Minimum terms
High Court setting of minimum terms for mandatory life sentences under the Criminal Justice Act 2003
Neutral Citation Number: [2008] EWHC 926 (QB)
Case No: 2006/77/MTR
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 07/05/2008
Before :
MR JUSTICE RODERICK EVANS
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Between :
Regina Claimant
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Lee Christopher ALLEN Defendant
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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.
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MR JUSTICE RODERICK EVANS
Mr Justice Roderick Evans :
1. On 24th July 1998, following a trial at the Exeter Crown Court the defendant Lee Christopher Allen was convicted of murder. The same day he was sentenced to life imprisonment.
2. In due course, the trial judge recommended that the defendant serve a minimum term of 15 years before release on licence. The Lord Chief Justice, Lord Bingham, recommended that a term of 14 to 15 years would be appropriate. On 18th June 1999 the Home Secretary notified the defendant that the minimum term would be 14 years.
Facts
3. The facts of the case as taken from the trial judge's report to the Lord Chief Justice are as follows.
4. In February 1997 the defendant was involved in a street brawl with a group of young men which included the deceased. The deceased had previous convictions for violence. There was an exchange of threats at the time and the defendant became obsessed that the deceased was going to assault him seriously.
5. On the night of 23rd May 1997 there was a confrontation between the defendant and the deceased in which the defendant sustained a cut to his eyebrow and a black eye. He thereupon determined to have his revenge on the deceased. He ran to his home, disguised himself and armed himself with a large, heavy fishing knife with a 7-inch blade. He then went to an alley through which he knew the deceased would pass on his way home and hid there. When the deceased duly passed him the defendant plunged the knife into the deceased's back causing massive internal and external bleeding from which the deceased died almost at once. The defendant ran off but the next day surrendered himself to the police and made a full admission of what he had done.
6. At trial the defendant withdrew his admissions, contending that his admissions were fantasies designed to impress the police. He contended that the interviews were unreliable because he had been drunk, very tired, very anxious and without the benefit of a solicitor. His case was that he had accidentally run into the deceased and caused the fatal injury when he put out his hands to prevent a collision with him.
Previous convictions
7. The defendant was born on 26th day of June in 1973 and was therefore 25 years of age at the date of sentence. He had numerous previous convictions including a conviction for inflicting grievous bodily harm, three for assault occasioning actual bodily harm, two for assaulting police and two for possessing an article with a blade or point in a public place.
The relevant guidance at the time of sentence
8. At the time that sentence was passed in this case the practice of fixing the minimum term as set out in Lord Bingham letter of 10th February 1997 was to take 14 years as the starting point. That starting point could be increased or reduced in the light of the aggravating or mitigating features of the case.
9. The trial judge concluded that this was a planned killing borne out of hatred, anger and fear. Whilst the defendant initially showed some remorse for what he had done, shortly thereafter he constructed and maintained a dishonest and palpably false story. There was no remorse or regret apparent at trial. The effect upon the family of the deceased, he concluded, had been particularly serious, exacerbated by the nature of the defendant's defence in seeking to paint a picture of the deceased which was exaggerated and distorted. Despite some evidence that the defendant was seeking to use his time in custody constructively and although some who knew him spoke well of certain aspects of his character, the judge concluded that the nature of the killing and the circumstances in which it was committed demanded a substantial period of detention to meet the requirements of retribution and the general deterrence. It was for those reasons that he recommended a minimum term of 15 years.
Documentation and representations
10. I have received and read a substantial number of documents. Many were prepared prior to trial and I apprehend that the trial judge had the opportunity of considering many if not all the documents. The documents which I have read include a statement from the defendant which appears to be the statement which he made by way of instructions to his solicitor, a statement from the defendant's mother, letters of reference from a number of people who knew the defendant and as the trial judge pointed out they spoke well of certain aspects of his character. There is also a letter from a prison officer which speaks of the defendant's work when in custody with children from Chernobyl.
11. There are a number of medical reports, some of which appear to have been obtained with a view to exploring the possibility of raising the issue of diminished responsibility. These reports include a neuro-psychiatric report from Dr Bird, forensic psychiatric reports from Dr Dorkins, Dr James and Dr Lilywhite and a neuro-psychology report from Renee McCarter.
12. Prior to the Home Secretary fixing the minimum term in this case, the defendant wrote a letter in which he set our his representations on the setting of the minimum term. He contends that he had no intention to kill the deceased, that his remorse was genuine and that during the course of his evidence he did not distort descriptions of the deceased. He merely set out the truth of what had happened between the deceased and him. The defendant also asserts that all his offending had occurred when he was under the influence of drink and that he had addressed the issue of drink while he was in custody.
13. Representations specifically directed at the present minimum term setting exercise have been received from solicitors representing the defendant. They deal with the background of the case and emphasise the remorse which the defendant now feels for his actions, the previous violent and provocative conduct of the deceased towards the defendant and assert that the defendant had no intention of killing the deceased. Reference is made and reliance placed upon courses and programmes which the defendant has undertaken whilst in custody. The defendant is now more able to deal with situations of conflict and the risk that he once presented has now been reduced. The defendant alleges that he received bad advice from his legal advisers to contest this case and says that on reflection he should have pleaded guilty to the offence. In summary the representations are to the effect that the defendant now accepts that he did intend to cause serious harm to the victim and that had more credence been given to the issue of provocation then the tariff set would have been lower than 14 years notified by the Secretary of State.
My determination
14. Paragraph 4 of schedule 22 to the 2003 Act sets out the matters to which I am to have regard in dealing with this application. They are the seriousness of the offence and the effect which Section 67 Criminal Justice Act 1967 would have had if the applicant had been sentenced to a term of imprisonment and the length of the notified term. When considering the seriousness of the offence, the court must have regard to the general principles set out in schedule 21 of the 2003 Act and any recommendations made to the Secretary of State by the trial judge or the Lord Chief Justice as to the minimum term to be served by the applicant before he is released on licence.
15. The general principles contained in schedule 21 are those which indicate starting points relevant to offences of murder or varying degrees of seriousness. Under this schedule the starting point for fixing the minimum term in this case would, in my judgment, be 15 years. One of the aggravating features set out in paragraph 10 to schedule 21 of the Act is present in this case, namely, a significant degree of planning or premeditation. As to mitigation, although the defendant says that he now concedes that he intended to cause the victim really serious harm it was the finding of the trial judge who heard the evidence in the case that this was a planned and premeditated killing. It was therefore clearly the view of the trial judge that the defendant's intention was to kill. Provocation was run as a defence at trial and was rejected by the jury. However, the judge took into account when making his recommendation that the killing was borne out of hatred, anger and fear. This I translate into the mitigating factor set out at paragraph 11(d) of the 21st schedule, namely, the fact that the offender was provoked in a way not amounting to a defence of provocation. I accept the genuineness of the defendant's remorse but I bear in mind the content of the various documents that I have read and refer to above. The defendant's previous convictions also fall to be considered as a factor which aggravates the offending.
16. In my judgment a minimum term set under the provisions of this schedule would be significantly in excess of 15 years. I must, however, also have regard to the other matters set out in paragraph 4 and to the progress that the defendant has made in custody. This progress is encouraging and will no doubt stand the defendant in good stead when his case is reviewed by the parole board but the progress is not such as should operate to reduce the minimum term. I bear in mind that I must not set a term which is greater than that which the Secretary of State has notified to the defendant. There is no justification for reducing the minimum term set by the Secretary of State and I therefore set the minimum term at 14 years. From the term of 14 years must be deducted the time the defendant has spent in custody on remand prior to sentence, namely, 14 months.
17. The defendant must understand that he will not be released automatically when he has served this minimum term less the time spent on remand which I have set. He will be released only if the parole board considers it is no longer necessary to detain him for the protection of the public. When the defendant has served the minimum term and the Parole Board has directed his release, he will remain on licence for the rest of his life.