Rogers, R v [2007] EWHC 369 (QB)

[2007] EWHC 369 (QB)Case No 2004/55/MTS
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 2 3 2007
Before
MR JUSTICE BURTON
Between
ReginaCrownMERRICK ROGERSDefendant
JudgmentMR JUSTICE BURTON :
[1]Merrick Rogers was unanimously convicted on 27 June 2000 at the Lewes Crown Court before the Honourable Mr Justice Gage and a jury of one count of murder. He was then 25, and is now 31. The circumstances of the murder, of a young and unmarried mother aged 23, were that the defendant and the deceased had lost touch with each other, after being at school together, and continuing an acquaintance thereafter, but met up after a gap of three years on 31 May 1999, by chance, in the centre of Canterbury at about 6pm, as the deceased was parting from her boyfriend for the evening. The deceased and the defendant spent the rest of the evening together, visiting various public houses in the centre of Canterbury and shortly after 10pm left the last of them together. By that time, both had had a good deal to drink. The deceased never reached her home. Her body was found in the mid afternoon of the following day in undergrowth on the playing fields which would have formed her route home. She had been struck about the head and strangled with the sleeves of her own jumper. Her trousers and knickers had been torn and removed: the t-shirt which she had been wearing had been pulled up, as had the bra underneath, and with enough force to separate two very strong hooks from the material of the bra and to tear off its straps at the front and back, thus exposing her breasts. There was bruising to her private parts, and it was clear that some sexual motive lay behind the killing. Her body bore many signs of bruising and abrasions, and she had bled, apparently from the face. The defendant denied the murder, asserting that he had not seen the deceased again after they parted at the last pub, and that he had gone on to another pub, although he could not be seen on CCTV cameras as either entering or leaving that pub and had no other witness. His DNA was found on the deceased’s right breast near her nipple, and on the left underarm panel of her bra. Neither at the trial nor by way of fresh evidence on appeal was the defendant able to put forward any explanation as to how his DNA was found on her exposed breast or on her bra. The jury rejected his defence of alibi.[2]In sentencing the defendant, the Learned

Judge said:

“Having spent the evening with her, you took her to an isolated park, attacked her and strangled her with the sleeves of her jumper. It seems obvious, from her condition when she was found, that the motive was a sexual one. Quite what it was that caused you, a man of hitherto good character, from a respectable family, to behave in this way, only you know. It was a horrific crime, a crime which ended a young life and which I have no doubt has caused immense grief and distress to [the deceased’s] son, her family and friends. It is difficult for me to assess how dangerous you are, but anyone capable of behaving as the jury has found you did on this night, must be regarded as very dangerous: and, in view of your age, likely to remain so for some time to come.”
[3]The trial judge recommended a tariff period of 14-15 years. In his report to the Home Secretary he gave the following as his reasoning in arriving at such period:
“Aggravating factors: This was a violent crime, involving some sexual motivation. The circumstances of the killing leave me in no doubt that the defendant intended to kill his victim. Since he pleaded not guilty and denied being the killer, it was not possible to detect any impression of remorse by him. Mitigating factors: The killing was a spur of the moment killing, and not premeditated. The defendant was aged almost 24 at the date of the killing and a young man of hitherto good character.”

Mitigating factors:

[4]The Lord Chief Justice agreed the trial judge’s assessment and recommended a tariff period of 14 years. Both by virtue of an extended appeal, ultimately unsuccessful before the Court of Appeal on 8 June 2006, and in any event by virtue of the change in legislation, which led to a number of cases not being referred to the Secretary of State, such recommendation has never been considered by the Home Secretary, and has remained accordingly the tariff until now, when I am required to consider, pursuant to paragraphs 3 and 6 of Schedule 22 of the Criminal Justice Act 2003, what minimum term should be imposed. I have no reason to believe that the recommendation of the trial judge and the Lord Chief Justice would have been increased by the Secretary of State (see paragraphs 26 to 45 of the judgment of the Court of Appeal Criminal Division by Lord Woolf CJ in Sullivan, Gibbs, Elener and Elener [2005] 1 CAR(S) 67 (308)). Thus by reference to paragraph 10(a) of Schedule 22 that is the ceiling to any order I can now make upon my own review.[5]In setting the minimum term, I take account of the general principles set out in Schedule 21 of the 2003 Act and the guidance contained in the Lord Chief Justice’s letter of 10 February 1997, as set out in paragraph IV.49.18-22 of the Practice Direction issued on 29 July 2004.[6]This case does not fall within paragraphs 4(1) or 5(1) of Schedule 21. I therefore take as the starting point a term of 15 years.[7]I have considered an impact statement from the father of the deceased both on his own behalf and on behalf of the deceased’s mother and teenage son. It describes in persuasive and restrained terms the devastating effect that the death of their daughter and mother has had upon the three of them. As for the defendant, although he has not requested an oral hearing, his solicitors have put in a helpful submission on his behalf, which I have considered. Annexed to that submission are a number of documents, both indicating the views of those who know him well and demonstrating the impressive steps he has taken in prison which, though short of any recognition of guilt, given his continued denial of the offence, show a constructive approach to his custody, coupled with recognition of the tragedy suffered by the family of the deceased.[8]I conclude that, although, as the trial judge himself records, there were some aggravating factors, they are outweighed by some mitigating factors, and in particular: i) The age of the defendant and his previous good character: though not an excuse, at least there is the explanation of the consumption of alcohol. ii) Although this was a violent attack, which obviously had a sexual purpose, there was, as the defendant’s solicitors point out, no DNA or other evidence to indicate that the defendant had attempted sexual intercourse: and it is plain that there was, as the Learned Judge found, no premeditation.[9]I conclude that the appropriate minimum term is 12½ years, less the period spent in custody on remand, a period of 12 months and 11 days, giving a minimum term of 11 years, 5 months and 19 days. I have noted the concern of the deceased’s parents in relation to the age of their grandson, vis a vis the possible release date, but I am satisfied that in the circumstances this concern can be allayed.[10]The minimum term is the minimum amount of time the defendant will spend in prison from the date of sentence before the Parole Board can order early release. If it remains necessary for the protection of the public, the defendant will continue to be detained after that date. When the defendant has served the minimum term, and if the Parole Board decides to direct his release, he will remain on licence for the rest of his life and may be recalled to prison at any time.