Minimum terms
High Court setting of minimum terms for mandatory life sentences under the Criminal Justice Act 2003
Neutral Citation Number: [2007] EWHC 1662 (QB)
Case No: 2004/1013/MTR
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 17/07/2007
Before :
THE HONOURABLE MR JUSTICE GRAY
- - - - - - - - - - - - - - - - - - - - -
Between :
REGINA Crown
- and -
ISA ABDUL AZIZ Defendant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
.............................
THE HONOURABLE MR JUSTICE GRAY
Mr Justice Gray :
1. The Applicant, Isa Abdul Aziz, is an “existing prisoner” within the meaning of Schedule 22 of the Criminal Justice Act, 2003. His case has been referred to the High Court under Schedule 22 for an order to be made under section 269 as to whether, having regard to the seriousness of his offence, the early release provisions should apply in his case and, if so, what part of his sentence should be specified in the order.
2. The birth name of Mr Aziz was Darren Martin Garner. He was born on 12th November 1975 to parents who came to the United Kingdom as immigrants from the West Indies. He grew up in Hackney. Some three years before the index offence Mr Aziz formed a relationship with a Swedish woman with whom he had two children. He has one previous conviction as a youth for robbery.
3. On 17th July 1997, following a trial at the Central Criminal Court, Mr Aziz was found guilty of murder by a majority verdict. He was sentenced to life imprisonment. There was a co-defendant, Rondell Pereira. The jury was unable to agree in his case and a retrial was ordered.
4. The brief facts of the offence were these: the victim Mr Robert Moss was murdered in his own flat in the small hours of 24th August 1996. The flat was ransacked and numerous items including a video cabinet and a computer were stolen. It appeared that the murder had been committed in the course of a robbery. The body of Mr Moss was found gagged and tied up. Fingerprint evidence led the police to Mr Aziz and his co-defendant, Mr Pereira.
5. According to the evidence, Mr Aziz and Mr Pereira had visited Mr Moss. The three men drank together. At about 2am Mr Moss was savagely attacked. He suffered extensive bruising, caused by blunt impacts. The extensive injuries caused to Mr Moss are described in detail in the statement of Mr Robert Chapman, a pathologist, which is included in the papers before me. Death resulted from asphyxia, produced by a combination of gagging with suffocation together with an episode of compression of the neck producing bruising to the neck structures. It was thought very likely that death had been contributed to by mechanical asphyxia, pressure being applied to the back whilst the deceased was face down during the process of restraint. When found the victim was face downwards with his feet tied together and his hands tied behind his back.
6. The case for Mr Aziz at trial was that he took no part in the attack on Mr Moss because he had left the flat for some 20 minutes in order to change his shirt. The explanation offered for the attack on Mr Moss was that he had made a homosexual advance towards Mr Pereira whilst Mr Aziz was absent. The jury clearly rejected Mr Aziz's claims.
7. The trial judge, His Honour Judge Michael Coombe QC, expressed the view that the actual length of detention necessary to meet the requirements of retribution and general deterrence for the offence was 16 years. This was based on the judge's view that the violence had been gratuitous and excessive and the fact that it appeared to be a killing for gain. The learned judge commented that Mr Aziz is a liar, who had given many different accounts to the police. However, his view was that there was nothing in his past to show that he is dangerous, although the attack on Mr Moss had been particularly savage the motive for the murder was presumably robbery.
8. The then Lord Chief Justice, Lord Bingham, expressed his agreement with the trial judge's opinion and himself recommended 15-16 years.
9. The then Home Secretary, to whom representations had been made by solicitors then acting for Mr Aziz and by his mother, set the tariff at 15 years, that being necessary to satisfy the requirements of retribution and deterrence for the offence.
10. No statements or representations have been obtained in connection with the present application from Mr Moss's relatives.
11. In setting the appropriate term I am required to take into account the seriousness of the offence; the effect of credit for any period of remand in custody; the general principles contained in Schedule 21 to the 2003 Act; any guidelines relating to offences in general which are relevant to the case (and not incompatible with the provisions of Schedule 21) and any recommendation as to minimum term made by the trial judge or the Lord Chief Justice. At the date of Mr Pereira's retrial the guideline indicated by Lord Bingham LCJ as being the appropriate starting point for average unacceptable offences of murder was 14 years.
12. I do, however, have a detailed submission from solicitors now instructed on behalf of Mr Aziz. I have found those submissions to be both clear and helpful. I have of course read them with care.
13. The submissions include an application that I should invoke the jurisdiction of the court to list an oral hearing for the setting of Mr Aziz's minimum term on the ground that a refusal to do so may contravene the provisions of Articles 6 and 14 of the European Convention on Human Rights. A similar application was made in Hammond v Secretary of State for the Home Department [2004] EWHC 2753 Admin. It was held in that case that an oral hearing would only be required in exceptional cases. I do not consider that there is anything about the present application which is sufficiently exceptional for me to direct that there should be an oral hearing. Moreover I am entirely satisfied that the written submissions to which I have already referred are sufficiently comprehensive and detailed for me to be confident that everything relevant has been placed before me in written form.
14. I turn to the aggravating factors which existed in this case. As I have indicated the trial judge described the attack upon Mr Moss as “particularly savage”; he referred also to “the gratuitous and excessive violence”. I reject any suggestion that Mr Aziz bears a lesser responsibility for the violence than his co-defendant: it was a clear case of joint enterprise. A further aggravating feature is that the murder was evidently motivated by gain: as the trial judge commented the motive for it was presumably robbery. I note that Mr Aziz did have two previous convictions but the offences were committed when he was very young and in my judgment nothing turns on them.
15. I turn next to the mitigating factors. I found it very difficult to assess whether it can be said on behalf of Mr Aziz that he intended to cause really serious bodily harm rather than to kill. It may well be that this was a case of a murder which “went wrong”. On the other hand the violence was considerable and prolonged.
16. A potentially mitigating factor is the progress which a convicted person has made whilst in custody. Authority does, however, suggest that the progress has to be “exceptional” to justify by itself a reduction in the term to be served. In the present case Mr Aziz is an enhanced status prisoner. I am told that he has made numerous applications for all recommended offending behaviour course work (although the inability of the establishment to provide course has proved an obstacle for progression). I have very little in the papers before me to go. I cannot regard the progress which has been made by Mr Aziz as being in any way exceptional.
17. Doing the best I can to weigh the aggravating factors against the mitigating factors and bearing in mind the starting point, I consider that, subject to one qualification, the early release provisions should apply to Mr Aziz when he has served 15 years. The qualification is that the term of 15 years should be reduced to take into account the period of 10 months 11 days that he spent in custody before being sentenced.