Walker :
 
1. On 27 May 1999 at Worcester Crown Court, after a trial before His Honour Judge Mott and a jury, the defendant was convicted of murder of Athina Sidhu, assault occasioning actual bodily harm, and cruelty to a child. He was sentenced to life imprisonment for murder with a recommendation that a minimum of 15 years be served before release. For the offences of assault occasioning actual bodily harm and cruelty to a child the defendant received concurrent sentences of 18 months’ imprisonment and 9 months’ imprisonment respectively.  Under paragraph 6 of schedule 22 to the Criminal Justice Act 2003 his case has been referred for the court to determine his minimum term. These are the reasons for my decision on that application.
2. The circumstances of the offence, as set out in the trial judge’s report to the Home Secretary, were as follows:
“The victim was 15 months when the defendant (D) killed her. Her mother formed a relationship with, and subsequently lived with, D. Victims father had been violent to the mother who sought refuge from him in a hostel during which time she met D. D is single and his social life centred upon heavy drinking. Mother said he was bad tempered with the child but other witnesses (and mother herself in earlier statements) record the child as being apparently fond of him and relating well to him and he to her. Both adults used to leave the child in the flat while they went out drinking. This they did on the day she died – from 9am -6.30 pm when D returned on his own leaving mother in the pub. It was on that visit that he somehow caused a cut to her eyebrow – probably losing his temper while beginning to change her or while giving her a drink. He spent some time cleaning up blood and returned to the pub where he delayed telling mother about the injury. They both subsequently returned to the flat and took child to hospital where no more serious injuries were detected. They both returned to the pub with the child and then to the flat. D was the worse for drink. At some time during the night, for reasons and in circumstances which will never be precisely known unless and until he admits what he did, he picked her up, shook her violently and banged her head on more than one occasion against some solid surface and then left her – she suffered s subdural haemorrhage and sever diffuse brain injury causing swelling of the brain, and died during the night. Mother called an ambulance at 10 am. Both adults told false stories about the day before, partly to conceal the leaving of the child alone all day. In interviews D blamed the mother, saying he had seen her dropping the child on its head onto the floor. His defence at trial was the same.”
3. The issue before the court were whether it was the Defendant or Athina’s mother who had caused the fatal injuries. 
4. In determining the minimum to be served by the applicant, I have directed myself by reference to the provisions of schedule 22 to the 2003 Act, in particular paragraphs 6 to 8. In assessing the seriousness of the offence I am required to have regard to the general principles set out in schedule 21 and to the recommendations made to the Secretary of State by the trial Judge and the Lord Chief Justice as to the minimum term to be served.
5. I have taken into account the Home Office’s file, including representations made by and on behalf of the applicant.
6. The life imprisonment minimum terms section has advised me that it has not been possible to obtain a transcript of defence counsel’s mitigation and the judge’s sentencing remarks.
7. The trial judge duly recommended a minimum period of 15 years, commenting:
“In 1985 D was convicted of assault occasioning actual bodily harm upon the 2 year old daughter of his partner. During the present trial a subsequent partner, Maxine Thompson, gave evidence that in 1989 he had assaulted her 17 month old daughter by throwing her about and holding her upside down out of a window. The strong likelihood is that the jury accepted this. The evidence was given convincingly and sincerely. No report was made to the police.
D has been convicted of other dissimilar offences of violence most recently in 1992.
He is in my view a man with a temper which he often cannot or will not control, who has himself described it as ‘uncontrollable’. This temper has now been vented upon 3 very young girls within the home. Both Miss Thompson and the mother in the present case have alleged that he was violent also to them. The danger which his temper presents therefore seems to manifest itself most critically in these domestic situations. It is a danger which is closely related to his excessive drinking. He will remain dangerous until these two defects in his character and behaviour have been eliminated.

Bearing in mind his antecedents, lack of any frankness or remorse, that the child was utterly defenceless and had undoubtedly looked to him (together with her mother) for care and protection, I recommend a tariff period of 15 years.”
8. The Lord Chief Justice agreed with this recommendation.
9. A request has been made by the defendant’s solicitor that there be an oral hearing. Such a hearing would only be appropriate in the most exceptional circumstances. In part the defendant’s solicitor’s representations deal with the question of risk. That is not a matter for me in relation to the minimum term. In relation to factors potentially to the setting of the minimum term, I do not consider that this case is exceptional. I consider that the minimum term can be set fairly and justly without an oral hearing, and I decline the request for such a hearing.
10. In terms of schedule 21, the Defendant was aged over 18 when he committed the offence and the case does not in my view fall within paragraph 4(1) or 5(1). It follows that the appropriate starting point, in determining the minimum term, is 15 years. Aggravating factors identified in paragraph 10 of the schedule and relevant to this particular case are the fact that the victim was particularly vulnerable because of age, mental and physical suffering inflicted on the victims before death, and the abuse of the position of trust. A further matter which causes concern is that the Defendant was in 1985 convicted of assault occasioning actual bodily harm upon the young daughter of his then partner. This occurred some 14 years before the present offence. I do not have sufficient information about it to enable me to accord it any significant weight as an aggravating factor.
11. As to mitigating factors, I accept that there was no intention to kill. However, by the jury’s verdict this is a case where there was intention to cause serious bodily harm. The defendant maintains his assertion that he did not intend to harm Athina. That assertion is inconsistent with the jury’s verdict. I also accept that there was a lack of premeditation, and that the Defendant has expressed deep and genuine remorse. The representations from the Defendant’s solicitor and from the Defendant himself have described his traumatic childhood. This, too, is a mitigating factor. Taken together, I consider that these mitigating factors balance the aggravating factors, and indeed would warrant a small deduction form the starting point. This conclusion would have led me to set the minimum term at 14 years. However, by paragraph 8(a) of schedule 22 the minimum term may not be 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. The best guide to this is the letter sent to judges by Lord Bingham CJ on 10 February 1997, which uses a starting point of 14 years. The factors identified by Lord Bingham would, for similar reasons to those given earlier, have led to a slight reduction from the starting point. Accordingly, I consider that the Secretary of State would have been likely to have notified a term of 13 years. It follows that I must come down to a minimum term of 13 years for that reason.  I turn to consider what, if any, further deduction from that figure is appropriate.
12. Although it appears that the defendant has made good progress in prison, he cannot be said to fall within the category of exceptional progress that might justified some reduction in the minimum term (see R v Caines [2006] EWCA Crim 2915).
13. I am required by s 269(3) of the Criminal Justice Act 2003 to take account of the effect of any directions which would have been given under s 240 (crediting periods of remand in custody) if the defendant had been sentenced to a term of imprisonment.  In my view there is no reason why the time spent by the defendant in custody on remand should not count towards the minimum period to be served by the defendant. In order to produce that result, it is necessary to deduct it from the otherwise appropriate minimum term.
14. Accordingly, the specified period is one of 13 years reduced by 6 days.


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