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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 748 (QB)

Case No: 2004/397/MTS

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 27/04/2007

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Setting of minimum term schedule 22 para 3 of Criminal Justice Act 2003

Trial dates: 22 Sep – 9 Oct 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.



1. The Secretary of State has, pursuant to paragraph 6 of Schedule 22 of the Criminal Justice Act 2003 (the 2003 Act), referred the case of this offender to the High Court for it to make an order under sub-section (2) or (4) of section 269 of the 2003 Act concerning the minimum term to be served before any question of the offender’s release on licence can be considered.   The Court is required to make an order which it considers appropriate, taking into account the seriousness of the offence and the effect of any direction which it would have given under section 240 of the 2003 Act (crediting periods of remand in custody) if it had sentenced him to a term of imprisonment.   In considering the question of seriousness regard has to be given to the general principles set out in Schedule 21 of the 2003 Act.   Furthermore, by virtue of paragraph 7 of Schedule 22 of the 2003 Act the Court, in considering the seriousness of the offence, has to have regard to any recommendation made to the Secretary of State by the trial judge or the Lord Chief Justice and, by virtue of paragraph 8 of Schedule 22, the Court may not make an order for a minimum term longer than that which, under the practice followed by the Secretary of State before December 2002, the Secretary of State would have been likely to notify pursuant to paragraph 2(a) of Schedule 22.   Furthermore, in order to comply with that paragraph and with Article 7 of the European Convention on Human Rights the Court has to have regard to the guidance issued by respective Lord Chief Justices.   The relevant guidance is contained in the letter of Lord Bingham of Cornhill CJ dated 20 February 1997 and Practice Statement (Juveniles: Murder Tariff (2000 1WLR 1655).
2. Marvin Gittens stood trial at Leeds Crown Court between 22 September 2003 and 9 October 2003 for the murder on 7 February 2003 of Mathew Onyett.   He was found guilty of murder by a majority of 10-2 and on 9 October 2003 he was sentenced to life imprisonment.   His co-defendant, Jermaine Andrew Ellison, also faced a charge of murder but was convicted by the jury of manslaughter on the basis of lack of intent in a joint enterprise.   Ellison was sentenced to 8 years imprisonment, a sentence which was upheld on appeal.
3. The trial judge made a recommendation in respect of tariff of 12 years in a report to the Home Secretary dated 9 October 2003.   The Lord Chief Justice did not make any recommendation.   The victim’s family has been invited by the probation service to submit a victim impact statement but has not responded and so there is none for me to consider.   The offender has made written representations through his solicitors Howard Cohen and Co in letters dated respectively 2 June 2004, 13 October 2004 and 1 November 2005.
4. The facts as found by the trial judge, reflected in the conviction by the jury, are that the defendant, with his friend and co-defendant Ellison, was offended by the conduct of the deceased, who was also a friend, in a bar in central  Leeds.   The offender left the area with his co-defendant and returned 45 minutes later armed with a large knife.   The judge concluded that it was to seek out the deceased.   Ellison was armed with a club.   They found the deceased in the street and attacked him with their weapons.   The defendant inflicted four stab wounds, one in the chest and three in the back, two of the stab wounds to the back were fatal.   The force necessary was described as severe.   The offender raised before the trial court the issues of self defence and defence of his friend, no intention to do serious harm and no intention to cause harm at all.   Before the Court of Appeal Criminal Division, on appeal against conviction, the offender sought to argue that the judge should have left provocation to the jury.   The Court of Appeal rejected that contention but in the course of so doing accepted that, prior to the offender leaving the scene in order to get a knife, the deceased had conducted himself violently in the bar which included physical assault and threatening and brandishing a knife and that at the time he was killed the deceased was similarly engaging in some provoking words or behaviour and was brandishing a knife.   However, the Court of Appeal concluded the trial judge had been correct in not leaving the issue of provocation to the jury because there was no evidence, whether direct, indirect or circumstantial, to suggest that the offender lost his self control and, accordingly, that an essential element, necessary for provocation to be a matter which the jury should consider, was absent.   Accordingly, there was no obligation on the judge to leave provocation to the jury.
5. The trial judge identified the following aggravating factors namely: that he armed himself with a weapon; he sought out the deceased; and attacked him.   The trial judge identified the following mitigating factors.   It was border line whether he intended to kill or simply cause serious harm, there was some, earlier, non technical provocation from the deceased who had a similar record of previous convictions to the defendant.    In sentencing the offender the trial judge had said amongst other things
“You, Marvin Gittens, armed yourself with a large knife, you went looking for him and you found him and when you did you attacked him with the knife when I am quite satisfied he was partially disabled and bent over.   You had already stabbed him in the chest and you stabbed him three times in the back, two of which were deep fatal blows.   You have in my judgment shown no remorse and tried to avoid the responsibility for what you did.”
6. The written representations on behalf of the offender have sought to take issue with the findings of fact by the judge in respect of whether the offender deliberately sought out the deceased having armed himself with a knife and whether he showed no remorse.   In my judgment I am obliged to take as established the trial judge’s findings of fact which were reflected in his sentence remarks, though I also take into account the elements of provocative conduct which the trial judge found were present and which the Court of Appeal Criminal Division also found had been present.
7. The starting point is Schedule 21 of the Criminal Justice Act 2003.   In my judgment the starting point for the minimum term is 15 years.   In terms of Schedule 21 the only aggravating feature which is present is a significant degree of planning or premeditation as reflected in the fact on the findings of fact by the trial judge the offender deliberately went off, armed himself with a lethal weapon and then went looking for the deceased.   Mitigating factors identified in Schedule 21 which are present in this case are the question whether there was an intention to cause serious bodily harm rather than to kill, where the judge found that the evidence was equivocal, and the fact that the offender was provoked in a way not amounting to a defence of provocation.   In my judgment, having regard to both the starting point and to the respective aggravating and mitigating features, an appropriate minimum term to be fixed under the 2003 Act would be one of 13 years.   I have to bear in mind, however, that I am precluded from fixing any minimum term longer than that which it is likely the Secretary of State would have fixed under his practice at the relevant time.   I am satisfied that the likelihood is that the Secretary of State would have notified a minimum term of 12 years as recommended by the trial judge.   Furthermore there has to be deducted from the minimum term to run from the date of sentence the time which the offender has spent in custody on remand which I am informed is six months.
8. Accordingly the minimum term which I fix is one of 11½ years.   


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