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
		8 June 2016

Introduction

1. I am required to conduct a periodic review of tariff for a detainee at Her Majesty's Pleasure in accordance with the House of Lords judgment in the case of R (Smith) v Secretary of State for the Home Department 2005 UKHL 51.

The Legal Framework

2. In the case of Smith, the House of Lords held that the tariff for a person sentenced to be detained during Her Majesty's Pleasure may be reduced, on reconsideration, if there is clear evidence of exceptional and unforeseen progress. There are three possible grounds on which to reduce the tariff:

i) The prisoner has made exceptional and unforeseen progress during the sentence.

ii) The prisoner's welfare may be seriously prejudiced by his, or her, continued imprisonment and the public interest in the offender's welfare outweighs the public interest in a further period of imprisonment lasting until the expiry of the current tariff.

iii) There is a new matter which calls into question the basis of the original decision to set the tariff at a particular level

3. The current "Criteria for reduction of Tariff in respect of HMP detainees", provides guidance upon the matters which may be considered of assistance when considering whether an offender has made exceptional progress in prison, namely,

1. An exemplary work and disciplinary record in prison;

2. Genuine remorse and accepted an appropriate level of responsibility for the part played in the offence;

3. The ability to build and maintain successful relationships with fellow prisoners and prison staff; and

4. Successful engagement in work (including offending behaviour/offence-related courses) with a resulting reduction in areas of risk.

4. Moreover, the guidance makes clear that all of these matters should ideally have been sustained over a lengthy period, and that to reach the threshold of exceptional progress there would also need to be some extra element to show that the offender had assumed responsibility and shown himself to be trustworthy, which may well be demonstrated by the offender having done good works for the benefit of others over a sustained period of time.
5. My role is to review the current tariff and, if appropriate, to recommend a reduction based on one or more of those criteria. The Lord Chancellor and Secretary of State for Justice have agreed to honour any recommendation made.
6. In reviewing the current tariff in the present case it is to be appreciated that I am limited to a consideration of the progress and development of the offender whilst he has been in custody. Nothing I say reduces the seriousness of this offence of Murder, or diminish the consequences of it for the victim's family and friends. Without doubt this was a dreadful crime, and the consequences of it terrible. However, in relation to the first of the criteria, what I have to do is to consider whether, during his period in custody, the offender has demonstrated exceptional and unforeseen progress, resulting in a significant alteration in his maturity and outlook since the commission of the offence and consequently whether, compared with the date of sentence, there has been a significant reduction in the level of risk posed to public safety such as to warrant a reduction in tariff.
7. Any reduction of course would not mean that the offender will necessarily be released any sooner that he would otherwise have been. Whether or not there is a reduction in tariff, the offender will not be released unless and until the Parole Board assesses him to be safe for release. However, a reduction in the tariff would mean that the Parole Board could consider whether he is safe for release earlier than it would otherwise be able to do so.

Background of the Offence

8. On 29^th February 2008 Stephen Bonelli, having been convicted by a jury of the offence of Murder, was sentenced to be detained at Her Majesty's Pleasure, with a minimum term of 18 years, less 186 days, subsequently reduced on appeal, to 15 years, less 186 days.
9. The victim of the Murder was Brent Martin, who was 23 years of age. He was described as a gentle and caring person, and was vulnerable due to having suffered from long term mental health and learning problems.
10. On the evening of 23^rd August 2007 Stephen Bonelli, who was then 17 years of age, was out drinking with his co-accused, William Hughes and Marcus Miller, who were then aged 21 and 16 years of age respectively. At some point this group was joined by the deceased, to whom they eventually became hostile. At some point Hughes punched the deceased to the ground, and kicked him. However, the deceased was able to get up and ran away. Hughes instructed Stephen Bonelli to run after the deceased, and when he did so, the deceased was again attacked and kicked by the accused. This sequence of events was repeated on at least one further occasion, culminating in the deceased falling to the ground next to a parked motor car, whereupon Hughes kicked his head against the side of the vehicle. The deceased's trousers and underpants were pulled down, and he was left lying in the road, whilst the accused made good their escape.
11. Brent Martin later died from the effects of his head injuries, and on subsequent post mortem examination, no fewer than 22 recent injuries were found to have been inflicted to his head and neck.
12. In sentencing the accused, HHJ Milford QC determined that Hughes was the ringleader, whilst Stephen Bonelli and Miller bore equal culpability with each other. Stephen Bonelli had two previous convictions for threatening behaviour for which he had been fined, and was considered by the author of the pre-sentence report to pose a high risk of causing direct harm to the public.
13. It is apparent from both the statement of Danielle Flynn dated 16^th November 2015 and the undated statement of Brenda Martin that this offence has had a profound and ongoing effect upon the victim's family.

Custodial History

14. In October 2007, whilst on remand awaiting his trial at HMPYO Lancaster Farms, Stephen Bonelli had an adjudication for assault upon another offender.
15. On 10^th June 2008 Stephen Bonelli was located in Moorland YOI. Initially his sentence plan included the completion of work in relation to victim awareness, basic literacy, numeracy and IT, together with being assessed for ETS and CALM courses, and to remain adjudication free. He received positive results generally, and his behaviour was not a cause for concern; albeit at an early stage of his sentence there were two adverse comments in his file relating to aggression towards other offenders.
16. Subsequently in April 2010, it was noted that he had completed the ETS and CALM courses, in respect of which he had obtained very positive reports in relation to his contribution and understanding. It was noted that in relation to the former he was always the first to arrive. Moreover, he evidenced that he was able to attain the skills he had learnt on these courses and apply them on a day to day basis. He had completed courses in relation to drugs, alcohol and victim awareness. He expressed remorse, which was assessed by his offender supervisor to be genuine, and gained an understanding of how his behaviour had impacted on the victim's family. In addition he had completed an anti-bullying and harassment course, and achieved level grade 1. Overall it was considered that he demonstrated a high level of motivation and willingness to learn.
17. His behaviour on the wing was described as "excellent", and was considered to be a polite, mature young man who "does what is expected of him." He was also described as being an individual who, when faced with conflict by other offenders, can behave calmly and rationally. He had performed the duties of scorer for the prison volleyball team for a number of months, and was described as displaying neutrality to both his own prison and other's teams, offering them both support and encouragement to the extent that the PEI at HMP Moorland had received endorsements, from the managers of opposing teams, in relation to his positive attitude and professionalism.
18. As a result of his interest in sport, Stephen Bonelli had commenced a community and sports leader award course, which would allow him, on his eventual release from custody, to supervise group sports activities for participants of any age within the community, and his progress to date on this course was described in positive terms. His sentence plan was revised to include work upon the improvement of his ICT skills, continue to improve his basic skills, continue prison employment, and to learn new skills to improve his employment prospects.
19. It is to be noted that although there was no formal adjudication, Stephen Bonelli's enhanced IEP status, which he had held for most of his sentence, was downgraded to basic, as a result of an assault upon another offender. However, his enhanced status had been restored by February 2012, since which date it has been maintained by him. During this period, there have been no further disciplinary concerns. Moreover there is no evidence that he has ever provided any positive drugs test results.
20. In November 2010 Stephen Bonelli was transferred to HMP Stoke Heath, during which period he gained two adjudications for having unauthorised items in his possession in September 2011. He was subsequently transferred to HMP Garth, and then to HMP Lindholme in February 2014, where he remains to date.
21. During his time at HMP Garth he was employed as a gym orderly, and in April 2013 gained excellent reports, it being noted that he was always polite in any dealings with staff and other offenders. It was also noted that he was becoming more selective with whom he mixed.
22. His most recent OASys assessment, dated 14^th October 2015, places him a medium risk of serious harm to the public in the community, and other offenders within the prison.
23. His most recent tariff assessment reports are dated the 13^th and 27^th October 2015, and neither of them contain any matter which calls into question the basis of the original decision to set the tariff, nor do they suggest that his welfare may be seriously prejudiced by his continued imprisonment; albeit the first of these reports notes that there is no further offence focussed work for him to undertake, and there may come a point when he has exhausted his opportunities for personal development, as a result of the lack of availability of further courses for him to undertake.
24. However, in relation to his progress during his sentence, the reports not only set out the numerous courses which Stephen Bonelli has completed, both in relation to his personal development and constructive skills, but they also set out the further roles which he has completed, including being a mentor at the gym where he supports injured and disabled offenders with remedial gym work, a supporter of other offenders who are undertaking the Resolve programme, and he is currently on the waiting list to be trained as a "listener." It is noted that in contrast to the position at the start of his sentence, he now accepts personal responsibility for the death of Brent Martin. Moreover, in contrast to his poor educational record prior to the offence, as the author of the second of these reports observes, "There is evidence of good motivation and an increased level of maturity when taking into account that Mr Bonallie (sic) has complied with all that has been expected of him under a life sentence and more."
25. Overall the authors are not aware of any security problems that have arisen with Stephen Bonelli, who is regarded as being polite and respectful in his dealings with staff, and who demonstrates a mature and positive attitude.
26. As to Stephen Bonelli's own assessment of his time in custody, I have read his written statement, in which he sets out his own aspirations for the future to include both sports and construction work, and the attempts which he has made to participate in courses run by the Open University. Most importantly, he appears to show very significant insight into his responsibility for the victim's death, and the factors which were involved. As he puts it himself, "The night of the attack was knowones (sic) fault but my own. My actions are unforgivable. I was a young, angry, immature teenager that thought it was clever to drink and take drugs with peers but now I know it was stupid. Not that I didn't know then because I did, I just never thought it would lead to a man's death………..I do have genuine remorse and will never truly understand what my victim's family and loved ones are still going through….."

Conclusion

27. I have considered with care the relevant criteria in this case. True it is that prior to his trial, Stephen Bonelli had an adjudication for an assault. Moreover, in 2010 although the assault may not have been of sufficient seriousness to warrant an adjudication, his enhanced status was downgraded for a period of time. However, since that time, now over 5 years ago, there has been no suggestion of any further violence or aggression on the part of Stephen Bonelli within custody, and his adjudications in 2011 for having unauthorised items were of a relatively minor nature. In my experience, as compared with very many others, this comprises a very good disciplinary record. Moreover, Stephen Bonelli's work record, as attested by the evidence in the various reports before me, can only be described as exemplary.
28. Undoubtedly, at the time of the offence, Stephen Bonelli showed no remorse for his offending; a matter which I am sure only served to exacerbate the anguish caused to the victim's family. However, in contrast to many, this situation has not been maintained. There is evidence that Stephen Bonelli has now fully accepted his responsibility for the part which he played in this offence, and is genuinely remorseful.
29. I consider that this reflects an increasing level of maturity on the part of Stephen Bonelli, gained from his successful engagement with the offence based cognitive behavioural programmes which he has completed whilst he has been in custody. Moreover his level of risk has correspondingly reduced.
30. Stephen Bonelli has built and maintained successful relationships both with fellow offenders and with the prison staff; the former being attested to by the mature way in which he has handled his responsibilities as scorer for the prison volleyball team; the latter, as described in the most recent Tariff Assessment Reports.
31. Moreover, all of these positive aspects of Stephen Bonelli's maturing character have been sustained over a lengthy period of time, and now in more than one prison. I appreciate that none of these criteria will be conclusive in establishing exceptional progress, nor will they collectively. However, I am satisfied that, by reason of the further roles which he has undertaken, including his gym mentoring of injured and disabled offenders, the support which he gives to those undertaking the Resolve course, and when trained, his services as a listener, amply fulfil the extra element of his assumption of responsibility, whereby he has shown himself to be trustworthy for a sufficient period of time.
32. In the circumstances I am satisfied that his progress has not only been exceptional but also, given the low base from which he started, unforeseen. Therefore I consider that although his eventual release, if at all, will be entirely a matter for the Parole Board, these factors should be recognised by a reduction in his tariff of one year, to 14 years less 186 days.