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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 2113 (QB)
  Case No: 2005/74/MTR



Date: 23rd Ooctober, 2007



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Criminal Justice Act, 2003, Schedule 22
 Judge’s Order under Section 269






McKinnon, J :
1. I am required by Section 269 (3) of the Criminal Justice Act 2003 to set such minimum term as I consider appropriate taking into account the seriousness of the offence. In arriving at that minimum term, there are four steps which I am required to take as the murder here was committed before 18th December 2003.
2. The facts are taken from the trial Judge’s report to the Home Secretary.   In the early hours of 12th October 1996 the defendant went to look for his estranged girl-friend.  The defendant saw two men at the home of a close woman friend of his girl-friend.  It seems that the defendant jumped to the erroneous conclusion that one of the men had a relationship with his girl-friend.  The defendant attacked this man viciously, using his fists and kicking him.   One blow knocked the man to the ground with such force that his skull was fractured.  This was the fatal injury from which he died together with the inhalation of vomit.  There were a number of areas of injury on the deceased, the most serious being a blow above the left ear: this was consistent with kicking which caused another fracture to the head.  The deceased had been seriously disabled before the attack upon him as a result of severe rheumatoid arthritis.  The defendant’s defence of self-defence was rejected by the jury.  The defendant was born on 15th January 1965.
3. The first step is to choose one of three starting points, whole life, 30 years or 15 years. In my judgment, it is appropriate to take the starting point of 15 years.   That is because this case falls within the category of an offence, the seriousness of which is neither exceptionally high nor particularly high within paragraphs 4 (1) or 5 (2) of Schedule 21 to the Criminal Justice Act 2003.
4. The second step is to take account of any aggravating or mitigating factors which would justify the departure from the starting point of 15 years.  There are no aggravating features.  I do not consider that it would be right in this case to increase the starting point by reason of the suggestion that the defendant attacked a defenceless man.  The mitigating features are that there was an intention to cause serious bodily harm rather than to kill and a lack of premeditation.  I would reduce the starting point by three years to take account of those matters.
5. The third step is to deduct from the starting point of 12 years the precise time that the defendant spent on remand in custody.  That is 7 months and 19 days.   So, I arrive at a proposed minimum term of 11 years and 132 days.
6. The fourth step is to check whether that proposed term is greater than the term which the Secretary of State would probably have notified under the practice followed by the Secretary of State before December 2002.  Where, as here, the murder was committed before 31st May 2002, the best guide as to what would have been the practice of the Secretary of State is the letter sent to Judges by Lord Bingham, CJ on 10th February 1997. I note that on 22nd February 1999 the defendant’s tariff was set at 14 years.  Following the practice of Lord Bingham, I take as the first step the period actually to be served for the “average”, “normal” or “unexceptional” murder as 14 years.  The next and final step is to look at the factors capable of mitigating the normal penalty and the factors likely to call for a sentence more severe than the norm.   Here, the aggravating and mitigating factors are as set out in paragraph 4 which reduces the normal penalty by three years.  I arrive at the figure of 11 years.
7. Accordingly, I set the minimum term that the defendant must serve before Parole Board can consider his release on licence as one of 11 years.  That minimum term is the minimum amount of time the defendant will spend in prison, from the date of sentence, before the Parole Board can order early release.  If it remains necessary for the protection of the public, the defendant will continue to be detained after that date.   Where the defendant has served the minimum term and the Parole Board has decided to direct release, the defendant will remain on licence for the rest of his life and may be recalled to prison at any time.

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