Belnavis, Re Setting of Minimum Terms In Relation To [2005] EWHC 1933 (QB)

Case No 2004/67/MTS; H.O. Ref: B44126

[2005] EWHC 1933 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Thursday, 6 th October 2005

Before

MR JUSTICE LEVESON

SETTING OF MINIMUM TERMS IN RELATION TO ROBERT BELNAVIS

PURSUANT TO PARAGRAPH 3, SCHEDULE 22 OF THE CRIMINAL JUSTICE ACT 2003

Judgment

Mr Justice Leveson :

[1]On 1st December 2000, in the Crown Court at St Albans (the case having been transferred from the Central Criminal Court), Gary George Gooden and Robert Belnavis were unanimously convicted before me of the murder, on 15th February 2000, of Victor Jumah. On 4th December, Mr Belnavis, who was 25 years of age and of prior good character, was sentenced to life imprisonment as, three days earlier, Mr Gooden had been. In accordance with the prevailing practice, I reported to the Secretary of State in relation to the tariff period that each should serve.

[2]In the light of Mr Belnavis’ representations, I ought to add some further words in relation to the trial process. Mr Belnavis appealed to the Court of Appeal Criminal Division against his conviction and, following refusal of leave by the single judge, renewed his application to the full court (Auld LJ, Gray and Crane JJ). On 6th February 2003, it was refused. In his representations, he continues to maintain his innocence, advancing arguments in relation to the evidence and the trial, protesting that he went to Mr Jumah’s house only to rent a room without any hostile intent. That account was, however, rejected by the jury and cannot influence the setting of the minimum period which must proceed on the basis that he did participate in this murder.

[3]Pursuant to section 276 and Schedule 3 of the Criminal Justice Act 2003 (“the 2003 Act”), the Secretary of State has referred the case of Mr Belnavis to the High Court 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 the minimum term in accordance with those provisions. I set out the matter in some detail bearing in mind the provisions of paragraph 12 of Schedule 22 of the Act which requires me to give my reasons in ordinary language.

[4]For the purposes of my decisions, I have considered the representations and material submitted to the court by Mr Belnavis. Further, I adjourned the date on which the minimum period was to be announced so that further representations could be submitted by his solicitors; I have also considered these submissions. I have also had regard to the guidance set out in Practice Direction (Crime: Mandatory Life Sentences) (No 2), unreported, 29th July 2004 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 Belnavis has not sought such a hearing in this case.

[6]As I understand to be the usual practice in these cases, no representations have been submitted to me by the Secretary of State. Neither has the family of the victim made any representations.

The Offence and the Recommended Tariff

[7]The facts of the offence appear from my report in these terms:

“On the totality of the evidence, the prime mover was a Jamaican, Rohan Perriel, who has now returned to Jamaica and escaped arrest. He was a dealer in crack cocaine. Shortly after Gooden’s arrival in the UK in August 1999, he was employed by Perriel as a “runner” delivering cocaine to customers and staying at Perriel’s home. There was no evidence that Belnavis had anything to do with drugs although he had been sent £550 by Perriel on 20 September 1999 and entered the United Kingdom on 19 January 2000 (travelling with Perriel’s wife). He was thereafter seen on more than one occasion with Perriel. On 7 December 1999, Gooden was delivering crack cocaine to Victor Jumah, 37 (whom it was not suggested was anything other than a casual user of the drug) when Gooden was trapped by armed black men and his car (with a small quantity of drugs and money) stolen: this incident was reported to the police although not, of course, the connection with drugs. The only sensible conclusion is that Perriel believed that Jumah was, in someway, responsible for this hijack and that it represented an attack upon his area of operation. On 15 February 2000, along with Gooden and Belnavis, he went to Jumah’s home. Gooden (who had become friendly with Jumah) may have persuaded Jumah to let them in for he was apparently security conscious and careful of whom he admitted to his home. When in his own lounge, Jumah was attacked with a moderately sized kitchen knife which was probably taken from his own kitchen. There were 38 stab and incised wounds to the head and neck, seven to the front of the trunk and six to the back. Both lungs were penetrated and the main branch of the common jugular vein was transected. The cause of death was multiple stab and incised wounds to the head, neck and chest. There was blood on numerous surfaces of the room and its contents and Jumah’s clothing was disturbed; one leg of his jogging trousers were off and the other by his ankles suggestive of a fierce struggle. Gooden left one bloody palm print on the door and Belnavis left two on the wall adjacent to the door. Both were near where the deceased was found. A cigarette stub with DNA from Belnavis was also found on the floor near the deceased. Four unidentified prints in blood were found which could have been made by one or more persons: Perriel’s fingerprints were not available. Gooden’s account to the police was, by his own admission, a tissue of lies. He explained them as consequent upon his fear of Perriel who had threatened him, and his girlfriend and her child and fear of the police implicating him. Belnavis lied about his identity (said to be due to the fact that he had overstayed his permission to enter the UK) and his knowledge of Gooden and Perriel. Belnavis also gave evidence that he had been accidentally shot in Jamaica (and showed the bullet wound to the jury) claiming that he was not fit to help restrain or attack another. Gooden had become Perriel’s lieutenant and Belnavis was also involved as a helper. Whereas I am prepared to accept that Perriel inflicted the injuries both Defendants were clearly willing participants albeit that Belnavis might have played a slightly reduced role. Support for that view may come from the presence of a fingerprint (not in blood) left by Gooden on the front door interior letter flap suggesting that Gooden checked outside the house to ensure the way was clear after the killing.”

[8]I summarised the legal issues which formed the basis for the trial in these terms:

“The Defendants both acknowledged their presence at the scene as evidenced by bloody palm prints. Each sought to explain the evidence on the basis of innocent involvement. Gooden said that he had stayed in the car and only entered the room as Perriel was stabbing Victor Jumah; Belnavis said that he was present in the house (but not the living room) when a single laceration to the forehead was inflicted on Jumah by Perriel and that both then left without Jumah suffering further injury.”

[9]My assessment of the period of years to be served in custody necessary to meet the requirements of retribution and general deterrence was that Mr Gooden should serve a minimum term of 17 years and Mr Belnavis a minimum term of 14 years. I expressed the factors of aggravation and mitigation in this way:

“Aggravating features include the drugs related and revenge motive together with the extent of the violence inflicted upon the deceased. On the other hand, given the probability that the knife was taken from the kitchen, there may have been no intention to kill as Jumah’s house was entered and each of these Defendants were probably secondary participants rather than the principal.”

[10]My recommendation was passed to the Lord Chief Justice, Lord Woolf (who considered the recommendations in every single mandatory life sentence for murder and thus was able to ensure a real measure of consistency throughout England and Wales). He commented:

“The links with the cocaine trade make the case more serious and I agree the tariff of 17 years for Gooden. The trial judge was in the best position to assess the responsibility of Belnavis but on the information before me, I would say at least 15 years in his case.”

[11]Although these views were then intended to be placed before the Secretary of State for a decision to be made, the change in the law and practice has meant that this further step has not been taken.

[12]Prior to his sentence, Mr Belnavis spent 4 months on remand in custody. Having regard to the terms of the 2003 Act, the issue that now falls to me to determine (as opposed to advise upon) the minimum period that must elapse before section 28(5) to (8) of the Crime (Sentences) Act 1997 are to apply. The significance of this minimum period is that it is only thereafter that the Parole Board can direct the prisoner’s release on licence assuming first that the Secretary of State has referred his case to the Board and secondly that the Board is satisfied that it is no longer necessary for the protection of the public that he should be confined. It is thus necessary to set out the statutory regime within which I am called upon make this judgment.

The Statutory Regime

[13]By virtue of paragraph 6 of Schedule 22 of the 2003 Act, the case of a prisoner serving a mandatory life sentence who has not been notified by the Secretary of State of the minimum period (“the tariff”) which in his view should be served before that prisoner may be released on licence must be referred by him to the High Court in order that an order can be made.

[14]It is appropriate to set out two further provisions of this Schedule 22 as follows: “7. In considering under subsection (3) or (4) of section 269 the seriousness of an offence (or the combination of an offence and one or more associated offences associated with it) in a case referred to the High Court under paragraph 6, the High Court must have regard not only to the matters mentioned in subsection (5) of that section but also to 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. 8. In dealing with a reference under paragraph 6, the High Court – (a) may not make an order under subsection (2) of section 269 specifying a part of the sentence which in the opinion of the court is greater than that which, under the practice followed by the Secretary of State before December 2002, the Secretary of State would have been likely to notify as mentioned in paragraph 2(a) …”. (a) may not make an order under subsection (2) of section 269 specifying a part of the sentence which in the opinion of the court is greater than that which, under the practice followed by the Secretary of State before December 2002, the Secretary of State would have been likely to notify as mentioned in paragraph 2(a) …”.

[15]Section 269(5) of the 2003 Act provides:

“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.” (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.”

[16]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.

[17]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.” (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, (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. (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, (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.

[18]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” (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. (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.

(g) the age of the offender”

The Appropriate Minimum Period

[19]None of the aggravating features specifically set out in paragraphs 4 and 5 of the Schedule apply in this case with the result that the appropriate starting point would be 15 years. I also recognise that the only possible relevant aggravating factor set out in paragraph 10 is the premeditation involved in three men going to and entering Victor Jumah’s house to confront him following the incident of 7th December. It is important, however, to underline that this provision is not intended to represent an exhaustive list of aggravating factors (as is clear from the word “include”) and the drugs related and revenge motive must (as the Lord Chief Justice recognised) constitute a very serious aggravating factor. It is absolutely essential that society’s abhorrence of those who use violence in connection with dealing with drugs whether to further their unlawful aims or in revenge for some reason real or imagined is demonstrated by a deterrent sentence and expressed in clear and unambiguous terms. In that regard, the fact that Mr Belnavis took no personal part in the drugs aspect of the case (see paragraph 7 (viii) of the submissions) takes the assessment of his position no further: he was convicted on the basis that he was a knowing part of a joint enterprise that had, in my judgment, a drugs related revenge motive for the attack. The lack of an intention to kill and the secondary role represent mitigating factors although both are outweighed by the aggravating factors to which I have referred. It is sufficient if I make it clear that, under the 2003 Act, I do not believe that it would be appropriate to recommend a minimum period of less than 17 years; it could be higher.

[20]In those cases in which a minimum period has not been set by the Secretary of State, I repeat that paragraph 7 requires the court in considering the seriousness of the offence also to have regard to the recommendations made by the trial judge and the Lord Chief Justice but, pursuant to paragraph 8, not to make an order specifying a part of the sentence “which in the opinion of the court is greater than that which, under the practice followed by the Secretary of State before December 2002, [he] would have been likely to notify”. That demands an assessment of the likely period that would have been determined under the old law and, in particular, in the letter sent to judges by Lord Bingham CJ on 10th February 1997 who took 14 years as the period actually to be served for the ‘average’, ‘normal’ or ‘unexceptional’ murder with (among other things) a revenge killing as likely to call for a sentence more severe than the norm, a mitigating factor being the absence of an intention to kill. It was applying this advice that I (along with the Lord Chief Justice in his comments) was endeavouring to do when recommending as I did.

[21]I turn to the representations made by Mr Belnavis and on his behalf. I have already referred to his submissions relating to his guilt but I acknowledge the use to which he has put his time in prison. I have also read with care not only the submissions made on his behalf by solicitors, but also the many letters from members of his family. I can understand, only too well, the difficulties that the family are experiencing and their wish to have Mr Belnavis restored to them; I also understand his anxiety about them. Unfortunately, he has been convicted of participation in a most serious offence and these concerns, however legitimate from their own perspective, cannot affect the assessment of the gravity of the offence.

[22]I have also had regard to the submissions made on his behalf relating to his role (with which I have already dealt), his efforts to assist the authorities to detain Rohan Perriel and his exemplary behaviour in prison. Neither of these, however, fall within the scope of exceptional progress outlined by Rose LJ in Regina v. Secretary of State for the Home Department ex parte Cole

[2003] EWHC Admin 1789

[23]I have reconsidered the exercise that I undertook when recommending that the minimum term should be 14 years, and which the Lord Chief Justice (for reasons the validity of which I entirely recognise) considered should be 15 years at least, in the context of considering what period the Secretary of State would have been likely to notify. Primarily, I have had to consider whether this might have been one of those cases in which the Secretary of State would have increased the recommended tariff as suggested by Lord Woolf; in the end, I have concluded, on the basis of my assessment that Mr Belnavis was a secondary participant and that the knife was probably picked up from the kitchen, that he would not have found it necessary to do so. On the other hand, it is only if the Secretary of State rejected Lord Woolf’s view of the minimum period that he would have reduced the period to be notified below the minimum of 15 years he suggested in favour of the period that I recommended. It is sufficient if I indicate that I do not believe that the Secretary of State would have done so: the breadth of knowledge of all murder cases and the attention to consistency across the country was, after all, the justification for the Lord Chief Justice’s involvement in the process.

[24]I have made clear that I cannot make an order longer than the assessment that I make of the period that the Secretary of State would have notified, notwithstanding that it is less than that which would have been imposed under the 2003 Act. On the basis that this assessment is 15 years, that is the order that I therefore make.

Conclusion

[25]In the circumstances, I take the view that the appropriate minimum period which Mr Belnavis must serve before the early release provisions are to apply to him is 15 years. From that period is to be deducted the period of remand in custody, namely 4 months. The minimum period determined as required by Schedule 22 of the 2003 Act is, therefore, 14 years and 8 months.