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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 2669 (QB)

Case No: 2004/372/MTS

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION


Sheffield Crown Court
50 West Bar, Sheffield, S3 8PH


Date: 8 November 2006 

 

Before:

THE HONOURABLE MR JUSTICE BEATSON
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 R 
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 BRYAN MCLEISH 

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Neither party was represented


Hearing dates: 26 - 30 April 2002
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Approved Judgment


 
Mr Justice Beatson:
1. On 30 April 2002 at the Central Criminal Court Bryan Mcleish (hereafter “the applicant”), then aged 31, was convicted of murder and was sentenced to life imprisonment.  The period of imprisonment recommended by the trial judge to meet the requirements of retribution and deterrence was 16 years.  On 6 July 2002 the Lord Chief Justice stated he regarded 16 years as the appropriate minimum. 
2. This matter comes before me pursuant to section 276 and schedule 22 paragraphs 5 and 6 of the Criminal Justice Act 2003 (hereafter “the 2003 Act”), to determine the minimum term following which the early release provisions referred to in Schedule 22 are to apply to him and his case can be considered by the Parole Board.  This is my determination of that minimum term. For the benefit of the applicant, I set out the matter in some detail bearing in mind the provisions of paragraph 12 of Schedule 22 of the Act which requires me to give my reasons in ordinary language.
3. I have considered the representations and material submitted to the court on the applicant’s behalf, together with the guidance set out in Practice Direction (Crime: Mandatory Life Sentences) (No 2) [2004] 1 WLR 2551 (hereafter “the Practice Direction”).  That guidance reflects the judgment in Sullivan, Gibbs, Elener and Elener [2004] EWCA Crim 1762 as how to ensure, as section 276 and schedule 22 of the 2003 Act require, that the minimum period for sentences where the offence was, as the applicant’s offence was, committed before 18 December 2003 does not breach the principle of non-retroactivity. 
4. The family of the deceased were asked whether they wish to make a statement.  While the family indicated an intention to submit a statement, none has been received.  As I understand to be the usual practice in these cases, no representations have been submitted to me by the Secretary of State.
5. Paragraph 11 of Schedule 22 of the 2003 Act provides that the application is to be decided without an oral hearing.  In this case no application for an oral hearing has been made and I have concluded that this is one of the many cases (see R (Hammond) v Secretary of State for the Home Department [2005] UK HL 69) in which fairness does not require an oral hearing.
The Background
6. The circumstances of the offence are described by the trial judge, HHJ Focke QC as follows:
“The defendant was double crossed by the victims in relation to the importation of cocaine from Jamaica.  He, with others, sort to exact revenge by shooting the first victim, Mr Scott, and torturing the second victim, Mr Samuels, by the application of boiling water and hot objects to his skin followed by the repeated tightening and relaxing of a belt around his neck until death ensued.  The body was thereafter deposited in Epping Forest.”

7. There were no medical considerations before the court.  The trial judge commented as follows on the applicant’s dangerousness and likelihood of re-offending:-
“Both murders were drug related and revenge killings.  The second victim was tortured.”

8. It was in view of these comments that the Lord Chief Justice stated that he agreed with a recommendation of a minimum term of 16 years.
The Statutory Regime
9. Paragraph 6 of schedule 22 to the 2003 Act applies to a prisoner serving a mandatory life sentence who has not been notified by the Secretary of State of a minimum period ("the tariff") which in his view should be served before the prisoner is released on licence and whose term has not expired.  It provides that the Secretary of State must refer the prisoner’s case to the High Court, and that the High Court must determine the prisoner’s minimum period.  The significance of the minimum period is that it is only thereafter that the Parole Board can direct the prisoner's release on licence assuming first that the Secretary of State has referred his case to the Board, and secondly that the Board is satisfied that it is no longer necessary for the protection of the public that he should be confined: see section 28(5)-(8) of the Crime Sentencing Act 1997. 
10. Paragraph 7 of schedule 22 provides that, in considering the seriousness of the prisoner’s offence and determining the minimum period, the High Court must have regard to the matters mentioned in section 269(5) and to any recommendation made to the Secretary of State by the trial judge or the Lord Chief Justice as to the minimum period.  Paragraph 8 establishes a ceiling for the minimum terms based on the practice of the Secretary of State prior to December 2002.  Section 269(5) of the 2003 Act provides:
"In considering…..the seriousness of an offence (or the combination of an offence and one or more offences associated with it, the court must have regard to -

(a) the general principles set out in Schedule 21, and
(b) any guidelines relating to offences in general which are relevant to the case and are not incompatible with the provisions of Schedule 21."

11. The general principles involved in determining the minimum term set out in Schedule 21 can be identified from the three starting points set out in paragraphs 4 to 6 of Schedule 21, the direction in paragraph 8 that, having chosen a starting point, the court should take into account any aggravating or mitigating factors to the extent that it has not allowed for them its choice of starting point, and the provision in paragraph 9 that consideration of these factors may result in a minimum term of any length, whatever the starting point, or a whole life order.
12. The first of these starting points is a whole life order.  Paragraph 4(1) provides that this is the appropriate starting point where the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is exceptionally high, and the offender was aged 21 or over when he committed the offence.  Paragraph 4(2) provides that cases that would normally fall within paragraph 4(1) include-
"(a)  the murder of two or more persons, where each murder involves any of the following –
(i)   substantial degree of premeditation or planning,
(ii) the abduction of the victim, or
(iii) sexual or sadistic conduct,
(b)   the murder of a child if involving the abduction of the child or sexual or sadistic motivation,
(c) a murder done for the purpose of advancing a political, religious or ideological cause, or
(d) a murder by an offender previously convicted of murder.”

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13. The second starting point is a period of 30 years.  Paragraph 5 (1) provides that this is the appropriate starting point if the case does not fall within paragraph 4(1) but the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is particularly high, and the offender was aged 18 or over when he committed the offence.  Paragraph 5(2) provides that cases that would normally fall within paragraph 5(1) include:-
"(a)  the murder of a police officer or prison officer in the course of his duty,
(b) a murder involving the use of a firearm or explosive,

(c) a murder done for gain (such as a murder done in the course or furtherance of robbery or burglary, done for payment or done in the expectation of gain as a result of the death),
(d) a murder intended to obstruct or interfere with the course of justice,
(e) a murder involving sexual or sadistic conduct,
(f)  the murder of two or more persons,
(g) a murder that is racially or religiously aggravated or aggravated by sexual orientation, or
(h) a murder falling within paragraph 4(2) committed by an offender who was aged under 21 when he committed the offence.”

14. The third starting point is a period of 15 years.  Paragraph 6  provides that this is the appropriate starting point if the offender was aged 18 or over when he committed the offence and the case does not fall within paragraph 4(1) or 5(1).
15. Paragraphs 10 and 11 set out a number of matters that may be relevant to the offence of murder as aggravating and mitigating factors.  Paragraph 10 provides that aggravating factors (additional to those mentioned in paragraph 4(2) and 5(2)) that may be relevant to the offence of murder include:
"(a)  a significant degree of planning or premeditation,
(b) the fact that the victim was particularly vulnerable because of age or disability,
(c) mental or physical suffering inflicted on the victim before death,
(d) the abuse of a position of trust,
(e) the use of duress or threats against another person to facilitate the commission of the offence,
(f)  the fact that the victim was providing a public service or performing a public duty, and
(g) concealment, destruction or dismemberment of the body.”

16. Paragraph 11 provides that mitigating factors that may be relevant to the offence of murder include –
"(a)  an intention to cause serious bodily harm rather than to kill,
(b) lack of premeditation,
(c) the fact that the offender suffered from any mental disorder or mental disability which (although not falling within section 2(1) of the Homicide Act 1957 (c. 11)),  lowered his degree of culpability,
(d) the fact that the offender was provoked (for example, by prolonged stress) in a  way not amounting to a defence of provocation,
(e) the fact that the offender acted to any extent in self-defence,
(f)  a belief by the offender that the murder was an act of mercy, and
(g) the age of the offender”

17. The use of the word “include” in paragraphs 10 and 11 make it clear that the matters set out do not define what may be an aggravating or mitigating factor and are in this sense only illustrative.
The guidance
18. Paragraph IV.49.17 of the Practice Direction, reflecting the judgment in Sullivan, Gibbs, Elener and Elener, states that the best guide as to what the Secretary of State's practice would have been where the offence was committed before 31 May 2002 is the letter sent by Lord Bingham CJ to Judges on 10 February 1997.  In that letter it is stated that the period to be served for what is described as the average, normal or unacceptable murder is 14 years.  That letter also sets out factors his Lordship considered to be capable of mitigating or aggravating the offence (see also the Practice Direction IV.49.18-21).
The grounds upon which this application is made
19. It is submitted on behalf of the applicant that the minimum term of 16 years recommended by the trial judge should not be exceeded.  The applicant’s representatives have also given information about the applicant’s behaviour while in detention which they submit should be considered in conjunction with the circumstances of the offence.  In relation to the torture of the second victim they submit that there is no suggestion that this applicant actually carried out any specific act of violence against Mr Samuels.
The decision in this case
20. The first question for me in determining the applicant’s minimum term is whether there is a justifiable basis for differing from the recommendation of the trial judge and the Lord Chief Justice.  My conclusion on this first question can be shortly stated.  It is wholly unarguable that 16 years is too long.  I note that, if this case came for sentence today, the starting point pursuant to paragraph 6 of Schedule 21 would be a whole life order. Moreover, prior to the implementation of the Criminal Justice Act 2003, since this was an offence committed before 31 May 2002, following the Practice Direction, 14 years is to be taken as the period to be served for the ‘average’, ‘normal’ or ‘unexceptional’ murder.  This was significantly more serious than such a murder and the sort of case in which the Home Secretary might not have followed the recommendations.  Even by the then contemporary standards a tariff of 16 years could be considered low.  Lord Bingham CJ recognised that some crimes "will certainly call for terms well in excess of the norm".
21. There are no mitigating factors in this case.  The aggravating factors are that the applicant murdered two persons.  Each murder involved a significant degree of premeditation and planning.  The second murder involved the abduction of the victim and sadistic conduct towards him.  Moreover, the body of the second victim was deposited in Epping Forest.  Four of the eleven factors listed by Lord Bingham CJ as likely to call for a sentence more severe than the norm are present in this case.  The factors considered in the submissions on behalf of the applicant under mitigating factors are not mitigating factors.  The first two are simply statements that a factor which would otherwise be an aggravating factor is not present.  The third and the fourth are not matters which are listed as mitigating factors that may be relevant to the offence of murder in the 2003 Act or in the guidance contained in the Lord Bingham CJ’s letter to judges.  But for the time which has passed since the recommendations were made I would have been minded to set a minimum period of 20 years.
22. In the circumstances in which the applicant has for 4 years had a clear indication that the view of the judiciary is that the appropriate minimum period is 16 years I have concluded that I should not set a minimum higher than 16 years.  Accordingly, the appropriate minimum period which the applicant must serve before the early release provisions are to apply to him is 16 years.  From that period is to be deducted the period of remand in custody, namely 7 months.  For the avoidance of doubt, the minimum period is unaltered, save for the deduction of the period served whilst on remand.

 


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