Minimum terms
High Court setting of minimum terms for mandatory life sentences under the Criminal Justice Act 2003
Neutral Citation Number: [2006] EWHC 356 (QB)
Case No: 2005/10/MTR
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 16/03/2006
Before :
MR JUSTICE MITTING
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Between :
Regina Claimant
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Chevern Obinna Anozie Defendant
Mr Justice Mitting
1. The defendant was convicted on 16th May 1995 of the murder of Wilfred Walbrook on 16th January 1994. He was 20 at the date of the offence and 22 at the date of trial. The trial judge, Smedley J, recommended a tariff of 14 years. The Lord Chief Justice made a recommendation which is said to be ambiguous: “before reading the trial judge’s recommendations I had in mind 15 years, but he heard the case.” I interpret that to be a recommendation of 15 years, coupled with an acknowledgment that the trial judge’s recommendation of 14 years was one which the Home Secretary should consider. By a letter dated 26th September 1995, the Home Secretary notified a tariff of 15 years. He said that he did so “in line with the Lord Chief Justice’s recommendation”.
2. I take the facts from the trial judge’s description of the offence, of the circumstances in which it was committed and his assessment of the relative culpability of the co-defendant. In the early hours of the morning, the defendant was ejected from a blues party in Leicester by the doorman, Wilfred Walbrook. At 5am, an incident occurred in which Wilfred Walbrook was shot at from a Fiesta motorcar. Minutes later, 10 shots were fired from a handgun by the co-defent Denver Hackshaw (then aged 21) from the Fiesta, two of which hit and killed Wilfred Walbrook. The defendant was driving the Fiesta. After the car had sped off, Hackshaw and the defendant changed places. The car crashed while Hackshaw was driving.
3. The defendant’s role was described by the judge as that of driver, driving Hackshaw and another man around the streets realising that one or both of them was likely to fire the handgun with the intention of killing or seriously wounding Wilfred Walbrook.
4. The trial judge stated in his recommendation that he saw no reason to distinguish between Hackshaw and the defendant and recommended the same minimum term for both.
5. In setting the minimum term, I am required to have regard to the matters set out in paragraph 4 of Schedule 22 to the Criminal Justice Act 2003. This is also a case to which the prohibition on setting a minimum term greater than the tariff notified to the defendant by the Home Secretary in paragraph 3 (1) (a) of Schedule 22 is relevant.
6. I have read written representations made by the defendant to the Home Secretary dated 8th August 1995 and, “to whom it may concern” by the family of the victim and, in response, by the defendant. I have read written representations made by the defendant’s solicitors dated 26th January 2005. Those written representations do not address the approach which I am bound, by Statute, to adopt.
7. Paragraph 4 (1) (a) of Schedule 22 requires me to have regard to the seriousness of the offence; and paragraph 4 (2) (a) requires me to have regard to the general principles set out in Schedule 21 when considering the seriousness of the offence. In the case of an offender such as the Defendant aged 18 or over when he committed the offence, paragraph 5 (1) and (2)(b) requires me to take as the appropriate starting point, a minimum term of 30 years, because the murder involved the use of a firearm. The defendant’s solicitors submit that the fact that the defendant was not personally responsible for inflicting violence, unlike Hackshaw, is both a significant mitigating feature and a ground for distinguishing between the two. The trial judge did not agree. Nor do I. A man who drives a gunman around the streets realising that he is likely to fire with lethal intent at a particular victim is just as culpable as the gunman himself. The killing could not, in the circumstances, have occurred without the participation of both. Nor would I make any distinction between the two on the ground of the slight difference between their ages. If this event had occurred after 18th December 2003, I would have set a minimum term of 30 years, less time spent in custody.
8. The defendant’s solicitors submit that the Home Secretary misunderstood the Lord Chief Justice’s recommendation. Again, I disagree. The Lord Chief Justice put forward his own recommendation on the papers, a recommendation that the Home Secretary was entitled to, and did, accept when he notified the tariff. Further, and in any event, the prohibition in paragraph 3 (1)(a) of Schedule 22 is on setting a minimum term greater than the tariff actually notified. Schedule 22 contains no provision which would entitle me to review the basis upon which the tariff notified by the Home Secretary was arrived at by him. I am required by paragraph 4 (2)(b|) to have regard to the minimum term notified by the trial judge; but having regard to the general principles set out in Schedule 21, as I am required to do by paragraph 4 (2)(a), I have no hesitation in preferring the tariff notified by the Home Secretary to that recommended by the trial judge.
9. Because the notified minimum term is less than that produced by the application of those principles, I am required by paragraph 3 (1)(a) of Schedule 22 to set the minimum term at 15 years, less the time spent on remand. Under paragraph 4 (1)(b) of Schedule 22, the whole period spent on remand – 15 months and 19 days – should be deducted for the purpose of setting the minimum term.
10. For the reasons given, I direct that the provisions of Section 28 (5) - (8) of the Crime (Sentences) Act 1997 are to apply to the defendant as soon as he has served 13 years 8 months and 11 days after the date upon which he was sentenced.