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The official tariff for the life of a cab driver is 14 years.
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Re Cooper (application under para 3 of Sch 22 to the Criminal Justice Act 2003)
QUEEN'S BENCH DIVISION
[2005] EWHC 2735, [2005] All ER (D) 53 (Dec), (Approved judgement)
HEARING-DATES: 2 DECEMBER 2005
CATCHWORDS:
Sentence - Mandatory life sentence - Murder - Minimum term - Review - Whether offender's minimum term ought to be reduced - Criminal Justice Act 2003, Sch 22, para 3.
The offender, who was aged 20, pleaded guilty to the murder of a taxi driver and was sentenced to life imprisonment. He had planned to rob the driver to feed his drug habit and had with him a fish filleting knife he had recently bought. He stabbed the driver in the back and pursued him as he ran away kicking him in the face when he fell to the ground. The offender then took the money bag and left the driver for dead. He subsequently returned to the taxi and the driver, not recognising him, begged him for help. The offender stabbed him again to put him out of his misery. He then set fire to the taxi and the driver. Initially the offender boasted of what he had done to his associates but after initial denials to the police made a full detailed confession and expressed remorse. The offender had a number of previous convictions.
The trial judge found that the only mitigating features were his plea, his youth and his belated remorse. He recommended that the minimum period should be between 11 and 13 years. The Lord Chief Justice recommended a period of 14 years. The Home Secretary invited representations from the offender, who replied expressing his great remorse and heartache. The offender was notified of the Home Secretary's decision to set the tariff at 14 years. He asked for his tariff to be reviewed pursuant to para 3 of Sch 22 to the Criminal Justice Act 2003.
The court ruled:
The appropriate minimum period was 14 years.
Had the case fallen to be sentenced at the instant date it was inevitable that the starting point would have been 15 years as the offender was not yet 21 when he committed the offence. The attack on the taxi driver was wholly unprovoked and gratuitous. Further, he had returned to his injured victim, who was still conscious and begging him for help. He had expressed remorse and did not seek to excuse his behaviour and his plea of guilty would have attracted a discount broadly of no more than one sixth.
Deducting the period of remand in custody the offender would have to serve 13 years six months and 25 days from the date of sentence.
R v Last [2005] All ER (D) 265 (Jan) applied.
DECISION
INTRODUCTION:
This is the first approved version handed down by the court. An edited official transcript or report will follow.
PANEL: DAVID CLARKE J
JUDGMENTBY-1: MR JUSTICE DAVID CLARKE
JUDGMENT-1:
MR JUSTICE DAVID CLARKE:
1. On 27th July 1994, in the Crown Court at Cardiff before Mr Justice Alliott, the Applicant, Lee Cooper, pleaded Guilty to the murder of Henry James, a taxi-driver. He was sentenced to imprisonment for life. Mr Cooper was 21 years of age, having been born on 3rd May 1973. The offence was committed on 20th February 1994 when he was 20 years of age.
2. Pursuant to section 276 and Schedule 22 of the Criminal Justice Act 2003 ("the 2003 Act"), Mr Cooper has applied for the determination of the minimum term following which the early release provisions referred to in Schedule 22 are to apply to him. This is my determination of that minimum term.
3. For the purposes of my decision, I have considered the representations and material submitted to the court by Mr Cooper in October 1994. He made his application on 9th February 2004, and was given three months within which to make any fresh representations. He has not sought to do so.
4. I have also carefully considered the guidance set out in Practice Direction (Crime: Mandatory Life Sentences) (No 2), which is set out in Archbold, Criminal Pleading Evidence and Practice, 2005 paragraph 5-251.
5. Paragraph 11 of Schedule 22 of the 2003 Act provides that the application is to be decided without an oral hearing. In Regina v. Secretary of State for the Home Department ex parte Hammond [2004] EWHC 2753 (Admin), the Divisional Court reviewed this provision and concluded that it 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 Cooper 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. The family of the deceased have been invited to provide a statement but have understandably declined to do so, wishing "no further disturbance".
The Offence and the Notified Tariff
7. The facts of the offence appear from the report of the trial judge in these terms:
"The defendant planned to rob a taxi driver probably to feed his drug habit. He telephoned for a taxi and had with him a fish filleting knife he had recently bought. The defendant stabbed the taxi driver in the back and pursued him as he ran away, kicking him in the face when he fell to the ground. The defendant took the taxi driver's money bag (containing about #65) and left him for dead but he was not. The defendant subsequently returned to the taxi driver who not recognising the defendant begged him for help. The defendant stabbed him again "to put him out of his misery". The defendant subsequently set fire to the taxi and the taxi driver. Initially the defendant boasted of what he had done to his associates but after initial denials to the Police made a full detailed confession and expressed remorse."
8. Mr Cooper had a large number of previous convictions, mainly for dishonesty and motoring offences. He had also served a 6-month sentence for unlawful sexual intercourse. His last appearance in January 1994 had been for offences of criminal damage, offensive weapon, attempted theft, possession of a controlled drug and other offences, for which he received a probation order, having served some three months in custody on remand before that community sentence was passed.
9. There were two psychiatric reports before the sentencing judge. They revealed a disturbed childhood, a history of family violence by his father and a period in local authority care. His schooling had also been disturbed and disrupted by his own poor behaviour, unruliness and truanting. He had subsequently had a number of short periods of unskilled employment. He had been a heavy drinker since his mid-teens and was a regular abuser of a variety of controlled drugs. Neither psychiatrist made any diagnosis of mental illness or personality disorder.
10. The comments of the trial judge on the case generally and on the factors to be taken into account by the Home Secretary when considering release were as follows:
"Nothing in the defendant's background gives any indication why his offending should escalate so dramatically and there is no psychiatric instability. Nevertheless he killed in cold blood for paltry gain and there must be a risk in one so young at the time (20 years old) re-offending on release."
11. Alliott J expressed his view on the actual length of detention necessary to meet the requirements of retribution and general deterrence for the offence in these terms:
"The only mitigating factors are his plea, his youth, and his belated remorse. 11 - 13 years to reflect these factors."
12. The Lord Chief Justice, Lord Taylor commented:
"Despite his age, the sheer unprovoked brutality and persistence of this attack require in my view a minimum period in custody of 14 years"
13. The Home Office disclosed the recommendations both of Alliott J and Lord Taylor CJ to Mr Cooper and invited representations. By letter dated 14th October 1994, he personally wrote as follows:
"Dear Sir
I am writing this letter with regards to my undecided tariff. All I can say is that on the 20-02-94 I did murder in cold blood, Mr Henry Jones. It was unprovoked and uncalled for. I am truly sorry, not for getting caught but for the crime I commited. I feel great remorse for taking this man's life and for the grief and heartache I've caused this man's family. He was a good man who did not deserve to die, espeacialy the way he did. I don't realy have any excuse for the deed I carried out. And I realise I must be punished accordingly. By way of serving a life sentence. I understand that your decision is final, I would urge you to consider my youth, my plea and my remorse, as I can when and if I get released, I can find some-thing good to do with my life and have a chance to give some-thing back to the community. Thank you for giving me this opportunity to express my remorse, if I could turn the clock back sir, I would do so in a split second. This is my representation, thankyou for taking the time to read this letter.
Yours sincerely Lee Cooper"
14. On 12th December 1994 Mr Cooper was notified of the Home Secretary's decision to set the tariff, or minimum period to be served, at 14 years in accordance with the recommendation of the Lord Chief Justice.
15. Prior to his sentence, Mr Cooper spent 5 months and 3 days on remand in custody. His notified tariff therefore expires in February 2008. The question is whether, having regard to the terms of the 2003 Act, it is now appropriate to reduce the minimum period with the result that the date from which parole can be considered will fall earlier in time. It is thus appropriate to set out the statutory regime within which I am called upon make this judgment.
The Statutory Regime
16. By virtue of paragraph 3 of Schedule 22 a prisoner serving a mandatory life sentence who has been notified by the Secretary of State of a minimum period ("the tariff") which in his view should be served before the prisoner is released on licence and whose term has not expired, may apply to the High Court for a reduction in that period. Paragraph 3(1)(a) provides that the High Court may not set a minimum period which is greater than the notified tariff. The significance of this minimum period is that it is only thereafter that the Parole Board can direct the prisoner's release on licence.
17. Paragraph 4 of Schedule 22 provides:
"(1) In dealing with an application under paragraph 3, the High Court must have regard to -
(a) the seriousness of the offence, or of the combination of the offence and one or more offences associated with it,
(b) where the court is satisfied that, if the prisoner had been sentenced to a term of imprisonment, the length of his sentence would have been treated by section 67 of the Criminal Justice Act 1967 (c. 80) as being reduced by a particular period, the effect which that section would have had if he had been sentenced to a term of imprisonment, and
(c) the length of the notified minimum term or, where a notification falling within paragraph 2(b) has been given to the prisoner, to the fact that such a notification has been given.
(2) In considering under sub-paragraph (1) the seriousness of the offence, or of the combination of the offence and one or more offences associated with it, the High Court must have regard to -
(a) the general principles set out in Schedule 21, and
(b) 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."
18. The determining factor of "seriousness" reflects section 269(3)(a) of the Act and concerns the appropriate measure of punishment in a particular case taking into account "pure retribution, expiation, expression of the moral outrage of society, maintenance of public confidence in the administration of justice, deterrence, the interests of victims, rehabilitation and so on" (see per Lord Bingham of Cornhill in Regina v. Secretary of State for the Home Department ex parte Anderson [2002] UKHL 46 para 7, [2003] 1 AC 837 at page 874A.
19. To identify the general principles set out in Schedule 21, I turn to the starting points set out in paragraphs 4 to 6 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 paragraph 5 to appreciate that, had this case fallen to be sentenced today, it is inevitable that the starting point would have been 15 years. Mr Cooper was not yet 21 when he committed the offence, and the case would not have fallen within paragraph 5 of Schedule 21 so as to produce a 30-year starting-point.
22. In my view the facts of the case would have caused the sentencing judge to make an increase from the 15-year starting-point, before taking the plea of Guilty into account. Mr Cooper had armed himself beforehand. The attack on the taxi-driver was wholly unprovoked and gratuitous. A particularly chilling feature of this case is that when Mr Cooper returned to his injured victim, who was still conscious and begging him for help, he deliberately stabbed him to death "to put him out of his misery". In my view a judge today would have increased the minimum term to some 18 years before considering the discount for a plea of Guilty. If Mr Cooper had been significantly older, I believe that this uplift would have been greater.
23. I turn to the plea of Guilty and to Mr Cooper's letter dated 14th October 1994 in which he expressed his remorse and did not seek to excuse his behaviour. The plea of guilty would have attracted a discount broadly of no more one sixth or 5 years whichever be the less: see Regina v. Last [2005] EWCA Crim 106 referring to the view of the Sentencing Council Guideline expressed by Lord Woolf CJ (at paragraph 12) to be appropriately taken into account even in relation to offences committed prior to the Guideline coming into force. Thus, the minimum period under the 2003 Act would be at least 14 years, which was the period notified by the Home Secretary.
Conclusion
24. In the circumstances, I determine that the appropriate minimum period which Mr Cooper 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, namely 5 months 3 days. The minimum period determined as required by Schedule 22 of the 2003 Act is, therefore, 13 years 6 months 25 days from the date of sentence.
[2005] EWHC 2735, [2005] All ER (D) 53 (Dec), (Approved judgement)
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