Khan, Re Setting the Applicant's Minimum Term

Neutral Citation Number: [2010] EWHC 1880 (QB) Ref Number: MTR/8/2009 IN THE HIGH COURT OF JUSTICE QUEENS BENCH DIVISION Queen Elizabeth II Law Courts Derby Square, Liverpool L2 1XA Date: 28th July 2010 Before: MR JUSTICE COULSON - - - - - - - - - - - - - NAEEM SHER-KHAN In The Matter of Setting the Applicant’s Minimum Term - - - - - - - - - - - - - JUDGMENT Page 1 A. Introduction 1. This is an application under Schedule 22 of the Criminal Justice Act 2003 for the setting of the minimum term in this case. I have considered, amongst other things, the representations made on behalf of the applicant, submitted by Bhatt Murphy, dated 9th March 2009, the CPS letter of 7th December 2009, and the other documents relating to the trial and the applicant’s conviction, including the trial judge’s report. 2. The applicant is an existing prisoner within the meaning of Schedule 22. On 15th December 1998 he was convicted of the murder of his stepfather, Mr Sohail Aftab. He was sentenced to life imprisonment. The trial judge recommended a minimum term of 16-18 years. The then Lord Chief Justice, Lord Bingham, recommended a 12-13 year tariff, apparently on the basis that “the cultural background…. mitigates the criminality of the defendant’s conduct to some extent.” On 24th November 2000, the Home Secretary notified the applicant that the minimum period which should be served before his release on licence was 13 years. 3. I have to decide whether I should order that the early release provisions under the 2003 Act should apply to the applicant after a shorter period than 13 years. It is not open to me to order that they should apply after a longer period. In considering the application, I must have regard to the seriousness of the offence together with the general principles as set out in Schedule 21 of the Act. I must also have regard to the various recommendations noted above. 4. I must also have regard to the effect that section 67 of the Criminal Justice Act 1967 would have had if the applicant had been sentenced to a fixed term of imprisonment, provided I am satisfied that, if he had been so sentenced, the length of his sentence would have been treated as reduced by a particular period under that section. In this way, the court takes account of any period that a person has spent in custody in connection with proceedings relating to the murder. I am satisfied that here I should have regard to a period spent in custody on remand of 254 days. B. The Applicant’s Offence 5. The applicant was born on 28th August 1971. In July 1995, he discovered that his step-father, Sohail Aktab, was having an affair with Page 2 his sister, Haleema. With the assistance of other members of his family he murdered Aftab on or about the 13th July 1995 and then fled to Pakistan. He was ultimately extradited from the USA nearly 3 years later, which explains why his trial was not until December 1998. 6. On any view this was a brutal and savage murder. Not only was it carefully planned and pre-meditated, but Aftab suffered 25 separate stab wounds including deep wounds to the brain and heart. There were 14 separate wounds to the face and head. They were all inflicted with a knife. C. The Criminal Justice Act 2003 7. The first issue for me to determine is the appropriate starting point under Schedule 21 of the 2003 Act. In the light of the recent change in the law which now equates murder with a knife and murder with a gun, the starting point could have been 30 years, in accordance with paragraph 5(2)(b). In the alternative, paragraph 6 would apply, which determines the appropriate starting point as 15 years. None of the mitigating factors set out in paragraph 11 of the Schedule are applicable to the present case. However, a number of the aggravating factors at paragraph 10 do apply. There was a significant degree of planning and premeditation, and the physical suffering inflicted on the victim before his death must have been considerable. In those circumstances, it seems to me that if the applicant was being sentenced under the 2003 Act the minimum term would not have been less than the 16-18 years recommended by the trial judge, and may well have been much higher. 8. In these circumstances, the only criticism that can be made of the 13 year minimum term that was notified to the applicant in this case was that it was much too lenient. Whilst I have already noted that the lower recommendation by the then Lord Chief Justice was made to reflect the applicant’s “cultural background”, it seems to me that, with respect, this overlooked the barbaric nature of the killing. On any view, the applicant was extremely fortunate to receive such a low minimum term. D. The Practice In 1998 9. The murder was committed in 1995 and the applicant was sentenced in 1998, when the practice adopted by the Home Secretary was stated in Lord Bingham’s letter to trial judges dated 10th February 1997. That practice fixed the starting point for the “average normal or unexceptional” murder as 14 years. However the letter went onto identify various Page 3 aggravating features that would justify a more severe sentence, including gratuitous violence. 10. Thus, to the extent that this current application requires a review of the correct approach laid down in Lord Bingham’s letter, it can again be seen that the 13 year minimum term was not only justified, but might again be regarded as lenient. No basis for a reduction in the term has been identified. E. Other Matters 11. The applicant’s representations are based on his allegedly good progress in prison. This can be a matter which might reduce a minimum term, if not by much. The case of R v Cairns and Roberts [2006] EWCA Crim 2915 makes plain that exceptional progress was what was required in order to reduce the minimum term and that the necessary test was high. The court said: “The standard should be very high; the progress must be exceptional, outstanding, and bearing in mind it provides the basis for a reduction in a period fixed for the purposes of punishment and deterrence, so it should be. Even where the necessary high standard is reached, the impact on the total tariff is likely to be very modest”. 12. On the basis of the material before me, I am not persuaded that the applicant’s progress meets that high test. Moreover, I am bound to note that nowhere in the applicant’s representations, and nowhere in any of the material provided by the prison authorities, have I seen any proper or unqualified expression of remorse on the applicant’s part. I note that the Parole Board have expressly recorded their doubt about the applicant’s motivation to address fully his offending behaviour. 13. In all those circumstances, it would be wrong in principle, and unjustified on the facts, to make any reduction in the 13 year minimum term because of alleged exceptional progress. 14. As noted above, the applicant spent 254 days in custody prior to sentence. I consider that this should be regarded as time served by him as part of the sentence. Thus the 254 days that he had already served by the time the minimum term was imposed on him should count towards the 13 year term. Subject to that, there is no justification for reducing the 13 year minimum term imposed on the applicant. Page 4 Page 5