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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 2346 (QB)

Case No: 2004/445 /446/MTS

Royal Courts of Justice
Strand, London, WC2A 2LL

Date:  18 October 2007


Before :

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Between :

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                            Raffaele Esposito
                           Sean Jackman 

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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.




Mr Justice Royce :
1. On 20th December 2002 at Liverpool Crown Court following a trial before me the defendants were convicted of murder and sentenced to life imprisonment.
2. Under schedule 22 of the Criminal Justice Act 2003 their cases require determination of the minimum term each must serve before the early release provisions of section 28 (5) to (8) of the Crime Sentences Act 1997 can apply.
The facts
i) The defendant Jackman worked as a doorman at a nightclub in Southport. On the evening of 18th June 2002 Perry and Hagan (the two deceased) were staying with McIlhenny, a friend of the defendant Esposito, at 6 Derby Road. They went to a nightclub where Perry and Hagan chatted with Esposito’s sister and girlfriend. Their behaviour angered Esposito.
ii)  Shortly before 2.00 am Esposito told his girlfriend to accompany the deceased in a    taxi back to 6 Derby Road. He recruited his close friend Jackman to help him attack the deceased. They went to 6 Derby Road where the deceased were in a drunken and defenceless state. They were subjected to an attack of the most extreme brutality. Hagan received twelve head injuries including several skull fractures; numerous injuries to legs, trunk and arms including defensive injuries. His left testicle was completely blackened by a severe blow.
iii)  Perry received twenty-eight head and neck injuries including several skull fractures. His head had been driven down into the spine. The pathologist said the head injuries were of such severity as normally to be seen only in high-speed motorcycle crashes. He had numerous injuries to his trunk, legs and arms. There was a series of parallel knife wounds on the face and on the arms. Some defensive injuries.
iv)  Blood was all over the walls and ceiling. Both deceased had been extensively urinated on although it was not possible scientifically to determine who had done this. A third defendant (Sammon) who was acquitted of murder arrived at a stage when the men appeared to him to be dead but Jackman was still swinging a baseball bat.
v) The evidence overall pointed to an initial attack designed to cause maximum pain and no doubt humiliation where Esposito wielded the baseball bat, followed by a discussion between Jackman and Esposito as to whether they should finish them off. Esposito admitted to Sammon that one of the deceased had been on his knees begging for his life.  Although it is not entirely clear who wielded the baseball bat when most of the fractures were caused it was clear to me that both were party to the decision to kill.  The attack lasted on the evidence a minimum of 20 minutes and was probably spread over a longer period.  There was evidence of sounds, moaning, crying and hitting over the 20 minute period.
vi) Jackman, Esposito and Sammon made off. Jackman and Esposito went to London before returning to the Southport area. Jackman disposed of most of his clothing. He maintained in interview he was with his girlfriend throughout. Esposito made a no comment interview. At trial it was their case that Sammon had killed the men. Esposito accepted he had initially attacked them with the bat because his sister had told him when he arrived at 6 Derby Road that the men had become over familiar with their hands. He denied that his attack was in any way causative of the deaths. He had served a first defence statement which implicated Jackman in the initial attack. However, a second defence statement was served on his behalf, which sought to exculpate Jackman completely.
The relevant guidance at the time of sentence
3. As these murders were committed after 31st May 2002 and before 18th December 2003 the relevant guidance is to be found in the Practice Statement handed down on 31st May 2002.  That statement replaces the previous single normal tariff  of 14 years by substituting a higher and a normal starting pointing of respectively 16 (comparable to 32 years) and 12 years (comparable to 24 years).  Those starting points then had to be increased or reduced because of aggravating or mitigating factors such as those referred to below.  The guidance is set out in amendment number 8 to the Consolidated Criminal Practice Direction (Mandatory Life Sentences) from 49.23 to 49.33.  The higher starting point of 15/16 years applies in cases where the offenders culpability was exceptionally high or the victim was in a particularly vulnerable position.  49.26 sets out characteristic features of such specially serious cases and of relevance here are:-
i) There was evidence of sadism, gratuitous violence or sexual maltreatment, humiliation or degradation of the victim before the killing;
j) Extensive and/or multiple injuries were inflicted on the victim before death
k) The offender committed multiple murders.
4. 49.28 specifies amongst aggravating factors:-
a) The fact that the killing was planned
c)  Arming with a weapon in advance
5. 49.32a provides that “a substantial upward adjustment may be appropriate in the most serious cases, for example, those involving a substantial number of murders, or if there are several factors identified as attracting the higher starting point present.  In suitable cases, the result might even be a minimum term of 30 years (equivalent to 60 years) which would offer little or no hope of the offenders eventual release.  In cases of exceptional gravity, the Judge rather than setting a whole life minimum term, can state that there is no minimum period which could properly be set in that particular case.” 

The recommendations of the trial judge
6. I recommended a minimum term of 19 years in each case.  There was no recommendation made by the Lord Chief Justice.  
7. On behalf of Jackman it is pointed out that he only had two previous convictions one for assault and one for being drunk and disorderly.  It is contended that there is a further mitigating factor namely that Jackman was asked by his co-defendant Esposito to help him.  In the context of this case I do not regard that as any mitigation at all.  It is contended that the recommendation of 19 years is excessive.
8. Esposito has made written representations in which he expresses disgust at the part he played and refuting the suggestion that he recruited Jackman or took part in any urination over the deceased.  On his behalf representations are made that the minimum term should be within the 15 to 19 year bracket.
Victim impact statements
9. I have read the victim impact statement from the sister of Paul Hagan and from the sister of Francis Perry.  They both underline the trauma and grief caused by these murders.
The minimum term under schedule 21
10. I have to consider what the minimum term would have been had the murders taken place after the Criminal Justice Act 2003 had come into force.  Because there were two murders which involved a degree of sadistic conduct there is a strong argument that the appropriate starting point would be a whole life order.  On any view under schedule 21 the minimum term would not have been less than 30 years.
My determination
11. I have to bear in mind that the minimum term that I set must not be greater than that under the practice followed by the Secretary of State before December 2002 was likely to have set.  In my judgment it is likely he would have adopted the recommendation.  It is apparent that this is lower than the minimum term that I consider would be appropriate under schedule 21.  I am not legally entitled to specify that higher figure.  This is a truly terrible case and I am wholly unpersuaded there should be any reduction from the 19 years I previously recommended.  That is the term I set.  The time spent in custody on remand of 5 months 25 days in each case has to be deducted from that term. 
12. It is of particular importance in this case that the public understands that the setting of the minimum term does not mean that a defendant will be released once that term is served.  His case will have to be considered by the Parole Board and it is if, and only if, the Parole Board concludes that it is safe for a defendant to be released that he will be.

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