Minimum terms
High Court setting of minimum terms for mandatory life sentences under the Criminal Justice Act 2003
(1) Case No: 2004/46/MTS
(2) Case No. 2004/47/MTS
Neutral Citation Number: [2006] EWHC 176 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday 14 February 2006
Before :
THE HONOURABLE MR JUSTICE OWEN
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Between :
REGINA Claimant
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BRIAN ALLEYNE Defendant
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(Transcript of the Handed Down Judgment of
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Judgment
As Approved by the Court
Crown copyright©
THE HONOURABLE MR JUSTICE OWEN :
1. On 24 March 2000 Dwayne Denis Dawkins, Brian Dean Alleyne, and their co-defendant Darren John Mathews were tried on an indictment containing three counts, count 1 robbery, count 2 kidnapping and count 3 murder. Dawkins pleaded guilty to kidnapping and on count 3 to manslaughter, and was convicted of kidnapping and murder. Alleyne and Mathews pleaded not guilty to each count and were convicted on all counts. Dawkins, who was aged 20 at the date of the offences and when sentenced, was sentenced to 3 years in a young offender institution on count 1, 5 years in a young offender institution on count 2, and on count 3 to custody for life, all to be served concurrently. Alleyne who was 20 at the date of the offence, but 21 when sentenced, was sentenced to 4 years imprisonment on count 1, 6 years imprisonment on count 2, and life imprisonment on count 3, all to be served concurrently. Mathews was 17 at the date of the offence and when sentenced. On count 1 he was sentenced to 3 years detention in a young offender institution, on count 2 5 years detention in a young offender institution, and on count 3 to be detained during Her Majesty’s pleasure, the sentences to be served concurrently.
2. A fourth defendant, Jason John Canepe, who was 20 at the date of the offences, 21 when sentenced, pleaded guilty to kidnapping and was convicted on his own confession of manslaughter. He was sentenced to a total of 7 years imprisonment.
3. Mathews and Alleyne appealed against their conviction. Their appeals were dismissed on 7 February 2003. The judgment of the Court of Appeal (Crim Div) was given by Lord Justice Rix, and it contained the following account of the facts:
“On the evening of 10 June 1999 Jonathan Coles, an 18 year old A-level student went with friends, including Lyndsey Brannif whose birthday it was, to a club in Milton Keynes. In the course of events that followed their leaving the club at about 2 am on 11 June Jonathan lost his life by drowning as a result of being thrown from the crown of Tyringham Bridge into the River Ouse. It was an isolated beauty spot where, at any rate in day time, young people would swim, and some would jump off the bridge. Jonathan was 5’10” tall and of slim build. He was short-sighted and had lost his glasses when set upon and robbed by a group of youths who later kidnapped him and drove him to the bridge. He was fit, but could not swim and avoided the water … .
The terrible events of that night began when Jonathan and his friends came out of the club to go back by taxi with Lyndsey to her home in Guifford Park. Jonathan was picked on, punched and chased onto a large grassy area nearby, where he was caught. Alleyne and Dawkins admitted to punching and kicking him on the ground, and both said Matthews was involved as well. During the attack Jonathan’s bank card was stolen. Those three then got into Canepe’s car, which was parked nearby, and Canepe drove to the bank, where Matthews and Alleyne were shown on the CCTV trying to obtain money from the cash machine. They were unsuccessful, however, for Jonathan’s account was empty. This made them angry.
By misfortune Jonathan, who had been separated from his friends and was in difficulties without his glasses, was trying to obtain help or a lift by flagging down a vehicle on the road when Canepe’s car carrying the four youths came by. They stopped, and Jonathan was forced into the back seat, where traces of his blood were later found, between Matthews and Dawkins. At just after 3 am Canepe bought petrol at a garage: they then drove to Guifford Park in seach of Jonathan’s friends. Canepe parked a short distance from Lyndsey Brannif’s house and stayed in the car with Jonathan, while the other three got out and, when a taxi arrived with Lyndsey and her friends, went over to them. Alleyne said they were looking for someone. When Lyndsey asked about Jonathan, Alleyne said “don’t worry, we’ve sorted him” or possibly “yes, we’ve seen him”. While Canepe was alone in the car with Jonathan he said to him: “I would love to let you go”, but he was more concerned for himself. Before the others had got out of the car he had been told to keep Jonathan there with him, and Jonathan was told: “I know where you live and I know where your friends live.” When Alleyne was subsequently arrested, his mobile telephone was found to have both Jonathan’s and Lyndsey Brannif’s numbers entered in it. Alleyne said that Canepe was sufficiently concerned to change the number plates of his car while parked up at Guifford Park. Canepe accepted that he was petrified people might see his number plates.
It was Alleyne’s and Matthews’ case that after leaving Guifford Park they were dropped off by the other two and knew nothing of subsequent events. There remains a ground of appeal on the part of Matthews that there was no case for him to answer at the half way stage, which we will deal with below. However, despite Alleyne’s evidence that he had walked home and later ended up at Dawkins’ flat, and despite Matthews’ evidence that he had been dropped off at the top of his road and, supported in this by his mother’s evidence, that he had spent the rest of the night at home. Dawkins and Canepe gave a detailed account of how events concerning all four of them ended in the tragedy at Tyringham Bridge. Since their case was that they were not at the bridge, Alleyne and Matthews could not assist the jury as to what had happened there. Subject to Matthews’ rather half-hearted ground of no case to answer, he and Alleyne are compelled on this appeal to accept the account of Dawkins and Canepe, and to some considerable extent even rely on it.
Dawkins had pleaded guilty to kidnapping and manslaughter and had accepted his guilt on the robbery count during trial. In his evidence he said that after they had left Guifford Park Matthews had made the suggestion of taking Jonathan swimming. At first he described this as a light-hearted suggestion, but he came to acknowledge the seriousness of what was happening. Then they came to Tyringham Bridge, which he did not know. He could not swim. Alleyne, Matthews and he got out of the car with Jonathan; Canepe stayed in it. They manhandled Jonathan over to the crown of the bridge, where the drop into the water from the parapet is about 25 fee, although he said that it looked about 15 feet. Jonathan there said that he could not swim. “When Jonathan said he couldn’t swim I felt it was a bit strange. I thought of myself and I knew what he was going through.” However, he agreed that he played his part at the bridge, “to increase his terror”. The other two put Jonathan, struggling, over the parapet. When Jonathan sought to cling on to the parapet, Matthews hit him on the back of his hands until his grasp was loosened and he fell into the middle of the river (which was about 64 feet wide at that point). Dawkins saw Jonathan surface and start doggy paddling towards the left bank. He got near to a log on the side of the bank and Alleyne and Matthews went down from the bridge to the bank there. Jonathan got about a foot from the log and was saying “Help”. The other two stayed for a few seconds. He then returned to the car, which he reached about the same time as the other two. On the way back things were said such as “I hope he’s made it” and “I wonder if he’s made it”, but he did not recall by whom.
Dawkins was asked why he had not intervened to stop Jonathan being thrown into the river, and he said “I wish that I had now”. He agreed that, as a non-swimmer himself, he would get into difficulties and drown if dropped from the bridge, unless someone else saved him. But he said: “Drowning did not cross my mind at any stage. At the time I thought somehow that he would get across.” He also said that he assumed that Jonathan had made it to safety, or had come very close to doing so, before he had returned to the car. The judge commented to the jury: “… you will remember his evidence, that the deeper and more searching the questions that were being asked the more unhappy and uncomfortable Dawkins was in answering them. He was obviously remembering the events at Tyringham Bridge. ”
4. In his report to the Home Secretary the trial Judge assessed the relative culpability of the defendants and of Mathews in the following terms:
“ALLEYNE – The leader and driving force behind a prolonged deliberate and very cruel incident, with truly disastrous consequences. The murder was motiveless other than (possibly) the prosecution’s suggestion that the defendants chose to get rid of an inconvenient victim/witness to robbery or (possibly more likely) that as time wore on the defendants found themselves enjoying their domination over a “nerd” as he was referred to, and their behaviour becoming worse and worse, they descended to what was to them the ultimate satisfaction of his destruction. Alleyne apparently revelled in giving evidence and “holding the stage”, as even then he showed-off to the others. No remorse. 15 years.
MATHEWS – Had not met Alleyne before that night, but very quickly became his all too enthusiastic henchman. Intelligent. Very close to Alleyne in culpability, but a good deal younger. In large part the form of killing was his idea. Indulged in and enjoyed the horrific treatment of this young victim. No remorse. 12 years.
DAWKINS – Somewhat reluctant, but necessary participant. Whilst not quite admitting his full part in the offence (he denied holding J’s legs as he was being bundled over the bridge) he gave much detailed evidence and obviously truthful evidence implicating himself and the others. Accepted that they had “gone beyond the ambit of civilised behaviour ”. Now deeply remorseful. 9 years.”
5. A statement has been submitted by the family of the deceased setting out the devastating impact that his death has had. The statement was made in response to a notification that due to a change in the law his family had the right to make a Victim Personal Statement. The Statement concludes in the following terms with which one cannot but feel the greatest sympathy:
“It is now five and a half years since Jonathan was murdered in June 1999. I would have thought that at this junction that all the due legal niceties would have long gone by.
1. But no, the whole sad affair has to be dragged up again, the feelings of sadness, grief and anger have to be re-visited on the whole family. Those that were affected by this bitter blow has once again had it visited upon them. To what avail will this view review of a just sentence do? Will it make the pain the less felt, or the reason why the crime was carried out come to light?
2. At the time of the trial I could feel a measure of pity and some forgiveness of the four young men who committed this crime, but as time has gone by and appeal of sentences have gone on this is beginning to change to that of disbelief in the judicial framework and my heart begins to harden.”
6. No written representations as to the minimum term have been submitted by or on behalf of Dawkins. His solicitors simply rely upon the mitigation submitted on his behalf when sentenced. Written representations have been submitted by the solicitors acting for Alleyne.
7. In setting the minimum terms I take account of the general principles set out in Schedule 21 of the Criminal Justice Act 2003. The case does not fall within paragraphs 4(1) or 5(1) of Schedule 21. I therefore take as the starting point in each case a term of 15 years. But I also take account of the guidance contained in the Lord Chief Justice’s letter of 10 February 1997 set out at paragraph IV.49.18-21 of the Practice Direction issued on 29 July 2004.
DWAYNE DENIS DAWKINS
8. In passing sentence on Dawkins the trial Judge stated that he saw him in a different light to Alleyne and Mathews. It was his belief that Dawkins had been carried away by events as a they were unfolding, and that he became a necessary but reluctant participant. He accepted that the offences were out of character, and expressed the belief that Dawkins was profoundly ashamed and remorseful.
9. Dawkins acceptance of responsibility for the part that he played in the tragic death of Jonathan Coles and his remorse and regret is also apparent from the decision by the parole board in its review of his life sentence dated 12 August 2005, which contains the following passage:
“Mr Dawkins behaviour in custody has not posed any control problems. There have been no reports of any violence or aggression on his part. His risk areas were identified as instrumental aggression, alcohol as a disinhibitor, easily led and kidnapping. He has adopted a constructive approach to his sentence, has participated fully in sentence planning and has completed a range of work including Assertiveness, Reasoning and Rehabilitation, Anger Management, Alcohol Awareness, and Victim Awareness for Lifers which was completed by means of one to one work with the Prison Psychologist. He has also worked on his educational and vocational skills. His long-term plan is to complete the Business Studies Course that he commenced when he was at Sixth Form College. He has achieved all the targets set in his life sentence plan. He is on enhanced status and latterly has been given a number of escorted town visits without any reported problems.
Mr Dawkins is said to fully acknowledge his guilt and responsibility for the death of his victim. He has always expressed regret and remorse and describes the death as a great tragedy and an event that should not have taken place. He now has a good understanding of the risk factors that underpinned his offending behaviour. He is said to have developed his internal self-control, increased his interpersonal skills, and continued to mature. He presents as a calm, mature, and sensible young man, who has used the experience of prison to change his behaviour and attitudes. ”
10. Taking account of Dawkins relatively young age at the date of the commission of the offences, his acceptance of responsibility by both in his plea of guilty to manslaughter and in his evidence to the court, in marked contrast to the position taken at trial by Alleyne and Mathews, and the trial Judge’s conclusions as to his role, the trial Judge was in my judgment correct to recommend a minimum term of 9 years. Accordingly the minimum term will be fixed at 9 years less the period that had been spent in custody on remand, a period of a little over 9 months, giving a minimum term of 8 years 3 months.
BRIAN DEAN ALLEYNE
11. There are three strands to the representations made on behalf of Alleyne. First submissions are made as to his role in the killing and as to his culpability. Issue is taken with the trial Judge’s assessment of the defendant as the “leader and driver behind all that happened after the robbery.” It is suggested that the evidence “… does not necessarily support His Honour Judge Riviln’s interpretation of events.” There are two points to be made as to that. First the defendant advanced what is now acknowledged to be a lying defence at trial, a defence of alibi, and accordingly gave no evidence as to his role in the killing. Secondly the trial Judge had the advantage of hearing the evidence given at trial, and of seeing the manner in which the defendant gave his evidence. I find no basis for rejecting the conclusions at which he arrived as to the defendant’s role. In the case of Mathews the Lord Chief Justice recommended a minimum term of 12 years? It is submitted on behalf of Alleyne that he was not more culpable than Mathews, and that in consequence the minimum term should also be fixed at 12 years. But Mathews was much younger, only 17 whereas the defendant was 21. Secondly the learned trial Judge concluded that on the evidence before him Mathews had been inspired by the defendant’s leadership.
12. The second argument advanced on behalf of Alleyne is that he now belatedly accepts responsibility for his actions and expresses remorse and regret at the death of the deceased. A copy of the letter that he has written to the family of the deceased is attached to the written submissions. In it he says that he is ashamed that he didn’t have the courage to tell the truth at trial, and that since the death of the deceased he has felt “an immense pressure of guilt, shame, regret and sorrow.” It is to his credit that he has now written in such terms. But any mitigating effect is greatly reduced by the fact that he advanced a lying defence at trial, and that his expressions of regret and remorse were only made after his conviction.
13. Thirdly reliance is placed upon his personal circumstances, in particular his separation from his partner and his child who was born in September 1994, five months after the commission of the offences. I accept that it has made him more aware of the depth of the pain and despair that he has caused the family of the deceased.
14. In my judgment the defendant is entitled to some credit for his belated acceptance of responsibility for his actions, for his recognition of the suffering that he has caused, and for the remorse that he now expresses. I have come to the conclusion that the minimum term should be fixed at 14 years less the period spent in custody on remand a period of just over 9 months, giving a maximum term of 13 years 3 months.
15. The minimum term is the minimum amount of time that the defendant will spend in prison from the date of sentence before the parole board can order early release. If it remains necessary for the protection of the public, the defendant will continue to be detained after that date. When the defendant has served the minimum term, and if the parole board decides to direct his release, he will remain on licence for the rest of his life and may be recalled to prison at any time.