Minimum terms
High Court setting of minimum terms for mandatory life sentences under the Criminal Justice Act 2003
Neutral Citation Number: [2007] EWHC 579 (QB)
Case No: 2004/620/MTS
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 29/03/2007
Before :
THE HON. MR JUSTICE GOLDRING
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Between:
THE QUEEN
- and -
NABEEL AZHAR
Judgment Approved by the court
for handing down
(subject to editorial corrections)
Mr Justice Goldring:
Introduction:
1. On 4th March 2003, following a trial before His Honour Judge Charlesworth at Bradford Crown Court, Mr Azhar was convicted of murder. He was sentence to custody for life. In his Mandatory Life Sentence Report to the Home Secretary the judge stated the appropriate tariff for retribution and deterrence was 15 years. The case was not considered by the Lord Chief Justice. No notification of tariff was given by the Home Secretary. It is now for me to set the minimum term.
The Facts
2. The offence was committed in June 2002. The deceased was a shopkeeper. The defendant inflicted 30 wounds upon him with a knife. In his description of the offence the trial judge stated that was “in order to steal the shop takings of £1600. He knew and had befriended the deceased and knew where the money was hidden, staying behind in the shop when it closed at 11pm in order to commit the offences.”
3. The defence at trial was that the murder was committed by another man in the back room of the shop. At the time the defendant was stealing the takings in the front room. The defendant claimed that he had no idea the other man intended to attack the victim.
4. In further observations the judge said this. “This was a vicious sustained and extremely violent attack with a knife, the extent of which was totally unnecessary for the purpose of [robbery] … but was done, no doubt, in order to avoid detection. The defendant, although short of money, generally and perhaps [with] strong liking for gambling machines, had no pressing need for cash at all. … He must therefore be regarded as dangerous and presenting a risk of re-offending at this time although the absence of previous convictions does not suggest a propensity to violence …”
5. In suggesting a minimum term of 15 years, the judge in terms referred to the killing as being in the course of a robbery. The only mitigation he found was the youth of the defendant and the absence of previous convictions.
The Legal Provisions
6. Schedule 22 to the Criminal Justice Act 2003 (“the Act”) came into force on 18 December 2003. As I have said the Home Secretary had not notified the defendant of the minimum period which he should serve before his release on licence. Accordingly, the case has been referred to the High Court under paragraph 6 of Schedule 22 to the Act for the making of an order under sections 269(2) or 269(4) of the Act; in effect an order that the defendant should never be released on licence, or an order that his release on licence can be considered by the Parole Board after he has served a specified time in custody (“the Minimum Term”).
7. The minimum term may not be any longer than the minimum term which would have been set by the Home Secretary under the practice which he would have followed at the time. It must reflect the aggravating and mitigating features of the offence. Recommendations by the trial judge and the Lord Chief Justice were then based on guidance given by the then Lord Chief Justice, Lord Bingham, in a letter he sent to judges on 10 February 1997. Lord Bingham said that his practice was to take 14 years as the period actually to be served for what was described as the normal or unexceptional murder. As his successor Lord Woolf said in Sullivan 2004 EWHC Crim 1762, in most cases the Home Secretary fixed the minimum term in accordance with the recommendation of the trial judge and the Lord Chief Justice. For murders committed between 1 June 2002 and 18 December 2003 the normal starting point was 12 years; see Practice Statement of 31 May 2002.
The submissions on behalf of the deceased family.
8. No submissions have been made.
The submissions on behalf of the defendant.
9. I have read the letters written by the defendant. I have read the representations submitted on his behalf by Ms Krause. Essentially she makes the following submissions.
10. First, I cannot be sure that this was a murder committed, as she puts it, in the course of burglary. I disagree. The defendant was convicted of robbery. The trial judge’s findings are clear. It is plain that this was “a murder done for gain.” See Criminal Justice Act 2003, Schedule 21, paragraph 5(2)(c).
11. Secondly, Ms Krause submits that given the uncertainty as to the motive, there should be an oral hearing. I do not agree. There is no uncertainty.
12. Third, Ms Krause submits that a minimum term not exceeding 14 years should be set.
13. Under Schedule 21 of the Act the starting point for this defendant’s sentence would be 30 years. It is an aggravating feature that there was a significant degree of planning or premeditation. The defendant’s youth and his absence of previous convictions are mitigating features. An appropriate starting point in accordance with the Act would be one in the order of 20 years. Applying the law as it was at the time of the commission of the offence the appropriate minimum term was that set by the trial judge, namely 15 years.
14. Against that 15 years should be set off the 8 months 16 days spent in custody on remand.