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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 989 (QB)

Case No: 2004/655/MTS

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 17/05/2007

Before : 

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Between :

 Regina Claimant
 - and - 
 David Wilkinson Defendant

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Mr C Prince (instructed by Crown Prosecution Service) for the Crown
Mr D Robson QC (instructed by Tait Farrier Graham Solicitors) for the Defendant

Hearing dates: 13th October 2003
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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.




Mrs Justice Rafferty, DBE :
1. On 13th October 2003 David Wilkinson pleaded guilty to the murder on 1st January 2003 of Paul McHale and was sentenced by the Recorder of Newcastle to life imprisonment.  Born on 27th July 1980 he was at sentence 22.  The Recorder recommended a minimum term of eleven years.
2. The defendant’s case has been referred to the High Court under S269 Criminal Justice Act 2003.  The term set, under S269(2) must not exceed that which in the opinion of the court the SSHD would have been likely to set in the practice adopted before December 2002.  The minimum term is that period of years which the defendant must spend in custody before he may be considered by the Parole Board for early release.  Even if the Parole Board should decide upon an early release the defendant will for the rest of his life remain on licence, vulnerable to recall at any stage.
3. S 269(3) obliges the court to take account of the seriousness of the offence and of the effect of credit for time spent in custody on remand (S 240).  In considering the seriousness of the offence the court must have regard to the general principles set out in Schedule 21 of the Act, that is those applicable to defendants sentenced after its commencement date, 18th December 2003, to any relevant guidelines, and to any recommendation by the Lord Chief Justice and/or the sentencing judge as to the minimum term.
4. This murder having been committed after 31st May 2002 but before 18th December 2003 the court applies the Practice Direction of 31st May 2002 as contained in paragraphs IV.49.23-33 of that issued 29th July 2004.  The normal single tariff of 14 years was replaced by a higher (16) and a normal (12) starting point.  These are emphatically no more than starting points and must then be increased or reduced because of aggravating or mitigating factors such as those referred to in the PD.
5. The starting point of 12 years normally involves the killing of an adult arising from a quarrel or loss of temper between two people known to each other.  Exceptionally it may be reduced if the defendant’s culpability is significantly reduced for example since the case neared the borderline between murder and manslaughter, or the defendant suffered a mental disorder or disability which lowered the degree of his responsibility or he was in a non-legal sense provoked or overreacted in self-defence or his was a mercy killing.  Such factors could justify a reduction to between 8 and 9 years.
6. The 16 year starting point will apply when the defendant’s culpability was exceptionally high or the victim particularly vulnerable.  Features showing either or both include the killing being for gain in the course of a robbery or burglary, racially aggravated, one in which extensive and/or multiple injuries were inflicted before death, or multiple murders.  The starting point may be variable either way, upward if for example the killing were planned, there were use of a firearm, the defendant armed himself/herself in advance, concealed the body, or particularly if there is a background of domestic violence, when the murder was the culmination of a chronicle of cruel and violent behaviour over time, and in certain instances the defendant’s having previous convictions.  The term may be mitigated by the intention having been to cause grievous bodily harm rather than to kill, by spontaneity rather than premeditation, age, clear remorse and a timely plea of guilty.
The facts.
7. The defendant was said to be bisexual.  For some two years before the killing he had maintained an homosexual relationship with Stanley Silver and they had shared a flat.  The victim, Paul McHale, had also had an homosexual relationship with Silver in the past and at the time of his death was living in the flat shared by Silver and the defendant.  On 31st December 2002 all three had been drinking during the day though at different places.  In the early hours of 1st January 2003 the defendant, Silver and a man named Mcdonald were in the latter’s flat where some turbulence between the first two led to the summoning of the police.  By the time officers attended things had calmed.
8. All three then adjourned to Silver’s flat and at about 0430 McHale arrived.  All four were extremely drunk.  The case for the Crown was that the defendant was angry, an emotion left over, as it were, from the earlier agitation.  McHale was told of it.  The defendant then attacked him with a kitchen knife stabbing him several times, one blow penetrating the heart.  He died quickly.  The defendant threw the knife from the window.
9. In interview he answered no questions but proffered a prepared statement in which he conceded the death but claimed self-defence.
10. The mitigating features are the absence of an intention to kill, the spontaneity of the attack, and, as Lord Bingham described, the not uncommon violent quarrel between two homosexuals inflamed by drink, here involving an overreaction in self-defence.  The starting point is thus twelve years.  I see no reason to depart from the recommendation of the Recorder of Newcastle and agree that the minimum term is eleven years, a figure I consider the SSHD likely to have adopted.  Under the current regime the starting point would be 15.
11. Deducting time spent on remand the net minimum term is ten years two months and twenty days.


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