Minimum terms
High Court setting of minimum terms for mandatory life sentences under the Criminal Justice Act 2003
HIGH COURT OF JUSTICE Case No: 2007/11/MTR
QUEEN’S BENCH DIVISION
2007 EWHC 2857 QB
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 13th December 2007
Before
THE HONOURABLE MR JUSTICE FLAUX
IN THE MATTER OF AN APPLICATION BY THOMAS ANTHONY ASPINALL
Pursuant to Paragraph 3, Schedule 22 of the Criminal Justice Act, 2003.
JUDGMENT
1. On 24 June 1997, Thomas Anthony Aspinall was convicted at Preston Crown Court before the Honourable Mr Justice Douglas Brown to an offence of murder of Kevin Sudall, committed on 6 July 1996. He was sentenced to life imprisonment, with a recommendation by the trial judge made on 4 July 1997 that he should serve a minimum period of 15 years imprisonment before consideration for early release. He had served 11 months and 12 days on remand prior to his trial.
2. On 12 July 1997, the Lord Chief Justice, Lord Bingham, agreed with the trial judge’s recommendation that the minimum period should be one of 15 years.
3. On 10 November 1998, the Home Secretary notified a minimum term of 15 years.
4. I am now asked to review the minimum term, pursuant to the provisions of paragraph 3 of Schedule 22 to the Criminal Justice Act 2003.
Facts of the Offence
5. In the early hours of 6 July 1996, the applicant (who was then 24 years old) was outside a nightclub in Blackburn with his co-defendants, his brother John Francis Aspinall (aged 23) and Paul Smythe (aged 17). The deceased, aged 22, was unknown to them. He was pointed out to the applicant by a friend as someone who had given offence in the past. On that slim pretext, the three men attacked Mr Sudall. He was punched and fell semi-conscious to the pavement where the three men kicked him, mainly to the head, stamping on his head and face. He received severe skull and facial fractures causing brain damage from which he died a few hours later.
6. The only issue at trial was one of identity, on which the jury evidently disbelieved the applicant, since they convicted him.
7. In his report to the Home Secretary, the trial judge said that all three defendants were in his view equally culpable. The judge continued:
“Aspinall was completely sober. This was a sudden cold blooded attack on a stranger swiftly and brutally executed. He has previously served four months imprisonment for inflicting grievous bodily harm (1994). Because of the nature of this unprovoked and senseless attack, I regard him as dangerous.”
He recommended a minimum term of 15 years.
8. The Lord Chief Justice agreed and recommended a minimum term of 15 years.
9. In July 1998, an appeal against conviction by all three defendants to the Court of Appeal was dismissed.
10. In written representations made on behalf of the applicant by his then solicitors, Farleys, before the tariff of 15 years was set by the Home Secretary, it was submitted that the co-defendant Smythe had been more implicated in the offence than the applicant and that because he had received a minimum term of only 12 years, the applicant’s minimum term should be reduced correspondingly.
Representations
11. I have received written representations from the applicant’s solicitors, Stephensons. The following matters are relied upon:
11.1 None of the aggravating features identified in paragraph 10 of Schedule 21 to the Criminal Justice Act 2003 was present and there was a lack of premeditation.
11.2 A number of the mitigating factors identified in paragraph 11 of Schedule 21 to the Criminal Justice Act 2003 are present, namely an intention to cause serious bodily harm rather than to kill and lack of premeditation.
11.3 It is asserted that there was forensic evidence that Smythe instigated and was more implicated in the attack. Reliance is again placed upon the fact that he received a minimum term of only 12 years and it is submitted that the applicant’s term should reduced correspondingly.
11.4 The fact of the applicant’s ongoing appeal, which is said to have a strong prospect of success.
11.5 The progress made by the applicant in prison. He is a Category C prisoner, on enhanced privileges and has completed 4 years on the therapeutic regime, involving several offender behaviour courses. He has also completed several vocational courses, including NVQ Painting and Decorating. He no longer uses drink or drugs and has not received an adjudication in prison for 7 years.
Considerations
12. In determining the shortest period the Defendant must serve before he may even be considered for release, I have to act in accordance with the Criminal Justice Act 2003.
13. By paragraph 4 (1)(a) of Schedule 22 of the 2003 Act, I must have regard to the seriousness of the offence, and, by paragraph 4(2) of the same Schedule, in considering the seriousness of the offence, I must have regard to the general principles set out in Schedule 21 of the Act and to the recommendations of the trial Judge and the Lord Chief Justice.
15 In addition to the seriousness of the offence, I must have regard to the length of the minimum term notified by the Home Secretary (paragraph 4(1)(c) of Schedule 22).
16 The general principles contained in Schedule 21 are those which indicate starting points relevant to offences of varying degrees of seriousness. I accept that the circumstances of this offence fall under neither paragraph 4(1) nor paragraph 5(1) of that Schedule, and that, accordingly, the starting point is a minimum term of 15 years, since the applicant was over the age of 18 at the time he committed the offence. However, that is only the starting point.
17 None of the aggravating factors listed in paragraph 10 of Schedule 21 is present in this case. However, the list of aggravating factors in Schedule 21 is not exclusive. In my judgment, the very nature of this unprovoked and senseless attack on a complete stranger is in itself an aggravating feature.
18 The only mitigating factors listed in paragraph 11 of Schedule 21 which would seem to be present in this case are a lack of premeditation and the absence of intent to kill. As the trial judge rightly concluded, this was a sudden and cold blooded attack swiftly and brutally executed. The applicant has shown no remorse.
19 The fact that the co-defendant Paul Smythe received a recommended minimum term of 12 years cannot avail this applicant. Since Smythe was only 17 at the time the offence was committed, the appropriate starting point for him would be 12 years (see paragraph 7 of Schedule 21) whereas for the applicant it would be 15 years. The attempt to place the blame more on Smythe is contrary to the trial judge’s conclusion that all three defendants were equally culpable.
20 Equally, in setting the minimum term, the fact that there may be an ongoing appeal is of no relevance. I know nothing of that appeal. I have read the judgment of the Court of Appeal dated 6 July 1998 from which it is clear that the Court did not consider that any of the matters raised by the applicant or his co-defendants rendered their conviction unsafe.
21 As for the applicant’s progress in prison, in Cole and Others v. The Secretary of State for the Home Department [2003] EWHC 1789 Admin, the Vice-President, Rose L.J. said that in his opinion it was inconceivable that “exceptional progress” by a prisoner following conviction should not be taken into account in setting a minimum term. He did not himself define that which made progress in prison exceptional, as distinct from that which was reasonably to be hoped for, but cited without apparent criticism a passage from an affidavit in front of him which read:
“In broad terms the Home Secretary would look for an exemplary work and disciplinary record in prison, genuine remorse, and successful engagement in work (including offence-related courses) that has resulted in substantial reduction in areas of risk. All these would have to have been sustained over a lengthy period and in at least two different prisons. To reach the threshold of exceptional progress there would also need to be some extra element to show that the lifer had done good works for the benefit of others. Examples would be acting as a Listener (helping vulnerable prisoners), helping disabled people use prison facilities, raising money for charities, and helping to deter young people from crime. Again there would need to be evidence of sustained involvement in at least two prisons over a lengthy period”
22 Accordingly I take the view that whilst progress in prison is relevant, I should adopt a restrictive approach in assessing the extent to which, if at all, it is such as to justify a reduction in the minimum term. The applicant has made good progress in prison as described in the reports included with his solicitor’s written representations. However, in my judgment, that progress is not in any sense “exceptional” so as justify a reduction in the minimum term.
23 Balancing the very limited mitigating factors which I consider can legitimately be relied upon against the aggravating factor I have identified, I can see no reason to reduce the minimum term below that already notified of 15 years, subject only to the issue of time spent on remand.
Time served on remand
24 The applicant spent 11 months and 12 days on remand prior to his sentence. Under paragraph 4(1) (b) of Schedule 22, I must also have regard to the effect that section 67 of the Criminal Justice Act 1967 would have had if the applicant had been sentenced to a term of imprisonment, provided that I am satisfied that, if he had been so sentenced, the length of his sentence would have been treated as reduced by a particular period under that section. Accordingly, the court takes account of any period that the applicant has spent in custody solely because he was committed to custody by an order of the court made in connection with proceedings relating to the murder. I am satisfied that in the present case I should have regard to the period spent on remand of 11 months and 12 days, which should count towards satisfaction of the applicant’s minimum term.
Conclusion
25 Subject to one qualification, I see no reason for any reduction in the tariff notified by the Secretary of State of 15 years. The qualification is that the 11 months and 12 days on remand must be deducted, reducing the period of 15 years to 14 years and 18 days.