Neutral Citation Number: [2010] EWHC 1658 (QB)
Case No: 2004/219/MTR
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 15th July 2010

Before :

THE HON. MR. JUSTICE KING

- - - - - - - - - - - - - - - - - - - - -

Raymond Charles WINNETT

Application by Raymond Charles WINNETT  for the review of the  minimum term pursuant to Schedule 22 paragraph 3 of the Criminal Justice Act 2003

- - - - - - - - - - - - - - - - - - - - -
 
- - - - - - - - - - - - - - - - - - - - -
 
- - - - - - - - - - - - - - - - - - - - -
Judgment

The Hon. Mr. Justice King : 

Decision
1.	This applicant is 59 years of age, his date of birth being the 31st May 1951.  On the 5th August 1997 at the Crown Court at Exeter before HH Judge William Taylor he was convicted after trial of the murder of Carole Ann Morgan, his estranged girlfriend, committed on 18th January 1997.  The applicant was unrepresented and remained in a cell in the court building during the two day trial.  I have before me a number of written representations from the applicant seeking to explain his absence on the basis that he regarded himself as being under threat of being bullied by the Judge into accepting legal representation which he did not want when he intended to plead guilty. As will be seen, the applicant in interview after his arrest admitted stabbing Ms Morgan albeit his initial intent had been only to frighten her, and the representations made to me by the Crown Prosecution Service concede that the Applicant admitted the offence in interview.  However it is clear that the applicant never entered any plea at his trial, having at a previous hearing in April 1997 specifically reserved his plea.
2.	On the same day he was sentenced to life imprisonment. On the 6th of August 1997 the trial Judge made a recommendation that the applicant should serve a minimum term of 18 years before consideration for early release on licence. On the 24th September 1997 the Lord Chief Justice made a recommendation to the Home Secretary that the minimum term be 16 years.  On the 27th July 1998 the Home Secretary notified a minimum term of 16 years.
3.	Prior to sentence the applicant had been in custody on remand for 6 months 15 days. At the date of sentence he was 46 years of age.  He had previous convictions mainly for theft and allied offences but had in 1989 been sentenced to 4 years imprisonment for an offence of grievous bodily harm under section 20 of the Offences Against the Person Act 1861.
4.	This is an application under section 276 and paragraph 3 of schedule 22 of the Criminal Justice Act 2003 (‘the Act’) for a review of this minimum term. In terms it is an application for an order that the early release provisions are to apply to the applicant as soon as he has served the part specified in the order. Since this is a case falling under paragraph 2(a) of Schedule 22, that is to say one in which an existing prisoner has been notified by the Secretary of State of a minimum period which in the view of the Secretary of State should be served before the prisoner’s release on licence, I am obliged by the terms of paragraph 3(1) to make such an order. My task is to determine what the specified minimum term should be.  This is the term which the applicant must serve in full before becoming eligible for consideration by the Parole Board for early release on licence.
5.	I have not been asked to hold an oral hearing and I do not consider one to be necessary.
6.	In determining the minimum term I am obliged, under paragraph 4(1) of Schedule 22, to have regard to the seriousness of the offence, the length of any period in custody prior to sentence, and the length of the period notified by the Home Secretary. Under paragraph 4(2) of the schedule I must in considering the seriousness of the offence have regard to - 
i)	the general principles set out in schedule 21; 
ii)	the recommendations of the trial Judge and the Lord Chief Justice as to the minimum term.  
However, by virtue of paragraph 3(1)(b) of Schedule 22 I cannot set a minimum term which is greater than the term notified by the Home Secretary, in this case 16 years.
7.	The minimum term is not concerned with any assessment of the dangerousness of the applicant.  That will be a matter for the Parole Board to consider when determining whether or not to release the applicant on licence once the minimum term has been served.  Subject to the matters to which I am obliged to have regard as set out above, in fixing the minimum term the court is concerned with the proper assessment of the level of seriousness of the offence and the degree of culpability.  The minimum term which has to be served in full is meant to reflect these matters for the purposes of retribution and deterrence.
8.	As indicated I have to have regard to the general principles in Schedule 21 although this Schedule’s primary application is in relation to the fixing of minimum terms under section 269 of the Act applicable to life sentences fixed by law passed after 18th December 2003. Under those principles I have first to choose a starting point having regard to the factors identified in the schedule. The Schedule provides for three starting points:  a whole life order (paragraph 4);   30 years (paragraph 5); and 15 years (paragraph 6).  The court has then to decide whether to depart from that starting point having regard to any aggravating or mitigating factors to the extent that they have not already been allowed for in the choice of starting point. Paragraphs 10 and 11 respectively of the Schedule identify a non exhaustive list of potential aggravating and mitigating factors.
9.	For the purposes of this application the court has received handwritten submissions from the applicant and representations from the Crown Prosecution Service.
10.	In addition I have read a psychiatric report from Dr Eluned Dorkins dated 10th July 1997. It is clear that the applicant would not co-operate with Dr Dorkins, but from some limited contact and discussion with prison staff, Dr Dorkins was able to report that there was no evidence that the applicant was suffering from any serious mental illness which might include schizophrenia or psychotic depression, although there was evidence that the applicant had told his GP that he had taken an overdose of paracetemol and had been on antidepressant medication. There was no evidence that the applicant was under any disability in relation to his trial. Dr Dorkins refers to an earlier psychiatric report from Dr Donovan dated the 24th April which I have also read. That report suffered from the same difficulty of non–co-operation from the applicant in its preparation.  Dr Donovan came to like conclusions as Dr Dorkins.  He refers to the earlier examination of the GP who thought there may have been a “depression of mood” and who had arranged for the applicant to be referred to the Community Mental Health Team for further assessment which had not taken place by the time of the offence. Dr Donovan reported that “it is very difficult with the defendant’s refusal to talk to anybody about the incident to produce evidence to support the proposition that his depression was of such a degree that it had substantially impaired his responsibility and would allow a defence of diminished responsibility to be put before the court.”
11.	The court has also been sent a statement dated 11th February 2005 from a Probation Victim Liaison Officer, reporting the devastating impact of the murder upon the sons, parents and sister of Ms Morgan. It is unnecessary for present purposes for me to rehearse the detail in this judgment.  I have the contents fully in mind.
12.	I turn to the facts of the applicant’s offending which I take from the trial judge’s report to the Home Secretary as supplemented by the representations of the Crown Prosecution Service. On any view the applicant committed a brutal sustained and ferocious attack upon a 42 year old defenceless lady whom he stabbed some 110 times to her head, face and upper body using two or three knives.
13.	In his trial report the Judge set out the circumstances of the offence as follows:
“The defendant was estranged from the deceased and having an affair himself.  He would not accept the relationship was over and frequently barged his way into her flat, even as late as 3.00 am.   On 18th January 1997 he became jealous that she was seeing another man and visited her on two occasions.  When she told him that she did not propose to have a relationship with the other man, merely to have a drink with him, he stabbed her not less than 110 times to the head, face and upper body, using 2 or 3 knives – one of which broke in the process of the ferocious attack.

The defendant made full admissions in interview with the police, saying he was angry. He refused to have the assistance of a solicitor, since when he has refused to see any psychiatrist, probation officer or counsel assigned to him by the court, he remained in his cell at court and declined to participate in any way in the proceedings, despite every encouragement to do so.  The only witness he required to attend the trial was the deceased’s 17year old son, who found his mother’s body in quite dreadful circumstances.
                   
At the time of the killing, he was the subject of a two year Probation Order (imposed on 22nd November 1995)and a Combination Order of probation and community service (imposed on 13th January 1997-5 days before)”.
14.	In his general comments the Judge said this:
“The defendant has convictions for assault with intent to rob (1969) for which he was sentenced to borstal training and Grievous Bodily Harm for which he was sentenced to 4 years imprisonment.
                             
I regard this man as dangerous – when angry he inflicted awful injuries to a woman who posed no problems at all to him, save to his ego.   He has demonstrated a callous attitude to the killing since. There is no remorse or regret whatsoever; he even refused to consent to the body of the deceased being released for burial.”
15.	Under the heading “Issues before the Court ” the Judge reported:
“None, although provocation was left to the jury.” 
16.	The representations of the Crown Prosecution Service give some more detail of the admissions made by the applicant at interview following arrest:
“j)      at interview he admitted stabbing Carole with a knife from her kitchen.  He said that his initial intention was merely to frighten her. He has always maintained that he does not know why he did it.  He said he then washed his hands, changed his clothes, went home and showered.  He put the knife and bloody clothes in a bag and dumped them.
k)	At a further interview on 28th January 1997 he admitted that he may have used more than one knife. Three knives were missing and a broken knife handle was found with Carole’s body”.
17.	In making his recommendation to the Home Secretary of 16 years, the Lord Chief Justice,  Lord Bingham,  made the following comments:
“The questionable mental state of the defendant leads me to recommend a slightly shorter punitive term of 16 years. But it may well be judged unsafe to release him at the end of that term.”
18.	I turn to my conclusions on this application.
19.	On the application of the principles under Schedule 21, I consider the appropriate starting point for the minimum term in this case would be 15 years, being a case falling within paragraph 6 of the schedule. Its facts do not bring it within those cases identified in the schedule as normally falling within the paragraphs 4 or 5 where a higher starting point is indicated. However in my judgment there are significant aggravating factors which would justify a substantial increase in that term, namely the sustained and ferocious nature of the attack, the use of at least two knives and the mental and physical suffering which must undoubtedly have been inflicted upon the victim before death. I have no reason to doubt the description given in the representations of the Crown Prosecution Service which are in these terms:
                 
“The applicant inflicted approximately 110 stab wounds on Carole in what must have been a ferocious and prolonged attack. She sustained massive injuries, including losing her left eye and four stab wounds to her mouth which penetrated her tongue. There was also evidence of defence wounds to her arms and hands.”
20.	I accept there are some competing mitigating factors tending to lower culpability, in the lack of premeditation, and to a limited degree the mental state of the applicant at the time, but these in themselves would not lower the term to below the 16 years notified by the Home Secretary.  The applicant complains that he was not given any proper credit for his admitting the offence at interview and wishing to plead guilty. The fact is however the applicant did not enter any plea and he cannot be given credit for a plea he did not enter. Even allowing for his admissions in interview (set against his subsequent unco-operative behaviour) this still could not, in my judgment, given the strength of the competing aggravating factors, bring the term on application of the Schedule 21 principles to one below 16 years which is but one year above the 15 year starting point.  If I were not constrained by the terms of Schedule 22, I am bound to state that the figure I would have arrived at allowing for the aggravating and mitigating factors I have identified, would have been one above 16 years.
21.	However, as paragraph 3(1)(a) of schedule 22 provides that I shall not determine a minimum term greater than that notified by the Secretary of  State, the question for me for practical purposes is whether the determination of a minimum term in accordance with Schedule 21 arrives at a figure below the notified period of 16 years.  For the reasons I have given I do not consider it does. I see no justification for reducing the minimum term below that of 16 years which is the figure which in principle I shall adopt.
22.	I do however have to have regard to the effect of any direction that would have been given with regard to crediting time on remand in custody if the court had sentenced the applicant to a term of imprisonment.  I am satisfied that the applicant was held on remand for 6 months 15 days and that the minimum term should be reduced by that period.
23.	For these reasons the minimum term in this case is to be specified as 16 years less the period of 6 months 15 days. I order that the early release provisions under section 28(5) to (8) of the Crime (Sentences) Act 1997 are to apply to the applicant when he has served this specified minimum term.