Minimum terms
High Court setting of minimum terms for mandatory life sentences under the Criminal Justice Act 2003
Case No: 2004/608/MTS
Neutral Citation Number: [2005] EWHC 2011 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 28 July 2005
Before :
THE HONOURABLE MR. JUSTICE MCCOMBE
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Between :
R
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STUART AHERNE
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(Transcript of the Handed Down Judgment of
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Judgment
As Approved by the Court
Crown Copyright ©
Mr. Justice McCombe:
1. I have before me a reference to the Court under Section 276 of, and paragraph 6 of Schedule 22 to, the Criminal Justice Act 2003 (“the Act”) of the case of Stuart Aherne. On 16 October 2003 at the Crown Court at Manchester Mr. Aherne was convicted by unanimous verdict of the jury of the murder of Jean Ryder on 21 February 2003. He was also convicted by the same jury of an offence of wounding with intent (contrary to Section 18 of the Offences against the Person Act 1861). The date of that offence was 14 February 2003 and the victim was Darren James Gaynor. On the day of conviction he was sentenced by me to life imprisonment for the murder and to 5 years in custody for the Section 18 offence. Mr. Aherne had not been notified, before the commencement of the Act, of a minimum period to be served before his release. Therefore, the case is referred to me for the purpose of making an Order under subsection (2) or (4) of Section 269 of the Act.
2. After passing the life sentence referred to above, but before the commencement of the Act, I made a report (“my report”) to the Home Secretary, in accordance with the practice then in operation, recommending the proper length of term that ought to be served for the purposes of retribution and general deterrence. I stated my view that the proper length of detention for these purposes was 10 years. That view was reached having regard to the terms of the Practice Direction of 31 May 2002 then in force. The offence had been committed on 14 February 2003.
The circumstances of the offences were set out in paragraph 6 of my report and I repeat this passage below. The passage wrongly indicated that the offences had been committed in February 2001, whereas the correct date was 2003.
“This 19 year old man was convicted of these two offences which involved the stabbing of two victims. The offences occurred on 14th and 21st February 2003 on the streets of Wyhtenshawe, Greater Manchester, where the defendant lived. The section 18 offence was committed on the 14th and the murder on 21st. each occurred at about 9 pm on the night in question.
The evidence told little about the defendant’s background and nothing was said in mitigation to fill this gap. All the main participants lived in Wythenshawe. The defendant seems to have moved from his parents, home to reside sporadically with either a neighbour or his girlfriend. He was unemployed. Little else is known.
Count 1
On 14th February, the defendant and a group of his friends had been drinking at the house of the neighbour already mentioned. They decided to go out, probably to the home of another friend nearby. Very quickly the group became separated. This defendant went into a local park. The men in the group went to the friend’s house and two girls went to some local shops. In the park was a group of younger people (15 or 16 years old), perhaps twelve to fifteen of them, most of whom had just emerged from a local youth club. The defendant said he thought that one of this latter group had been involved in some separate trouble with one of his friends. Some ill-defined dispute arose. The defendant described the other youths as being “cocky” towards him and demanding cigarettes from him. The others spoke of the defendant showing scars on his arms and saying he was “not right in the head”. During the course of this argument the girls from the defendant’s group re-emerged. The defendant and perhaps four of the other group went to join them. The defendant said that, even before this, he had returned to the neighbour’s house and had taken two “butter knives” (table knives) to “prove a point” and to “show them who’s boss”. Outside the park, according to the defendant, the other youths had continued to be “cocky” towards him. The victim said he bent to recover a coin and had felt what he thought was a punch to his back. It was, in truth, a stab. His immediate reaction to his friends was that it was not serious and did not hurt. It had, however, penetrated three layers of clothing and the skin. None of the others present saw the blow being struck. The defendant then went to his girlfriend’s home; she described him as distraught and overwhelmed by what had happened.
Although the victim was taken to hospital, nothing further happened with regard to this offence until the defendant was arrested in respect of the murder. During the course of a series of interviews he was arrested in respect of this incident also. At trial he pleaded guilty to an offence under S.20 of the 1861 Act; the jury convicted of the more serious offence.
Count2
During the days immediately following the first incident, the defendant was seen by two of his friends, on two separate occasions, to be carrying a knife. He said it was for his own protection. Certainly, there was evidence that, after the incident on the 14th, the defendant was in fear of persons looking for retribution for the events of that day. On the evening in question a window/windows at his parents’ home had been broken and damaged had been done to his fathers’ car.
The victim of count 2 was a well-known local figure. She was identified by witnesses as a person seen in a drunken state in this area on earlier occasions. She had had a long standing, but turbulent and violent, relationship with a man who was also an alcoholic. On 21st February she had become drunk during the course of the day. She had argued with this man, who did not want her to go out again. She defied him and went out.
She was seen at about 8.25 pm by a witness (who had known her since school days) pursuing a young man (not apparently the defendant) across a road. At about 8.50 pm she approached a young lady in the street and started to hug her for no reason. A man was said to be with her. At 8.56 pm the defendant was in a Victoria Wine shop close to where the second victim had been with the young lady. He was filmed on a CCTV in the shop. He was wearing light coloured clothing and a woollen hat. He bought a can of lager.
Thereafter, the victim was seen by a series of witnesses at various points on the road where the wine shop was. Latterly she was seen at a bus-stop, close to where she met her death. All the witnesses described her as being with a man. The descriptions varied; several described the man as wearing a baseball cap and dark coloured trousers, i.e. descriptions at variance with the clothing seen on the defendant in the CCTV film. The deceased died from a single stab wound to the back inflicted shortly before 9.20 pm when her body was found. The defendant arrived at his girlfriend’s home shortly before 9.40 pm; she described him as being normal and calm in contrast to his sate on the previous Friday.
Although two witnesses picked out the defendant’s clothing in a video identification procedure later, several did not do so and none identified him in the parade that was held, The Crown conceded that on this evidence the prosecution could not have proceeded. (On the evening of the incident the deceased’s partner was arrested on suspicion of murder. At the time of his arrest he was wearing clothing that resembled that described by some of the witnesses as worn by the man seen with the deceased.)
A can of lager with the defendant’s DNA was found in a bin at the bus-stop where the deceased had been seen with a man. When the murder was reported publicly the defendant told his girlfriend that he remembered giving a lady a sip of his drink one evening, although the evening when this occurred was not clear to her. In evidence, the defendant said he had no recollection of seeing the lady on 21st February and had no special recollection of the evening. His evidence about the remark to his girlfriend was not satisfactory and probably influenced the jury against him.
On 26th March, the defendant confessed to a friend that he had been responsible for the killing. The friend accepted in his evidence that, following the incident on the 14th, a “joke” had been going around about the defendant stabbing people with “butter knives” and that similar remarks had been made when reports of the murder appeared in the press and elsewhere. The friend said he did not believe the defendant’s confession at the time and that he still did not believe it. The defendant admitted that he had “confessed” to the friend but said that he had done it in shock; it was not true.
One of the witnesses who saw the deceased at the bus-stop shortly before her death described her as arguing briefly with a man about who should pick up a “chip paper” that man had dropped. There was a lurking suggestion that this incident may have triggered the attack upon the deceased, but it was not suggested with any force by the Crown that this was in fact the case. The motive for the killing was not clear on the evidence.”
3. I would add that I have now had before me representations made on Mr. Rogers’ behalf, including background statements from Mr. Aherne himself, his parents and his long-standing girlfriend, Jennifer Hadley, together with other references and materials from the prison and probation services and others. That material includes indications that Mr. Aherne has made considerable progress with his own personal development while he has been in custody. It appears that Mr. Aherne now accepts responsibility for the Section 18 offence but not the murder.
4. On this reference I now direct that Section 28(5) to (8) of the Crime (Sentences) Act 1997 (“the early release provisions”) are to apply to this offender as soon as he has served that part of his sentence as is specified below. I must now consider the seriousness of the offence and the effect of any direction I would have given for crediting periods of remand in custody. The relevant period of remand is 6 months and 11 days.
5. In considering the seriousness of the offence I am required to have regard to the general principles set out in Schedule 21 to the Act and any relevant sentencing guidelines which are not incompatible with those principles (see section 269(5) of the Act). In this type of “transitional case” in specifying the relevant part of the sentence (“the minimum term”), I must not make an order specifying a period 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 notify as the relevant minimum term: see paragraph 8 of Schedule 22 to the Act.
6. Under the principles set out in Schedule 21, the relevant starting point for the setting of the minimum term would have been 15 years. I would then take into account aggravating and mitigating factors. It seems to me that none of the aggravating factors set out in paragraph 10 of Schedule 21 applies to this case. Of the mitigating factors in paragraph 11, (a) (no intention to kill), (b) (lack of premeditation) and (c) (the age of the offender) are applicable. With regard to the last matter, it is to be recalled that the “starting point” for an offender who is aged under 18 years old when he committed the offence is always 12 years. In this case, Mr. Aherne was 18 years and 5 months old when he committed the offence.
7. Having regard to those matters, I would have set a minimum term of 11 years. However, for the reasons already identified, I am required not to specify a term greater than that which would (in my view) have been notified by the Secretary of State under the old practice. To that question I now turn.
8. Under the Practice Direction (Criminal Proceedings: Consolidation), paragraph IV 49 (as substituted by the Practice Direction (Crime: Mandatory Life Sentences)(No. 2) of 29 July 2004), it is indicated that for offences committed after 31 May 2002 (as in this case) the judge should apply the principles set out in the Practice Statement of that date: see paragraph IV. 49.22. This was the practice statement that was in fact applied by me in making my recommendation in my report in which I suggested a period of 10 years as the relevant period for the purposes of retribution and deterrence.
9. I consider, in all the circumstances, therefore, that it should not specify a minimum term greater than that which I specified in my report. I, therefore, specify a period of 10 years (less the period spent on remand namely 6 months and 13 days) for the purposes of the Act as being the minimum term to be served before the Parole Board can consider the offender’s release.