Minimum terms
High Court setting of minimum terms for mandatory life sentences under the Criminal Justice Act 2003
Neutral Citation Number: [2006] EWHC 411
Case No: 2004/607/MTS
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 DAVID CLARKE
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SETTING OF A MINIMUM TERM FOR CHRISTOPHER AHMED PURSUANT TO PARAGRAPH 6, SCHEDULE 22
OF THE CRIMINAL JUSTICE ACT 2003
DECISION
MR JUSTICE DAVID CLARKE:
1. On 8 September 2003, in the Crown Court at Liverpool before me, the Defendant, Christopher Ahmed, pleaded guilty to murder and was sentenced to imprisonment for life. Mr Ahmed was 33 years of age having been born on 18 September 1969.
2. Pursuant to section 276 and Schedule 22 of the Criminal Justice Act 2003 (“the 2003 Act”), the Secretary of State has referred Mr Ahmed's case to the High Court for the making of an order fixing the minimum period to be served by him in custody before his release on licence. The significance of this minimum period is that it is only thereafter that the Parole Board can direct the prisoner's release on licence assuming first that the Secretary of State has referred his case to the Board and secondly that the Board is satisfied that it is no longer necessary for the protection of the public that he should be confined: see section 28(5)-(8) Crime (Sentences) Act 1997.
3. This is my determination of that minimum period.
4. For the purposes of my decision, I have considered the representations and material submitted to the court together with the guidance set out in Practice Direction (Crime: Mandatory Life Sentences) (No 2), unreported, 29th July 2004 set out in Archbold, Criminal Pleading Evidence and Practice, 2006 paragraph 5-251.
5. Paragraph 11 of Schedule 22 of the 2003 Act provides that the reference is to be decided without an oral hearing. In Regina v. Secretary of State for the Home Department ex parte Hammond [2006] 1 All E.R.219, the House of Lords upheld the decision of the Divisional Court that this provision did not exclude the possibility of an oral hearing in those cases in which the Judge considered such a hearing was required although it described the prospect as “rare”. Mr Ahmed has not applied for an oral hearing.
6. As I understand to be the usual practice in these cases, no representations have been submitted to me by the Secretary of State and neither have I received any representations from members of the family of the deceased.
7. At the time when I passed sentence in this case, the trial judge was not required to specify the minimum period to be served. He was however required to prepare a report in a specified form for submission to the Lord Chief Justice and from him to the Secretary of State. In that form the trial judge made his recommendation as to the minimum term, and the Lord Chief Justice added his own comment and recommendation. It was the practice of the Secretary of State to consider those recommendations before making his determination. The present case, however, did not reach the stage of any recommendation by the Lord Chief Justice or determination by the Secretary of State, with the result that it has been referred to the Court pursuant to Schedule 22 Paragraph 6.
The Offence
8. The facts of the offence appear from my report to the Secretary of State in these terms:
“The Deceased was Debra Maria James, a 35 year-old woman with whom the Defendant had formed a relationship some 10-14 days before her death. He was sleeping rough, she invited him to stay at her home and a sexual relationship quickly developed. (He was to tell the police in interview that he did not find her attractive, but had sex with her to keep a roof over his head.)
“In the early hours of 29 November 2002, at her home, he kicked her and beat her to death with a golf club which he had with him when he came in from drinking the previous evening. There were numerous blunt force injuries, predominantly to the head, and some blows struck with the shaft of the club after its head had broken off.
“He had been seen by neighbours banging at the door of the house that evening, unable to gain admittance. Another witness had seen him acting aggressively in an off-licence when buying lager, and saw him waving the golf club and shouting aggressively at passing traffic. Later in the night other neighbours heard banging and shouting within the house.
“After the killing the Defendant washed his bloodstained clothes in the deceased's washing machine, then telephoned a friend and told her “I've been staying with this girl and I've battered her, I think I've killed her…she was going on at me…she started to lash out so I kicked fuck out of her head and stamped all over her ….”
“He was arrested and admitted what he had done. He had been drunk at the time. He claimed that the argument arose because Ms James was being over-possessive.”
9. Mr Ahmed had a number of previous convictions for offences of violence and other offences. Most recently, in 2000 he had been sentenced to 2 ½ years imprisonment for offences of grievous bodily harm and witness intimidation arising from an incident of domestic violence involving a former girl friend.
10. There were psychiatric reports before the court which might have founded an argument of diminished responsibility. These reports were from Dr Jennie McCarthy dated 23 June 2003 for the Crown, and from Dr Ben Green dated 31 March 2003 and 21 May 2003 for the defence. The psychiatrists both considered the Defendant to have an emotionally unstable personality disorder, borderline type. Dr Green considered him also to suffer from post-traumatic stress disorder arising from his experiences of physical abuse in childhood. The Defendant had been prescribed antidepressants when in prison serving a 30-month sentence imposed in 2000 for a serious assault on a previous girlfriend. Thereafter he continued with prescribed antidepressants, but claimed not to take them when he was drinking; this led the defence to consider whether withdrawal symptoms might be relevant, but toxicology showed that there was a normal therapeutic dosage of Seroxat in his system at the time. In the event the Defendant pleaded Guilty to murder.
11. I expressed my view on the actual length of detention necessary to meet the requirements of retribution and general deterrence for the offence in these terms:
“14 years. The aggravation lies in the extreme violence used. The Defendant had two previous convictions for violence as well as drunk and disorderly and other alcohol-related offences. In 1991, for an offence of grievous bodily harm s20 and two of assault occasioning actual bodily harm s47, he received 9 months imprisonment. In 2000, for wounding with intent (the victim being his then partner) he received 15 months, with a further 15 months consecutive for intimidating a witness.
“In mitigation, he pleaded guilty and his personality disorder might be thought marginally to diminish his mental responsibility for what he did. But he is clearly a dangerous man and great care will no doubt be required when he is being considered for release.
12. The Home Office disclosed my recommendation to Mr Ahmed and invited representations. I understand that he has not made any representations but is content for the court to set the minimum term without any representations from him. No representations have been made by or on behalf of the victim's family.
13. Prior to his sentence, Mr Ahmed spent 9 months 5 days on remand in custody. Once I have set the minimum period to be served, that period of remand in custody will fall to be deducted so as to arrive at the precise period (from the date of sentence) to be specified.
14. I shall first set out the statutory regime within which I am called upon to make this judgment.
The Statutory Regime
15. The order which I am required to make is an order under subsection (2) or (4) of section 269 of the 2003 Act, which require me to consider the “seriousness” of the offence.
16. Paragraph 7 of Schedule 22 reads as follows:
“In considering under subsection (3) or (4) of section 269 the seriousness of an offence (or the combination of an offence and one or more offences associated with it) in a case referred to the High Court under paragraph 6, the High Court must have regard not only to the matters mentioned in subsection (5) of that section but also to any recommendation made to the Secretary of State by the trial judge or the Lord Chief Justice as to the minimum term to be served by the offender before release on licence.”
17. Paragraph 8 reads as follows:
“In dealing with a reference under paragraph 6, the High Court-
(a) may not make an order under subsection (2) of section 269 specifying a part of the sentence which in the opinion of the court is greater than that which, under the practice followed by the Secretary of State before December 2002, the Secretary of State would have been likely to notify as mentioned in paragraph 2(a), and
(b) may not make an order under subsection (4) of section 269 unless the court is of the opinion that, under the practice followed by the Secretary of State before December 2002, the Secretary of State would have been likely to give the prisoner a notification falling within paragraph 2(b).”
18. Section 269(5) of the 2003 Act reads as follows:
“In considering under subsection (3) or (4) the seriousness of an offence (or of the combination of an offence and one or more offences associated with it), the court must have regard to-
(a) the general principles set out in Schedule 21, and
(b) any guidelines relating to offences in general which are relevant to the case and are not incompatible with the provision of Schedule 21.”
19. To identify the general principles set out in Schedule 21, I turn to the starting points set out in paragraphs 4 to 6 of that Schedule in these terms:
“4. (1) If –
(a) the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is exceptionally high, and
(b) the offender was aged 21 or over when he committed the offence,
the appropriate starting point is a whole life order.
(2) Cases that would normally fall within sub-paragraph (1)(a) include –
(a) the murder of two or more persons, where each murder involves any of the following –
(i) substantial degree of premeditation or planning,
(ii) the abduction of the victim, or
(iii) sexual or sadistic conduct,
(b) the murder of a child if involving the abduction of the child or sexual or sadistic motivation,
(c) a murder done for the purpose of advancing a political, religious or ideological cause, or
(d) a murder by an offender previously convicted of murder.
5. (1) If –
(a) the case does not fall within paragraph 4(1) but the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is particularly high, and
(b) the offender was aged 18 or over when he committed the offence,
the appropriate starting point, in determining the minimum term, is 30 years.
(2) Cases that (if not falling within paragraph 4(1)) would normally fall within sub-paragraph (1)(a) include –
(a) the murder of a police officer or prison officer in the course of his duty,
(b) a murder involving the use of a firearm or explosive,
(c) a murder done for gain (such as a murder done in the course or furtherance of robbery or burglary, done for payment or done in the expectation of gain as a result of the death),
(d) a murder intended to obstruct or interfere with the course of justice,
(e) a murder involving sexual or sadistic conduct,
(f) the murder of two or more persons,
(g) a murder that is racially or religiously aggravated or aggravated by sexual orientation, or
(h) a murder falling within paragraph 4(2) committed by an offender who was aged under 21 when he committed the offence.
6. If the offender was aged 18 or over when he committed the offence and the case does not fall within paragraph 4(1) or 5(1), the appropriate starting point, in determining the minimum term, is 15 years.”
20. Having chosen a starting point, the court is enjoined to take into account any aggravating or mitigating factors to the extent not allowed for in the choice of starting point (paragraph 8) and then, in the light of a detailed consideration of these factors, to determine a minimum term of any length (whatever the starting point) or a whole life order (paragraph 9). The aggravating and mitigating features set out in paragraphs 10-11:
“10. Aggravating factors (additional to those mentioned in paragraph 4(2) and 5(2)) that may be relevant to the offence of murder include –
(a) a significant degree of planning or premeditation,
(b) the fact that the victim was particularly vulnerable because of age or disability,
(c) mental or physical suffering inflicted on the victim before death,
(d) the abuse of a position of trust,
(e) the use of duress or threats against another person to facilitate the commission of the offence,
(f) the fact that the victim was providing a public service or performing a public duty, and
(g) concealment, destruction or dismemberment of the body.
11. Mitigating factors that may be relevant to the offence of murder include –
(a) an intention to cause serious bodily harm rather than to kill,
(b) lack of premeditation,
(c) the fact that the offender suffered from any mental disorder or mental disability which (although not falling within section 2(1) of the Homicide Act 1957 (c. 11)), lowered his degree of culpability,
(d) the fact that the offender was provoked (for example, by prolonged stress) in a way not amounting to a defence of provocation,
(e) the fact that the offender acted to any extent in self-defence,
(f) a belief by the offender that the murder was an act of mercy, and
(g) the age of the offender”
The Appropriate Minimum Period
21. For the purposes of this case, it is sufficient to list the criteria in Schedule 21, to appreciate that, had this case fallen to be sentenced today, the starting point would have been 15 years.
22. I would then have had regard to the following aggravating and mitigating circumstances. Apart from the plea of Guilty, with which I deal separately, the only mitigating circumstances would have been lack of premeditation and Mr Ahmed's mental condition which might marginally have reduced his level of culpability. On the other hand, the aggravating circumstances were significant. In my report I drew attention to the serious assault on his previous girlfriend. The fatal assault on Debra James was extremely brutal and violent. I believe that under the present regime I would have taken a starting-point of 17 or 18 years before considering Mr Ahmed's plea of Guilty.
23. Under the Guidelines issued by the Sentencing Guidelines Council, his plea of guilty would attract a discount broadly of no more than one sixth, or five years whichever be the less: see Regina v. Last [2005] EWCA Crim 106 holding that this guideline should be taken into account even in relation to earlier offences. Mr Ahmed was entitled to maximum credit for his plea; it was proper for the decision to be delayed pending the completion of psychiatric evidence.
24. I consider that by this process I would have arrived at a specified period of 14 or 15 years. 14 years was the recommendation which I in fact made in the light of the guidelines of the Lord Chief Justice then in force.
25. I am required to have regard to that recommendation in fixing the specified period now, so as to ensure that the period does not exceed that which would have been set under the earlier regime. I consider that there is no reason why I should reduce the period from that which I recommended in my report prepared at the time of passing sentence.
Conclusion
26. In the circumstances, I determine that the appropriate minimum period which Mr Ahmed must serve before the early release provisions are to apply to him is 14 years. From that period is to be deducted the period of remand in custody, 9 months 5 days. The minimum period determined as required by Schedule 22 of the 2003 Act is, therefore, 13 years 2 months 25 days from the date on which the sentence of life imprisonment was imposed.