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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: [2008] EWHC 277 (QB)

Case No: 2004/195/MTS
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 29/02/2008

Before :

THE HONOURABLE MRS JUSTICE COX DBE
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TERENCE JOHN ABBOTT

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SETTING OF MINIMUM TERM SCHEDULE 22 PARA 6
CRIMINAL JUSTICE ACT 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.


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THE HONOURABLE MRS JUSTICE COX DBE


 
Mrs. Justice Cox  DBE

DECISION
 
1. The early release provisions are to apply to this Applicant as soon as he has served a term of 16 years’ imprisonment minus 9 months and three days, namely the period spent in custody on remand before conviction and sentence.
REASONS FOR DECISION
2. On the 6th March 2002 at the Norwich Crown Court, before Mr. Justice Curtis and a jury, Terence Abbott (the Applicant), whose date of birth is 5th September 1948, was unanimously convicted of the murder of his former wife, Lorraine Baldwin, and was sentenced to life imprisonment.
3. On the same day Curtis J. recommended to the Home Secretary that the actual length of detention necessary to meet the requirements of retribution and general deterrence for the offence was 16 years.  On 23rd March 2002 the then Lord Chief Justice, Lord Woolf CJ, agreed with the trial judge’s recommendation.  No minimum term has been set by the Home Secretary, who has referred the Applicant’s case to the High Court for the making of an order under section 269 of the Criminal Justice Act 2003.
4. The Applicant has submitted written representations to which are appended various documents.  Many of them relate to the various courses he has completed whilst in prison and to evaluation and assessment of his progress.  There is no statement from the victim’s family.
5. The Applicant has not requested an oral hearing.
6. I have considered carefully all the written representations, assessments and reports referred to above.  I have had regard in addition to the sentencing remarks and the report of the trial judge.  Further assistance as to the background is to be found in the decision of the Court of Appeal Criminal Division dated 10th February 2003 [2003] EWCA Crim 543, when refusing the Applicant’s application for leave to appeal against conviction.
7. Pursuant to s.269 and Schedule 22 to the Criminal Justice Act 2003, in considering the seriousness of this offence I have had regard to the general principles set out in Schedule 21 and the recommendation made to the Home Secretary by the trial judge as to the minimum term.  I have also had regard to the effect of credit for the time that the Applicant spent in custody on remand.  Further, pursuant to Schedule 22(8)(a) of the 2003 Act, the term set must not be greater than that which, under the practice which existed before December 2002, the Home Secretary would have been likely to set.  This offence was committed before 31st May 2002 and I have therefore had regard, in this respect, to the letter of Lord Bingham CJ dated 10th February 1997, set out at paras IV.49.18 – 21 of the Practice Direction dated 29th July 2004. 
8. The relevant facts are these.  The Applicant married Ms. Baldwin in 1980.  They had four children who, in 2001, were aged between 19 and 8.  The marriage was stormy and, in 1999, they divorced.  The Applicant had custody of the children and some contact was maintained.
9. The evidence relied on by the prosecution included a recording of a telephone conversation between the Applicant and Ms. Baldwin said to have taken place in August 2000.  The man referred to as “Terry” was heard clearly to be threatening to set fire to her.  There was also evidence from a daughter and her partner that they heard the Applicant make a similar threat.  Another witness heard him say that if he could not have Lorraine Baldwin, then no one else would.
10. There was, for a short time, a reconciliation between them but, on 16th April 2001, this broke down and Ms. Baldwin left the Applicant again.  On 19th April the Applicant drove to the home of his former mother-in-law, where Ms. Baldwin was staying.  In the boot of his car he had a red 5 litre can of petrol which he had filled that afternoon.
11. There was an argument between them and it was common ground at the trial that Ms. Baldwin showed that she wanted no further contact with the Applicant.  She and her mother left the house and went to their car.  As they did so the Applicant fetched the full petrol can out of his car and threatened Ms. Baldwin with it, saying “This is for you.”  The Applicant accepted at trial that the purpose of taking the petrol can out of the car was to threaten Ms. Baldwin.
12. Ms. Baldwin and her mother then drove off with Ms. Baldwin driving.  The Applicant, as he accepted, followed close behind.  When they stopped the Applicant drew alongside them, preventing Ms. Baldwin from opening the driver’s door.  Both women got out of the passenger door leaving the door open and the engine running.  They made for safety in a relative’s house but, before they could get there, the Applicant, taking the petrol can out of this his car, grabbed Ms. Baldwin, threw her on the ground, poured petrol on the front of her coat and lit it.  Ms. Baldwin ran into the house in a ball of flames.  Someone rolled her in the back garden to put out the flames but the burns to her body were so extensive that on 5th May 2001 she died.
13. Almost as soon as he had set her alight the Applicant drove off, leaving the petrol can behind, now with only one litre still inside.  A neighbour switched off the engine of Ms. Baldwin’s car.  The Applicant drove to his daughter’s house telling her that he had done what he said he was going to do, namely set her alight.  The police were called after he then drove to his sister’s house.
14. At trial there were two issues to be determined by the jury.  Firstly, when he poured petrol over Ms. Baldwin and set it alight, did he intend to kill her or cause her really serious harm?  Secondly, was he or may he have been acting under provocation.  The Applicant said that he had lost control after Ms. Baldwin sneered at him before she left her car.
15. By their unanimous verdict the jury clearly rejected provocation and were sure that the Applicant had the requisite intent for murder.
16. Considering, first, the position under the sentencing provisions of the Criminal Justice Act 2003, this case does not fall within paragraph 4 (1) of the Schedule 21.  The seriousness of this offence cannot, having regard to paragraph 4, be regarded as “exceptionally high”.  Nor, in my judgment, having regard to paragraph 5, can it be said to be “particularly high”.  Whilst the trial judge described the burning as “sadistic”, he was referring to what he described in his sentencing remarks as “unbelievably cruel” behaviour, rather than to any sexual motive and, as such, this crime could be regarded as not falling within paragraph 5 (2) (e) so as to merit, for this crime, the higher starting point of 30 years on that ground alone.
17. The Applicant was over 18 when he committed the offence and the appropriate starting point, if convicted after 18th December 2003, would therefore be 15 years.
18. There were however a number of serious aggravating features.  Previous threats had been made, including a threat to set fire to Ms. Baldwin, indicating a significant element of premeditation.  The attack upon her was carried out whilst she was trying to flee from the Applicant and in a public and residential area.  Further, the trial judge was right to describe this as an unbelievably cruel thing to do.  The nature of this attack was particularly brutal and abhorrent and Ms. Baldwin would have suffered a great deal of pain before she died.
19. The Applicant, in his written representations, contends that the trial judge was wrong to describe this as a “determined planned attack” which aggravated the crime.  In my view however, having heard the evidence the judge was entitled to conclude that this was a planned attack, having regard in particular to the previous threats, and that in the circumstances it was a determined attack.  The judge stated that “The jury rejected his evidence [that] she sneered at him (one facial gesture only) before he doused her in petrol” and found that there was nothing sufficiently serious in the past to justify any of his conduct, let alone the method of killing her which he chose.  I agree.  None of the statutory mitigating factors is present.  In my judgment, the act of pouring petrol over Ms. Baldwin and setting it alight entitled the judge to conclude that there was here an intention to kill and that there was, given the previous threats, a significant element of premeditation.  I can identify no element of provocation short of that which would provide a defence.
20. The remaining representations relate to the Applicant’s good progress in prison, to his good behaviour, his remorse, and to a reduction in the level of risk posed by him.  I have seen the references referred to and I accept that they present an encouraging picture for this Applicant.  They do not, however, come anywhere near to showing the highly exceptional progress which must be shown in order for progress in custody to result in a reduction of the appropriate custodial term.
21. Having regard to all these matters, I am entirely satisfied that under the present sentencing structure the Applicant would have received a minimum term in excess of 20 years.
22. The practice of Lord Bingham, as set out in his letter of 10th February 1997, was to take 14 years as the period actually to be served for the “average”, “normal” or “unexceptional” murder.  None of the mitigating factors he identified applies in this case.  Of the factors he listed as likely to call for a sentence more severe than the norm, the elements of pre-meditation, sadism and the brutal nature of the attack upon Ms. Baldwin as she tried to get away from the Applicant, apply so as to call for a sentence more severe than the norm.  The aggravating features mean, in my judgment, that a term of 16 years’ imprisonment is entirely justified.  I will however order that the period spent in custody on remand before conviction and sentence should be subtracted from that term in order to give the term which must be served by this Applicant before the early release provisions apply.

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