Minimum terms
High Court setting of minimum terms for mandatory life sentences under the Criminal Justice Act 2003
Neutral Citation Number: [2006] EWHC 2671 (QB)
Case No: 2004/342/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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PETER GRAHAM AIREY
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Neither party was represented
Hearing dates: 29 April - 9 May 2002
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Approved Judgment
Mr Justice Beatson :
1. On 9 May 2002 at Northampton Crown Court Peter Graham Airey (hereafter “the applicant”), then aged 29, 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 12 years. On 20 June 2002 the Lord Chief Justice stated he agreed with the trial judge's recommendation of 12 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 for the purpose of the review of tariff but have declined contact with victim support services. 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 Julian Hall as follows:
“Having failed to attend Peterborough Crown Court in answer to bail for sentence in respect of dishonesty offences the applicant obtained lodgings with the deceased, a divorced woman who lived on her own who, on the evidence, was lonely and welcomed the applicant into her home. She soon trusted the applicant to the extent that she allowed him to withdraw money for her from ATM machines. He began to steal money from her account. When the deceased discovered what he had been doing she changed the PIN for her cash card. The applicant almost certainly discovered that she had done this and at sometime over the weekend of 11/12 February 2001 he attacked her in the hallway of her home with a hammer and killed her. The fatal injuries were fractures to her skull, which were extensive. He then cleaned the house to conceal what he had done and hid the body in an outhouse beneath garden implements. The next morning he committed the first in a series of offences of dishonesty, selling the deceased's property and emptying her bank account. He fended off enquiries made by neighbours and relations about the deceased's absence with lies and two months later after a visit by the police who did not discover the body fled to Wolverhampton. He maintained in interview and at trial that he had returned late one night to find the deceased had been battered to death and was so afraid of being arrested from the outstanding warrant that in his panic he decided to hide the body and behave in the way the prosecution had proved. The trial judge stated that the circumstantial evidence that he was the killer was very strong indeed.”
7. The trial judge commented as follows on the applicant’s dangerousness and likelihood of re-offending:-
“The defendant was something of a "Walter Mitty" character, very weak and prone to exaggerate his competence and previous life experiences. Even during his giving evidence he showed to be a compulsive and at times irrational liar. The psychiatric report, which had been prepared showed no evidence of mental illness. He had no convictions for violent offences and this fatal incident seems to have been a short lived loss of control. However his subsequent determined efforts to avoid detection aggravate the offence as do his dishonesty offences vis-à-vis the deceased. However I doubt his long term dangerousness, hence my slightly reduced tariff recommendation.”
8. It was in view of these comments that the Lord Chief Justice stated that he agreed with the trial judge's recommendation of 12 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.”
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. The applicant does not seek to persuade the court to reduce the 12 years recommended minimum period and invites the court to set his minimum period at 12 years. In support of this submission the applicant relies on the reasons for a slightly reduced tariff being recommended in the first place as set out by the trial judge and his progress while in custody, on his offending behaviour courses, his role as a prison drug mentor, and his demonstration of deep remorse and shame.
The decision in this case
20. The first question for me in determining the applicant’s minimum term is whether, apart from the applicant’s progress during his sentence, 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. I can find no basis for differing from the views to which I have referred. I note that, if this case came for sentence today, the starting point pursuant to paragraph 6 of Schedule 21 would be 15 years. 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.
21. The efforts to avoid detection and the applicant's dishonesty offences concerning the deceased aggravate his offence as does the fact that he concealed her body. The killing seems to have been caused by a short lived loss of control as opposed to a significant degree of planning or premeditation.
22. While the progress made by the applicant in his sentence is to be commended it by no way approaches the sort of exceptional progress which may be taken into account in determining the minimum period: see R (Cole, Rowland and Hawkes) v Secretary of State for the Home Department [2003] EWHC 1789 (Admin). In any event it is not submitted that the applicant's progress warrants a reduction from the 12 years recommended by the trial judge and the Lord Chief Justice.
23. In the circumstances, I am of the clear view that the appropriate minimum period which the applicant must serve before the early release provisions are to apply to him is 12 years. From that period is to be deducted the period of remand in custody, namely 10 months and 16 days. For the avoidance of doubt, the minimum period is unaltered, save for the deduction of the period served whilst on remand.