Minimum terms
High Court setting of minimum terms for mandatory life sentences under the Criminal Justice Act 2003
Neutral Citation Number: [2008] EWHC 1804 (QB)
Case No: 2004/794/MTR
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 01/08/2008
Before :
MR JUSTICE GRIGSON
APPLICATION BY FLORIAN ANCIAUX
FOR THE SETTING OF A MINIMUM TERM PURSUANT TO SCHEDULE 22, PARAGRAPH 3 OF THE CRIMINAL JUSTICE ACT 2003
DECISION
Mr Justice Grigson:
1. This is an application by Florian Anciave for the setting of a minimum term pursuant to Schedule 22 paragraph 3 of the Criminal Justice Act 2003.
2. The Applicant, also known as Ian Kavi Kay was convicted of murder on 20th July 1995. He had pleaded guilty to 7 offences of robbery, 1 of theft and 2 offences of attempted theft. He was sentenced as follows:
(1) Murder – imprisonment for life with a recommended minimum term of 22 years.
(2) For each of the robbery offences – 10 years imprisonment.
(3) For theft and attempted theft – 3 years imprisonment
All sentences to be served concurrently.
3. Lord Taylor, Chief Justice endorsed the recommendation of the trial judge.
4. The term notified to the Applicant by the Secretary of State was 22 years.
5. The minimum term is the period which the Applicant must serve before the Parole Board can consider his release on licence. It is not the term that the Applicant will serve before his release on licence.
6. Para. 4(1) of Schedule 22 directs that this Court must have regard to:
(a) The seriousness of the murder and of offences associated with the murder
(b) The length of the notified minimum term.
7. Para. 4(2) requires the Court to have regard to:
(a) The general principles set out in Schedule 21 of the Criminal Justice Act 2003 in determining the seriousness of the offence.
(b) Any recommendation 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.
8. Para. 3(1) a provides that any minimum term set by this Court must not be greater that the notified minimum term.
9. Schedule 21 sets out three categories of seriousness. Each one has a starting point:
(a) Para. 4(1)a. Where the offender is over 21 and the seriousness of his conduct is exceptionally high, the starting point is a whole life order.
(b) Para. 5(1)a & b. Where the offender is over 18 and the seriousness is particularly high the starting point is 30 years.
(c) Para. 6. Where the offender is over 18 and the case does not come within (a) or (b) above, the starting point is 15 years.
10. The seriousness of the offender’s conduct is to be determined by the criteria set out in paragraph 4(2). [Exceptionally high cases] and 5(2) [Particularly high cases]. Conduct which does not qualify for either comes into the third category of seriousness.
11. Having determined the starting point, the Court may either increase the minimum term or reduce the minimum term depending upon whether there are aggravating or mitigating features other than those which have determined the seriousness of the conduct. Some of those factors are listed under the relevant headings in Para. 10 and 11 of Schedule 21.
12. Section 143 provides that previous convictions are an aggravating factor: Section 144 provides that a guilty plea is a mitigating factor.
13. Having thus ascertained the minimum term the Court must deduct from it time spent in custody on remand in relation to the index offence.
14. Good conduct whilst in prison is of great importance to the Applicant and to those responsible for his progress within the prison system. It is not one of the factors required to be taken into consideration by statute. Exceptional progress should be recognised by some reduction in the minimum term.
15. Where there is evidence of the effect of the murder upon the victim’s family, the Court must give proper consideration to that material.
16. Material before the Court:
i) Home Office file including trial judge’s report
ii) Summing-up and sentencing remarks
iii) Representations from Scott-Moncrieff, Harbour and Sinclair of 5th October 2004
iv) Representations by the Applicant
v) Reports from 7 psychiatrists
17. Facts:
The Applicant was 28 years old at the date of the offence. He had an appalling record. In December 1990 he had been sentenced to a total of 8 years imprisonment for inter alia, 7 offences of robbery, 1 offence of carrying a firearm with intent and 9 offences of theft.
On the 25th August 1994 he was granted home leave. He failed to return to prison so was unlawfully at large when he committed the subsequent offences.
On 3rd November 1994 he went into Woolworths in Teddington. He was armed with a knife. He intended to rob the female cashier. He handed her a packet of crisps so that she would open the till. As he did so the assistant manager John Penfold approached carrying change for the till.
The Applicant stabbed Mr. Penfold once through the heart. He fled. After his arrest he told Police a) that Penfold had intervened and b) that had Penfold been bigger, he would not have attacked him. There was no evidence to support the first contention. The cashier said that Mr Penfold had simply approached the till.
The Applicant was transferred to Broadmoor Hoispital in January 1996. Whilst in Broadmoor he attacked a fellow inmate: for that he was convicted of attempted murder and made the subject of a hospital order without restriction as to time.
18. Submissions from the Applicant’s Solicitor.
1) It is submitted that the Court should fix the minimum term by reference the the ‘Bingham Letter’ and that to do otherwise would infringe the Applicant’s rights under Article 7 of the European Charter of Human Rights.
It is submitted that if the Court has regard to the guidance provided in Schedule 21 of the Criminal Justice Act 2003 these rights would be violated.
2) It is further submitted that the fact that this Court cannot increase the minimum term is not sufficient protection of the Applicant’s rights as there may be additional mitigating features, not available to the trial judge or to the Lord Chief Justice.
3) It is submitted that the Applicant’s mental state as evidenced in the psychiatric reports provides substantial mitigation such as to reduce the recommended minimum period to a substantially lower term that 22 years.
19. Submissions from the Applicant.
1) He submits that he did not commit this robbery intending to kill anyone.
2) He relies upon his mental state as providing substantial mitigation.
3) He relies upon the contents of the psychiatric reports and his progress whilst in Broadmoor Hospital.
4) He asserts that this Court should ignore the fact that he had been convicted of attempted murder
20. The judgment in R v Sullivan [2004] EWCA 1762, although dealing with offenders who were sentenced to a mandatory life sentence after 18th December 2003, makes it plain that the requirement to have regard to the seriousness of the offenders conduct as prescribed in Schedule 21 of the 2003 Act is not, per se, a violation of the offenders Article 7 rights.
21. There is an obvious conflict between the submissions of Solicitors and the Applicant that this Court should have regard to matters which have arisen subsequent to the sentence and which may amount to mitigation and the submission of the Applicant that this Court should ignore his subsequent conviction for attempted murder. In the event this is not a conflict that I need to resolve.
22. There was no doubt but that the Applicant was suffering from an abnormality of mind namely psychopathic disorder at the time he murdered Mr Penfold. He may or may not have also suffered from mental disorder. What is absolutely plain is that any mental disorder he had played no part in the commission of this offence. He needed money to fund his drug taking. He determined to get the money by robbery. He took a knife and was prepared to use it if necessary. It was and he did.
23. Starting Point.
The starting point under Schedule 21 would be 30 years. The jury found that his responsibility for his actions was not substantially diminished.
24. Aggravating Features:
The Applicant’s previous convictions and the fact that he was unlawfully at large.
25. Conclusion.
In my judgment the minimum term of 22 years is not susceptible to any criticism. No deduction is available as the Applicant was a serving prisoner at all relevant times albeit an absconder. I fix the minimum term at 22 years.