Minimum terms
High Court setting of minimum terms for mandatory life sentences under the Criminal Justice Act 2003
Neutral Citation Number: [2006] EWHC 1727 (QB)
Case No: 2004/605/MTS
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 26/07/2006
Before :
The Honourable Mr. Justice McCOMBE
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R
v
Hassan AKOYA
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Mr. Shorrock QC and Mr. Fryman appeared for the Prosecution
Mr. Gozem QC and Mr. Simons appeared for the Defendant
Date of sentence: 3 November 2003
Manchester Crown Court
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Approved Judgment
Mr. Justice McCombe :
1. This is a reference to the High Court under Section 276 of, and paragraph 6 of Schedule 22 to the Criminal Justice Act 2003 of the case of Hassan Akoya. On 3 November 2003 at the Crown Court at Manchester Akoya pleaded guilty before me to the murder on 17 April 2003 of Paul Whitehurst. He was sentenced to life imprisonment. The reference is now made to the Court for the purpose of the making of an Order for the application of the provisions of section 28(5) to (8) of the Crime (Sentences) Act 1997 (the early release provisions) as soon as he has served that part of the sentence which is specified in the Order now to be made. The reference, therefore, is for the purpose of setting the minimum term (and I emphasise “the minimum term”) which is to be served by Akoya before he may be considered by the Parole Board for release from custody. Whatever term is now fixed and whatever decision the Parole Board may reach in this case, Akoya remains subject to his present sentence for the remainder of his life; if he is released at any stage hereafter, he will remain on licence and will be liable to recall to prison at any time.
2. This is a case where the offence was committed prior to the commencement of the relevant provisions of the Criminal Justice Act 2003. It is, therefore, a “transitional case”.
3. In considering this reference I have had before me my report to the Home Secretary of 10 November 2003, a psychiatric report on Akoya of 1 May 2003, the transcript of the sentencing hearing on 3 November 2003, representations by Akoya's solicitors dated 2 March 2006 and a statement dated 22 February 2005 of the victim's mother, Mrs. Yvonne Whitehurst. The psychiatric report referred to was before me when I sentenced Akoya in November 2003. I have considered each of these documents and will refer to passages from each in this judgment.
4. The facts of the case can be conveniently summarised by reference to paragraph 6 of my report to the Home Secretary which reads as follows:
“On the day of the trial the defendant pleaded guilty to the murder of Paul Whitehurst on 17 April 2003. On that day the defendant went to the home of his estranged wife, Diane Akoya. The victim was there with a friend (a Mr. Tiffany) doing some DIY work in the house. The defendant's wife and the victim's wife, Angela Whitehurst, were also present. The defendant and his wife had separated in about April or May 2002. The wife had begun a relationship with another man. This relationship seems to have preyed on the defendant's mind and he seems to have formed the view that the deceased and Angela Whitehurst (who had been friends of his and his wife's) had concealed their knowledge of this relationship from him. When the defendant saw the deceased, he lost his temper and carried out a frenzied attack on him with a large kitchen knife. The deceased was taken to hospital and, in spite of several surgical interventions in the following weeks, he died on 15 May 2003.
By way of background, the defendant and his wife were married in 1993 and have three children. Each had been married before and the defendant had two children by his previous marriage. After custody proceedings in Cyprus relating to the defendant's children, all five children lived with the defendant and his wife in the United Kingdom. The wife was the breadwinner and the defendant stayed at home looking after the children and the household. After the separation, the defendant (as described by his Counsel) blew hot and cold about his children. His wife considered that he should at least assume responsibility for the two children of the earlier marriage. Shortly before 17th April, these two children were taken into care.
On the morning in question the defendant had been to see a social worker involved with his children's welfare. He became emotional and upset at the meeting and remained so in a telephone conversation with this person at about noon that day. He went initially to his mother's home and arrived at his wife's home not long thereafter. The defendant called Mrs. Whitehurst “two-faced”. Mrs. Akoya tried to persuade the defendant that Mrs. Whitehurst was not involved or to blame. The defendant and his wife began to argue. He went upstairs at one stage to look for his wife's boyfriend. On returning downstairs he saw the deceased and said something like, “You bastard, you knew”. Mr. Whitehurst said it was nothing to do with him.
Mr. Tiffany remembers seeing the defendant reach into the left side of his trousers and seeing him with a knife in his right hand. He then went for the deceased. (As can be seen from the mitigation, the defendant said that he perceived some type of threat from the deceased towards him. – p.4 A-B) They ended up on the garden patio, with the defendant on top of Mr. Whitehurst. Mr. Whitehurst was smaller than the defendant and the defendant seemed to punch the deceased to the chest several times. Mrs. Akoya tried to pull the defendant off the deceased. The defendant kept saying, “You bastard”, to him. Mr. Tiffany tried to intervene but the defendant turned on him and said something like, “Do you want some?” Mr. Tiffany retreated.
The defendant left Mrs. Akoya's home. The deceased was taken to hospital. He was found to have at least five stab wounds on his right chest and flank. He had a slash wound across the centre of his chest and two defensive wounds to the right arm. As indicated, treatment was in vain and he died on 15th May.
The defendant called the police himself at about 12.50 pm. He said that he had stabbed his wife's friend and said that he wanted the police to arrest him. He said he still had the knife with him. He gave his whereabouts and he was arrested at about 1 pm. A knife was at his feet and he acknowledged that he had used it in the stabbing. At 7.30 pm he was seen by a police surgeon who found no recent injuries on him. He was later arrested for attempted murder.
In interviews on 17th and 18th April he told the police that he had no intention to kill Mr. Whitehurst, but otherwise he made no comment. He did, however, ask after Mr. Whitehurst's welfare. After interview on 18th April he was charged with attempted murder.
On 28th May the defendant was re-arrested for murder. He was re-interviewed. He said he had arrived at the house unannounced. He had expected only his wife and children to be there. He had had no previous dispute with the deceased. He denied calling Mrs. Whitehurst a “two-faced bitch”. He denied shouting or calling the deceased names. He denied going for Mr. Whitehurst and said it was the deceased who had advanced towards him with something in his hand and swearing. The defendant said he had been beaten before in the house. He said he was in fear of being beaten again and took the knife from the floor. He denied bringing the knife into the house himself. (However, all witnesses who were asked about the knife denied knowledge of it. The defendant's mother, from whose house the defendant had come immediately before the incident, was not asked about the knife.) The defendant said he had not seen a knife on the floor, only something. He picked the “something” up. He only recalled having the knife after he had left his wife's home after the incident. He said everything had happened quickly and said, “I lost myself, but once I found myself outside…from then I remember”. He said he could not remember attacking the deceased because he had “lost himself”. He had heard someone shouting, “let him go”, but he could not believe what was happening. He admitted responsibility for stabbing the deceased but said he did not intend to kill or harm him. He was asked about his wife's new relationship and said, “It hurted [sic] my heart”.
At the end of the interview process he repeated that he did not go to the house intending to hurt the deceased or anyone else. He said the deceased was his friend. He said he wanted to apologise to the deceased's wife and family and to say that he was sorry.
The expression of remorse was repeated through his Counsel in court. It was said that he maintained that he had not brought the knife to the scene but was adamant that he did not wish anyone to relive the events of the day in question. He accepted that he would have lost the trial of any issue about the provenance of the knife.
The deceased was a married man with two children.
Short references before the Court from prison officers spoke well of the defendant as a worker in the prison and generally.”
In 2003, I recommended to the Home Secretary a minimum term of 12 years.
5. In her statement, the victim's mother, Mrs. Whitehurst, states that at trial, “Akoya was given fourteen years, which is called life. LIFE SHOULD MEAN LIFE…” This is a not uncommon, and wholly understandable, sentiment of those deprived of their loved ones in such horrific circumstances. In all cases, courts dealing with references such as the present strive to set out their full reasoning for the orders made. In reaching the conclusion that I do in this case, I shall endeavour to explain the governing legislation passed by Parliament and the Practice Directions as they apply to this case and the result that I consider follows from those provisions.
6. First, Section 269(2) of the Act requires the Court to order that section 25(5) to (8) of the Crime (Sentences) Act 1997, the “release provisions”, shall apply to the offender after the specified minimum term determined by the court unless it makes an order under subsection (4) of section 269 that the early release provisions are not to apply. In determining that question, which addresses the seriousness of the offence, the court must refer to the principles set out in Schedule 21 to the Act.
7. The Schedule sets out the principles which are to guide the Court in determining the “starting point” for the minimum term. Paragraph 4(2) of the Schedule states that the appropriate starting point is a “whole life order” where the Court considers that the seriousness of the offence is “exceptionally high”. All murders are, of course, serious and to those immediately affected by the offences, the seriousness is always “exceptionally high”. However, Parliament and the courts have had to recognise the reality that even among the various examples of this most serious offence, the seriousness will vary. Thus, in paragraph 4(2) of Schedule 21 of the Act, Parliament identifies cases which would normally fall within Paragraph 4(1) and the seriousness of which would, therefore, be considered “exceptionally high”. Those cases are a) the murder of two or more persons, involving substantial premeditation, abduction, sexual or sadistic conduct, b) the murder of a child involving abduction or sexual or sadistic motivation, c) murder for a political, religious or ideological cause, d) murder committed by an offender previously convicted of murder.
8. Paragraph 5 of Schedule 21 deals with cases where the court considers the seriousness of the offence is “particularly high”. Again, examples are given in paragraph 5(2). They include: murder of a police or prison officer in the course of his duty, murder involving the use of a firearm, murder for financial gain (eg in the course of a robbery) and murder involving sexual or sadistic conduct. For such offences, the prescribed “starting point” for the minimum term is set by Parliament at 30 years.
9. In other cases of murder, the prescribed “starting point” for the minimum term is 15 years: paragraph 6 of Schedule 21.
10. It will be understood from the above, that the present case does not fall within the type of murder of which Parliament has determined should warrant a starting point other than 15 years under the law as it now is under the 2003 Act.
11. Having identified the relevant starting point the Act requires the court to take into account any aggravating or mitigating factors, to the extent that they have not already been considered in choosing the “starting point”. Again, exceptions of such matters are given in Schedule 21. Of the examples of “aggravating factors” given, I consider that only that specified in paragraph 10(c), namely “mental or physical suffering inflicted on the victim before death”; applies. Mrs. Whitehurst's statement refers to the suffering of her son in the period between the attack and his death nearly a month later. The Practice Direction (Crime; Victim Personal Statements) [2001] 1 WLR 2038 deals with the courts approach to such statements. The statement before the Court is not in the prescribed form, as the Practice Direction requires. However, it is in my view legitimate, having regard to the nature of the deceased's injuries, his survival in consciousness for several weeks and the intensity of medical intervention to infer that the victim must have suffered significantly before death. The statutory examples are inclusive and not exclusive. Thus, I still consider it to be an aggravating factor (as I did in November 2003) that Akoya accepted that he would have been found by the court to have brought the murder weapon with him to the scene, perhaps to harm someone other than Mr. Whitehurst.
12. Of the stated “mitigating factors” (paragraph 11 of Schedule 22), I reject as I did in 2003 any contention that Akoya was “provoked”. Any stress suffered by him was not by reason of any act by his victim. Further, the medical evidence did not suggest relevant mental disorder lowering his responsibility. In the representations submitted on Akoya's behalf, it argued that the intent was to cause grievous bodily harm rather than to kill: see paragraph 11(a) of Schedule 21. It is not possible to reach a conclusion on this submission: competing factors and the ferocity of the attack on the one hand and the chance choice of victim and the offender's distressed state. I am prepared, however, to assume that the intent may have been to cause grievous bodily harm rather than to kill.
13. In 2003, in making my report to the Home secretary, I took into account in mitigation the evidence of remorse on Akoya's part. That evidence is summarised in my statement of the facts already set out. Included in that mitigating factor, I took into account the late plea of guilty. Under the present law, that last factor is considered rather differently: see R v Last [2005] EWCA 106, to which I shall return.
14. Taking all these matters into account, if I were setting a minimum term in relation to this offence and if that offence had been committed after 18 December 2003, I would have been thinking of setting a minimum term of the order of 16 years.
15. That is not, however, the end of the matter. Paragraph 10 of Schedule 21 to the Act provides that a court may not make an order under Section 269(2) of the Act specifying a minimum term which in the court's opinion is greater than that which, under the practice followed by the Secretary of State before December 2002 would have been notified by him to the offender as being that which in his view should be served before release on licence. The best guide of the period that would have been notified under the Secretary of State's old practice is to be found (in respect of offences committed after 31 May 2002 and before 18 December 2003) in the Practice Statement handed down on 31 May 2002: see Amendment No. 8 to the Consolidated Criminal Practice Direction (Mandatory Life Sentences) paragraph IV. 49.22; Archbold's Criminal Pleading, Evidence & Practice 2006, paragraph 5-251b, page 660. It was that Practice Statement of May 2002 that applied at the time of sentence and at the time of any report in this case.
16. There can be no doubt, in my view, as I stated in my report, that the “starting point” at that time was 12 years. It would now be 15 years. Having regard to the slightly different statutory approaches to aggravation and mitigation, and having regard to the recent decisions concerning pleas of guilty (R v Last (supra)), I would have now set under the present law a minimum term of 16 years and 3 months less the period spent in custody on remand (6 months and 14 days).
17. I have re-considered the May 2002 Practice Statement, which I endeavoured to apply at the time of my report in November 2003. I see no reason to think that the minimum term specified under the Secretary of state's old practice would have been any greater than that which I recommended then. Therefore, by virtue of paragraph 10 of Schedule 21 of the 2003 Act I may not specify a minimum term greater than that recommended by my earlier report. Neither do I see any reason for thinking that the old practice would have called for a minimum term less than I recommended.
18. Accordingly, I specify, on this reference, a minimum term of 12 years.