Minimum terms
High Court setting of minimum terms for mandatory life sentences under the Criminal Justice Act 2003
Neutral Citation Number:
2006 EWHC 436 QB
Case No: 2004/23/MTS
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Date_______________________
Before:
THE HON. MR. JUSTICE MCKINNON
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Criminal Justice Act, 2003, Schedule 22
Judge’s Order under Section 269
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R E G I N A
-v-
KEVIN ARTEMIO ALVARADO
McKinnon, J :
D EC I S I O N
1. I am required by section 269 (3) of the Criminal Justice Act 2003 to set such minimum term as I consider appropriate taking into account the seriousness of the offence. In arriving at that minimum term, there are four steps which I am required to take as the murder here was committed before 18th December 2003.
2. The facts are taken from the report of the trial judge, His Honour Judge Tilling, to the Home Secretary. The defendant was out drinking with friends in Reading. He had an altercation in a public house with the victim, Scott Davies. He was thrown out but the two met outside again by chance. The victim, Scott Davies, attacked the defendant with fists. Two friends of the defendant joined in to help him and in the ensuing struggle the defendant drew a butterfly knife he had taken with him and stabbed the victim nine times in the course of the incident which lasted a total of 32 seconds. It was all captured on CCTV.
3. The first step is to choose one of three starting points, whole life, 30 years or 15 years. In my judgment, it is appropriate to take the starting point of 15 years. That is because this case falls within the category of an offence, the seriousness of which is neither exceptionally high nor particularly high within paragraphs 4 (1) or 5 (2) of Schedule 21 to the Criminal Justice Act 2003. The defendant was born on 17th November 1982 and was thus 18 years of age at the time of the murder which was committed on 14th July 2001.
4. The second step is take account of any aggravating or mitigating factors which would justify a departure from the starting point of 15 years. The aggravating features are the possession of the butterfly knife and the taking of drink and ecstasy during the evening. I do not see either of those matters as increasing the starting point. The mitigating features are the defendant’s plea of guilty, his previous good character, the fact that the victim attacked the defendant first and the defendant’s age – he was 18 at the time. I would reduce the starting point by 4 years by reason of those features, thus arriving at 11 years. I do not regard the defendant’s improvement in prison as sufficiently exceptional to justify any further reduction. Thus, the starting point is 11 years.
5. The third step is to deduct from the starting point of 11 years the precise time that the defendant spent on remand in custody. That is 7 months and 17 days. So, in broad terms, (not being entirely precise) I arrive at a proposed minimum term of 10 years.
6. The fourth step is to check whether that proposed term is greater than the term which the Secretary of State would probably have notified under the practice followed by the Secretary of State before December 2002. Where, as here, the murder was committed before 31st May 2002, the best guide as to what would have been the practice of the Secretary of State is the letter sent to judges by Lord Bingham, CJ on 10th February 1997. Following the practice of Lord Bingham, I take as the first step the period actually to be served for the “average”, “normal” or “unexceptional” murder as 14 years. The next and final step is to look at the factors capable of mitigating the normal penalty and the factors likely to call for a sentence more severe than the norm. Here, the aggravating factors are as set out in paragraph 4 above. I therefore arrive at a minimum term of 10 years.
7. Accordingly, I set the minimum term that the defendant must serve before the Parole Board can consider his release on licence as one of 10 years. That minimum term is the minimum amount of time 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. Where the defendant has served the minimum term and the Parole Board has decided to direct release, the defendant will remain on licence for the rest of his life and may be recalled to prison at any time.