England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		15th July 2010

The Hon. Mr. Justice King:

1. On the 10^th of November 2000 at the Crown Court at Leeds before Mr Justice Andrew Smith this Applicant, Robert Andrew Butterworth, was convicted after trial of the murder of Mark Sykes, an offence committed in the early hours of the morning of 18^th.December 1999. He was sentenced to life imprisonment. On the 15^th November 2000, the trial judge made a recommendation that the Applicant should serve a minimum term of 14 years before consideration for early release on licence. On the 1^st of December 2000, the Lord Chief Justice, Lord Woolf, made a recommendation to the Home Secretary that the minimum term should be 14 years. On the 24^th of September 2001 the Home Secretary notified a minimum term of 14 years.
2. 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.
3. I have not been asked to hold an oral hearing and I do not consider one to be necessary. I have received written submissions on behalf of the Applicant and also read the short but nonetheless moving victim impact statement from the deceased's mother. She understandably says that she cannot describe in words how the crime has affected her or her granddaughter's life.
4. 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 (a) the general principles set out in schedule 21 and (b) the recommendations of the trial Judge and the Lord Chief Justice as to the minimum term.
5. 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 14 years.
6. The minimum term is not however 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. Such release is by no means automatic. Subject to the matters to which I am obliged to have regard, what I am concerned with in fixing the minimum term, is 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.
7. 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 18^th 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), 30years (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.
8. I turn to the circumstances of the murder which I take from the trial Judge's report to the Home Secretary. On any view this was a vicious sustained and gratuitous assault by a strong young man, the Applicant, upon a complete stranger, Mr Sykes, on the pavement of a busy street in Leeds City Centre, just before 1.30 in the morning. At the time the Applicant was 28 years of age .Mr Sykes was a 36 year old divorced gentleman living in Leeds with his mother and 9 year old daughter. He had spent the evening having a seasonal drink with friends, leaving a bar shortly after 1.00am .The attack involved Mr Sykes being forcibly thrown or pushed down a set of concrete steps, and then being repeatedly kicked and stamped upon as he lay on the ground. He offered no resistance. His attacker having walked away a few paces, then returned, picked Mr Sykes up by the shoulders and slammed his head to the pavement, before himself running off. Mr Sykes was certified dead at Leeds General Infirmary at 2.15 am. The injuries described by the pathologist included bruising of the neck associated with the fracture of the voice box and hiatus bone, indicative of stamping on the neck, and fracture of the skull, indicative of the head hitting the ground, and bruising on the forehead, indicative of kicking. The official cause of death was given as head and neck injuries although the unchallenged evidence of the pathologist was that the immediate cause of death was cardiac arrest associated with vago-vascular inhibition following the fracturing of the voice-box and the hiatus bone caused by the stamp upon the neck when Mr Sykes was lying on his back.
9. It is clear that at the time the Applicant was fuelled by having taken a great deal of drink together with ecstasy. He had spent the evening before the attack heavily drinking with others in a night club, including a Mr Jepson, a paver for whom he worked, and had shared an ecstasy tablet. At some stage after he and Mr Jepson left the nightclub, the Applicant left Mr Jepson's company, and when he rejoined him, according to Mr Jepson, he told Mr Jepson that he had killed someone. The next afternoon the killing was publicised on local television. Upon seeing her husband's reaction to the news, Mrs Jepson went to see the Applicant and told him that unless he contacted the police, she would do so. The Applicant telephoned the police just after 6 pm, saying he was "involved" in the killing. At some stage before doing so he burned the shirt and jeans which he had been wearing the previous evening.
10. I observe that at his trial the Applicant claimed to have alcohol induced amnesia about much of the evening. In evidence he said he did not know whether he had killed Mr Sykes because of his amnesia. As the judge in the trial report puts it: "He did not deny the charge but pleaded not guilty to test the evidence against him." The only real issue for the jury was the identity of the killer although the Judge did leave a verdict of manslaughter to the jury, should they find the defendant was so affected by drink and drugs that he did not have the requisite intention for murder. By their verdict the jury found the Applicant had at the very least the intention to cause really serious bodily harm.
11. In his comments on the tariff, indicating the factors which aggravated and mitigated the offence, the trial Judge said this:

"There is no reason to suppose that Mr Sykes and Mr Butterworth had previously met and nothing to indicate that Mr Sykes had done anything to provoke the violence (although some witnesses suggested the two were walking together before Mr Sykes fell down the steps). The picture is of Mr Butterworth becoming increasingly aggressive through drink during the evening, and eventually attacking Mr Sykes. It seems to have been a vicious, sustained and gratuitous assault by a strong young man upon a stranger.

It is of course no excuse that he was under the influence of a very great deal of alcohol, taken together with ecstasy, but undoubtedly he would not otherwise have acted as he did. Despite the previous incidents that evening, there is nothing to suggest that a violent attack of this kind was planned or premeditated.

Mr Butterworth has no previous convictions that I consider to be of relevance and none which had attracted custody; (he said in evidence that his one previous conviction for assault, which is over nine years old, resulted from him reacting to an insult to his mother, and there is no reason to doubt this).

Mr Butterworth showed no obvious remorse during the trial and said that had Mrs Jepson not told him she would call the police, he would probably not have contacted them himself.

The only observation made in mitigation on Mr Butterworth's behalf was that he never denied killing Mr Sykes. He pleaded not guilty on the basis that he could not remember doing so. I have reached the firm conclusion that he did know what he had done. I do not overlook Mr Jepson's claim of comparable amnesia of the evening, but Mr Butterworth's various accounts of what he could and could not remember were inconsistent, and he was unable to explain why the next day he admitted to Mr Sykes to Mrs Jepson and his girl-friend before telling the police he was involved. This in my view much undermines the mitigation that he had not denied the killing.

In view of the violence involved in the attack, I recommend 14 years custody."

12. In light of the judge's observations based upon his presiding over the Applicant's trial and listening to the evidence, I reject as lacking any credibility what is now said on the Applicant's behalf in the written representations, namely that the Applicant has since been able to recall a number of details which assist in "giving a fuller picture", that he now recalls a fight between himself and the victim, that he now recalls feeling under attack from the victim, and that this caused his loss of control as evidenced by Mr Sykes's injuries, and that there "must" have been a scuffle and an attack from the victim on the Applicant for him to lose control to the extent that he did, "drugs and alcohol playing their part too", having regard to his lack of any record for violence. Despite what is now said on the Applicant's behalf, I see no reason, when assessing the seriousness of this offence of murder, to depart from the trial Judge's assessment that there is nothing to indicate that Mr Sykes had done anything to provoke the violence. In my judgment, as already indicated, this offending is properly to be characterised as a vicious sustained and gratuitous assault fuelled by alcohol and drugs. I do however accept, as the Judge did, that although no excuse for what he did, the Applicant would not have acted as he did but for the influence of those substances and that there is nothing to suggest that a violent attack of this kind was planned or premeditated. I also take note and will accept that although no remorse was apparently shown by the Applicant at his trial, his representations say that he has since demonstrated "full remorse and his feeling of guilt is such that he has needed counselling over what he did that night".
13. I turn to my conclusions on this application.
14. On the application of the principles under Schedule 21, 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 those paragraphs indicating a higher starting point. However there is a significant aggravating factor in the level of violence used and the sustained and vicious nature of it, involving repeated kicks and stamps to the neck and head, and the return to inflict further assault. It is not necessary for me to repeat the detail already set out above. Although there is some mitigation to be found in a lack of premeditation or planning and that there was here in all likelihood an intention to cause really serious harm rather than to kill, and of course I accept the previous character, I do not consider that this mitigation is so strong that it outweighs the competing aggravating factor to the extent that it could possibly reduce that starting point to below 14 years. On Schedule 21 principles alone, a figure of at least 15 years could easily be justified. The alleged mitigation based upon the fact that the appellant did not deny the killing is undermined for the reasons given by the Judge. As I have indicated I reject any notion that the Applicant was in someway provoked by his victim.
15. 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 which in this case was 14 years , 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 14 years, which of course was also the recommendation of both the trial judge and the Lord Chief Justice . For the reasons I have given I do not consider it does. I see no justification for reducing the minimum term below that of 14 years which is the figure which in principle I shall adopt.
16. I should add that I have had regard to the Applicant's good behaviour and progress whilst in custody referred to in his representations and the accompanying documentation, in particular the completion by the applicant of offending behaviour courses, his becoming drug free, and his charity work but none of this is of such exceptionality which enables me to alter what is otherwise the appropriate minimum term.
17. 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 10 months 20 days and that the minimum term should be reduced by that period.
18. For these reasons the minimum term in this case is to be specified as 14 years less the period of 10 months 20 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 term.