Minimum terms
High Court setting of minimum terms for mandatory life sentences under the Criminal Justice Act 2003
Neutral Citation Number: 1468 [2007] EWHC (QB)
Case No: 2004/848/MTS
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 11 July 2008
Before :
MR JUSTICE GRIFFITH WILLIAMS
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Between
Regina
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FETHAULLAH MOHAMMED
RUPERT GRAHAM ALLEYNE
DAVID ALWYN QUARRY
PAUL CHRISTOPHER BUSH
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The Hon Mr Justice Griffith Williams
APPROVED JUDGMENT
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Griffith Williams :
1. On 1st August 2003 in the Central Criminal Court, Fethaullah Mohammed, Rupert Graham Alleyne, David Alwyn Quarry and Paul Christopher Bush [“the defendants”] were convicted by a jury of the kidnapping and murder on 4 March 2002 of Yasmin Akhtar [“the deceased”] and each was sentenced by the trial judge, His Hon Christopher Moss QC to life imprisonment for the offence of murder and to a concurrent term of 15 years imprisonment for the offence of kidnapping. In his Report dated 17 October 2003 to the Secretary of State, the learned judge recommended the following minimum terms: in the case of the defendant Mohammed, 20 years, in the case of the defendants Alleyne and Quarry 18 years and in the case of the defendant Bush 17 years. The recommendations were not considered by the Lord Chief Justice. Because of the changes introduced by the Criminal Justice Act 2003 [“the Act”] as to how minimum terms for mandatory life sentences are to be determined, the Secretary of State has not notified a minimum term to any of the defendants but has referred their cases to the Court in accordance with the provision of paragraph 6 of Schedule 22 of the Act, for the court to make orders under section 269 (2) or (4) of the Act in relation to the mandatory life sentences which the defendants are serving. This requires the stage-by-stage approach identified in the guideline decision of the Court of Appeal, Criminal Division in Sullivan & Others [2005] 1 Cr App. R (S) 69.
2. I am satisfied in each case that there should not be an order under section 269 (4) of the Act that the early release provisions should not apply and so I must first determine the part of the sentence that each must serve before the early release provisions apply in a defendant’s case. In determining the minimum period, I must consider the seriousness of the offence of murder committed by the defendants and in doing so I must have regard to the general principles set out in Schedule 21 of the Act and to the recommendations made by the trial judge, but paragraph 8 of Schedule 22 provides the court may not determine a minimum term greater than that which, in the opinion of the court, the Secretary for State would have been likely to notify to each defendant under the practice followed by the Secretary of State before December 2002.
3. The Victim Liaison Officer of the Probation Service has invited the family of the deceased to submit a Victim Impact Statement but there has been no response. I have considered written representations submitted on behalf of the defendant Alleyne by Cunninghams, Solicitors and on behalf of the defendant Quarry by Paula Cochraine of Tuckers, Solicitors. The representations detail the progress of those defendants in prison but positive progress is no more than is to be expected from all life prisoners and so these are not matters to which I can have regard; see Cole v. The Secretary of State for Home Department [2003] EWHC (Admin) 1789. The defendant Mohammed has indicated that no representations will be made on his behalf and the defendant Bush has not replied to letters offering him the opportunity to make representations or to request an oral hearing.
4. The deceased was the second wife of Mohammed Jamil, the father of the defendant Mohammed and so she was the step-mother of the defendant Mohammed. Jamil was found to be unfit to be tried. The deceased lived with Jamil and the defendant Mohammed in Balham Park Road, SW12. The family owned a shop in the Old Kent Road, which was run by the defendant Mohammed. The deceased was the victim of domestic violence and in June 2000, she moved to a women’s’ refuge and filed a petition for divorce. Jamil and the defendant Mohammed feared she might be granted as much as £250,000 in the divorce proceedings and so they tried to find out where she was living and issued threats to members of her family and to others that she would be killed if she did not withdraw her petition for divorce. On 11 January 2001 the deceased moved to another address and the defendant Mohammed enlisted the support of the defendant Alleyne (a close friend of his) to find her. They were successful and Alleyne then recruited his brother-in-law, the defendant Quarry and the defendant Bush, a friend of Alleyne’s brother, to kidnap her. On 4 March 2002, the deceased was kidnapped from her flat – there was forensic evidence which established that petrol had been poured through her letterbox, presumably to terrify her into opening the door and neighbours heard her screaming loudly and repeatedly. She was taken to the shop in the Old Kent Road, where she was beaten and killed by ligature strangulation. Her body was then taken in the defendant Alleyne’s motor vehicle to Lark Hall Park, Clapham where it was doused in petrol and set alight. The burning body was discovered by a passer-by and recovered by the police and fire brigade before it was destroyed. The defendant Mohammed paid the defendant Alleyne £10,000 for his services.
5. Each defendant denied any involvement in the kidnapping or murder.
6. The prosecution case, which the jury clearly accepted, was that it was the defendant Mohammed who organised the kidnapping and the murder, recruiting Alleyne, who then recruited Quarry and Bush. The jury were directed that they could only convict a proven kidnapper of murder on the basis of joint enterprise if they were sure that that kidnapper knew at the time of the kidnapping that its purpose was the murder of the deceased. The prosecution case was the kidnappers were the defendants Alleyne, Quarry and Bush but it was not suggested that the defendant Bush was part of the expedition to deliver the deceased to the Old Kent Road or was present when her body was disposed of. As the learned trial judge reported, this was, in effect, a contract killing, the purpose of which was to rid the family of a troublesome wife. In the case of the defendant Mohammed, he acted out of greed because he did not want his inheritance reduced by a divorce settlement and so he paid the others to carry out the kidnapping and the murder.
7. Applying the provisions of schedule 21, paragraph 5 (2) (c) of the Act, the starting point is 30 years. The additional aggravating factors are: the significant degree of planning, the obvious physical suffering inflicted on the deceased before her death (there was a large area of heavy blood-staining containing her DNA on the hallway carpet her flat) and there was the attempted destruction by fire of the body. There were no mitigating factors.
8. When a defendant has one or more previous convictions, the court is required – see Section 143 (2) of the Act – when determining the seriousness of the offence to treat each previous conviction as an aggravating factor if it considers that the conviction can reasonably be so treated having regard to (a) the nature of the offence to which the conviction relates and its relevance to the murder and (b) the time that has elapsed since the conviction.
9. There are no relevant convictions in the case of the defendants Mohammed and Alleyne. Although the defendant Bush was convicted in1988 of assault occasioning actual bodily harm and in 2002 of common assault, I have concluded that those convictions are not such as to amount to an aggravating factor. The defendant Quarry was convicted in 1985 of assault occasioning actual bodily harm, in 1986 of causing grievous bodily harm with intent and of inflicting grievous bodily harm, in 1990 of attempting to cause grievous bodily harm with intent and of affray, in 1992 of common assault, in 1996 of affray and in 2001 of assault occasioning actual bodily harm. As he was recruited to play a part in a contract killing, those convictions which reveal a pattern of violent offending, are relevant and in my judgment must be treated as an aggravating factor.
10. The minimum terms, determined in accordance with schedule 21, would be as follows:
In the case of the defendant Mohammed, 25 years, in the case of the defendant Alleyne 20 years to reflect his leading subordinate role, in the case of the defendant Quarry 20 years and in the case of the defendant Bush 18 years. The minimum term in the defendant Quarry’s case, reflects his more subordinate role but the aggravating factor of his previous conviction
11. In Sullivan & Others, above, Lord Woolf CJ giving the judgment of the court said, at paragraph 23, that the purpose of the transitional provisions in paragraph 10 of Schedule 22 of the Act is plain:-
“It is to avoid the offender having a minimum term determined that offends the requirements of Articles 5 & 7.1 of the ECHR to which we referred at the beginning of this judgment. It prohibits a heavier penalty being imposed than could be imposed at the time of the offence was committed… so the minimum term calculated in accordance with the guidance contained in Schedule must not exceed that which would have been capable of being imposed at the time the offence was committed.”
12. At the date of the murder on 4 March 2002, the relevant Practice Direction was in the letter dated 10 February 1997 sent by Lord Bingham CJ to the judges who had to make recommendations as to minimum terms. That has since been incorporated in the Consolidated Practice Direction [2002] 2.Crim App.R.18 at IV.49.14-21. Applying that direction, the murder of the deceased was not an “average” “normal” or “unexceptional” murder and so the starting point would have been more than 14 years. With the aggravating factors identified at IV.49.15 of a planned contract killing, gratuitous violence, killing for gain and the attempt to destruction of the body, in my judgment the learned trial judge correctly assessed the minimum terms in each case and I am satisfied the practice of the Secretary of State would have been to have followed the Practice Direction of 10 February 1997 and he would accepted the recommendations.
13. The Practice Direction of 10 February 1997 was replaced by a Practice Direction handed down on 31 May 2002 by Lord Woolf CJ, subsequently incorporated in the Consolidated Practice Direction at IV.49.23-33. Although that Practice Direction was in force at the date of the defendants’ convictions and at the date of the learned judge’s report and recommendation to the Secretary of the State, it had no application to their cases – see paragraph 11 above - nonetheless, it seems from the learned sentencing judge’s reference in his Report to a higher starting point of 15/16 years that he may have had it in mind. My conclusion is it matters not whether the earlier or the later Practice Direction is applied because in my judgment the same minimum terms would have been recommended.
14. In accordance with the provisions of paragraph 8 of Schedule 22, my determination is that the minimum terms are as follows:
In the case of the defendant Mohammed 20 years, in the case of the defendant Alleyne and Quarry 18 years and in the case of the defendant Bush 17 years.
I must have regard to the requirements of Section 240 of the Act that the time spent on remand in custody should count as time served as part of the minimum term and so the minimum term I specify are:
In the case of the defendant Mohammed 20 years, less 13 months and 18 days, in the case of the defendant Alleyne 18 years, less 9 months, in the case of the defendant Quarry 18 years less 13 months and 18 days and in the case of the defendant Bush 17 years, less 6 months and 24 days.