Minimum terms
High Court setting of minimum terms for mandatory life sentences under the Criminal Justice Act 2003
Neutral Citation Number: [2009] EWHC 581 (QB)
Case No: 2007/22/MTR
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Date: 25/03/09
Before :
THE HONOURABLE MR JUSTICE BEATSON
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R
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DAWUD RASHID ABU-NEIGH
(FORMERLY RICHARD WALLACE)
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Neither party was represented
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Approved Judgment
Mr Justice Beatson:
1. The applicant, David Rashid Abu-Neigh (formerly Richard Wallace), then aged 36, was convicted of the murder of Anthony Baker at the Central Criminal Court on 1 July 1998 and was sentenced to life imprisonment.
2. On 6 July 1998 the trial judge, HH Judge Gordon, recommended that the applicant should not be considered by the Parole Board for release on licence until he had served a period of 16 years imprisonment. On 8 July 1998 the Lord Chief Justice stated he regarded 17-18 years as the appropriate minimum. On 29 January 2001, after considering representations made on behalf of the applicant, the Home Secretary set the tariff at 20 years. The matter comes before the court pursuant to Schedule 22 of the Criminal Justice Act 2003 ("the Act") for the determination of the minimum term.
The facts
3. The relevant facts, as described by the trial judge, were these:
“The deceased (41) worked in a West Indian take-away food shop in Brixton. On 3 June 1998 the defendant, armed with a loaded automatic pistol (not recovered), entered the rear part of the premises by an open door. He held the gun to the head of one of the four occupants, holding him round the neck with his other arm and demanded jewellery and money. The deceased, who was standing at the cooking range, took a large cooking pot lid and, using it as a shield, went towards the defendant. There was a brief struggle before the defendant shot him and then fired a second shot, both hitting the deceased in the head. The defendant then ran back to a mini cab he had been using to drive around the area and ordered the driver to drive off. When the way was blocked by other traffic he decamped.”
4. There were no medical considerations before the court.
5. The trial judge commented as follows on the applicant’s dangerousness and likelihood of re-offending:-
“The defendant has no relevant previous convictions. There was some suggestion by the defence during the trial that the killing (by someone else) was related to drug dealing from the café rather than opportunistic robbery, but there was no evidence to support this.
The possession of a loaded automatic pistol and the firing of a second shot must indicate the defendant is, at present, very dangerous.”
These proceedings
6. In representations on behalf of the applicant the court is asked to consider the applicant’s custodial behaviour which is said to be excellent and, specifically, his progress made whilst in prison, particularly in the form of the educational and charity work that he has undertaken. Reliance is placed on inter alia his work as a peer tutor and his teaching position within HMP Dovegate, the significant work he has done raising money for charity, his completion of an Open University BSc Honours degree in International Studies, and a City and Guilds qualification in fashion and adult teaching, and his completion of conflict management, social life skills, enhanced thinking skills and personal development, and anger management and drug relapse prevention courses. Reliance is also placed on the award he has received from the Hardman Trust Scheme acknowledging his special commitment to the process of personal rehabilitation and a letter dated 29 October 2007 from the Director of HMP Dovegate recording the gratitude and thanks of prison staff for the applicant’s intervention when a fellow life sentence prisoner was attempting to take his own life. No application has been made for an oral hearing.
7. As I understand to be the usual practice in these cases, no representations have been submitted to me by the Secretary of State. The family of the deceased has been invited by the Probation Service to submit a victim impact statement but has not responded to letters from the Victim Liaison Officer.
8. The prosecution submits that there is ample evidence to support the contention that this murder was premeditated and invite the court to take into account the defendant’s plea, pursuit of an appeal and the content of the representations made to the Home Secretary in November 2000 when the Home Secretary was considering setting the tariff in assessing the applicant’s present expressions of remorse. While accepting that as a matter of law the applicant is entitled to have any exceptional progress he has made considered by the court, the prosecution rely on paragraph 52 of the judgment in Caines [2006] EWCA Crim 2915, in which the Court of Appeal stated that even where the very high standard required for progress to be “exceptional” is reached, the impact on the total tariff period is likely to be very modest, that progress falls to be considered when the minimum period is coming towards its end and that it is a prerequisite to any reduction that the risk assessment should be favourable.
Discussion
9. In determining the seriousness of this offence I have paid careful regard not only to section 269(5) of the Act, which came into force on 18 December 2003, but also to the recommendations of the trial judge and the Lord Chief Justice. Furthermore, I have been careful not to impose a term which is greater than that which under the practice followed by the Secretary of State before December 2002 the Secretary of State would have been likely to set.
10. This murder was committed on 3 June 1997 i.e. before 31 May 2002, and as a result the best guide is Lord Bingham CJ's letter of 10 February 1997. In summary, under that indication, 14 years is the starting point for an "average" unexceptional offence. In Sullivan 2004 EWCA Crim.1762, at [29] the Court of Appeal stated that the fact that Lord Bingham listed an absence of intention to kill and lack of premeditation as mitigating factors showed that the 14 year period was intended to cover more serious murders.
11. A number of the aggravating features in Lord Bingham’s letter are present. The murder involved the use of a firearm. It was committed in the course of a robbery and for gain. Although the representations made on behalf of the applicant state that the facts indicate that there was no premeditation involved in the commission of the offence, the summary of the circumstances of the offence by the trial judge is inconsistent with this. The applicant travelled to the takeaway food shop in a minicab. He arrived at it with a loaded automatic pistol. He must have equipped himself with that before arriving at the takeaway food shop. On entering the food shop he held the gun to the head of one of the four occupants and demanded jewellery and money. These factors, and in particular the fact the gun was loaded and used immediately on entry to the shop, show that it was planned to use it in the commission of a serious crime. Each of the three aggravating factors would in itself justify a higher minimum term than the 14 year average. Cumulatively they amount to substantial aggravation.
12. The representations on behalf of the applicant, while referring to his accepting the harm done to the victim and his family and his wholehearted regret of his offending behaviour, rely on his conduct since he has been in prison. The applicant does not have the benefit of a plea of guilty. Following his conviction he pursued an appeal which was withdrawn in 1999 and the representations made to the Home Secretary in respect of the tariff to be fixed by the Home Secretary in a letter dated 2 November 2000 contains no expression of remorse. The expressions of remorse relied on are in reality an aspect of the applicant’s progress in prison. At the time the trial judge, Lord Chief Justice and Home Secretary were considering this case there were no expressions of remorse.
13. I turn to the submission that the minimum term should be reduced to reflect the applicant’s progress in prison. Although the 2003 Act does not refer to progress made by a prisoner during his sentence as a factor to be taken into account in determining the minimum period, it is clear from the cases that it can be: see R (Cole, Rowland and Hawkes) v Secretary of State for the Home Department [2003] EWHC 1789 (Admin); Caines & Roberts [2006] EWCA Crim 2915; Cadman [2006] 3 All ER 1255. But, as is clear from what Rose LJ stated in R (Cole, Rowland and Hawkes) v Secretary of State for the Home Department at [88] it was “inconceivable, in human terms” that exceptional progress in prison would not be taken into account. That observation has been treated as decisive.
14. It is clear from the evidence of Mr Morris, the Head of the Tariff Section in the Lifer Unit, which was before the court in the case of R (Cole, Rowland and Hawkes), from Rose LJ’s judgment in that case , and from the decision of the Court of Appeal in Caines & Roberts at [52] that the hurdle that must be overcome for progress to be regarded as “exceptional” is a high one. In Caines & Roberts it was said that the standard should be “very high” where it has been reached the impact on the tariff period is likely to be modest, that progress should be assessed when the minimum period is coming towards its end, and that it is a prerequisite that the risk assessment should be favourable.
15. As far as the standard is concerned as well as the good progress in prison that is expected of all mandatory life sentence prisoners, in broad terms what will be needed is 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.
16. It is against this background that the representations made on behalf of the applicant in this case must be assessed. I have referred to the matters upon which the applicant relies. As well as his success in a number of offender related courses, he has taken numerous educational courses, most recently completing a BSc Honours degree in International Studies. He has numerous Koestler Awards, and in Kingston prison was one of a group of lifers who gave PE lessons to children with special needs. He has been awarded a certificate as a community sports leader. In HMP Dovegate he has received a gold band learning support assistant certificate and is regarded as an essential worker with a high level of commitment to his fellow prisoners. Early in his sentence he received a Hardman Trust Award (a scheme supported by Lord Woolf Chief Justice) for his special commitment to the process of personal rehabilitation. In October 2007 he received a commendation from the Director of HMP Dovegate for what was described as his selfless contribution to the safeguarding of another prisoner who was attempting to take his own life. The letter of commendation describes the applicant’s response to an unforeseen incident as brave and a credit to him. The Director expresses his gratitude and admiration for the applicant.
17. Taking all these matters into account, in my view the applicant’s progress in his sentence so far can be described as exceptional. The Court of Appeal in Caines & Roberts, however, stated that in the context of considering a reduction in the minimum period, such progress falls to be considered when the minimum period is coming towards its end. Since the applicant is only just over half way through the 20 year period set by the Home Secretary, the indication from Caines & Roberts is that it is not appropriate for a reduction to be made on the ground of progress at the present time. I observe, however, that this means that in the case of a prisoner, the issue will depend on when his case comes before a judge to determine the minimum period. It is not entirely satisfactory that the position of a prisoner should depend on this. This issue is only an issue relevant to those whose minimum period was set by the Home Secretary before the decision in (R) Anderson v Home Secretary [2003] 1 AC 837, or for whom a minimum period has not been set. In the particular circumstances of this case, however, I have reflected the progress to date in the way I explain in the next paragraph.
18. I have concluded that the Lord Chief Justice’s recommendation of 17-18 years appropriately reflects all the mitigating factors relied on in the submissions and is no greater than that which the Secretary of State before December 2002 would have been likely to have set. Although the applicant has served only just over half of the minimum period set out by the Secretary of State, I have taken his progress into account in deciding as between the two periods referred to by the Lord Chief Justice.
19. Accordingly, I am of the view that the appropriate period to fix is 17 years. From that term the period of his remand in custody, namely twelve months and two days is to be deducted.