Kular, Re Review of Minimum Term [2010] EWHC 1657 (QB)

[2010] EWHC 1657 (QB)Case No 2006/36/MTR
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15 th July 2010
Before
THE HON. MR.JUSTICE KING
Mohan Singh Kular
Application by Mohan Singh Kular for the review of the minimum term pursuant to Schedule 22 paragraph 3 of the Criminal Justice Act 2003
Judgment

The Hon. Mr. Justice King :

[1]On the 3rd of November 1997 at the Crown Court at Bristol before Mr Justice Toulson the Applicant Mohan Singh Kular was convicted of the murder of his wife Ninderjit Kaur Kular committed in January 1987. He was sentenced to imprisonment for life. The trial judge made a recommendation on the 16th December 1997 that he should serve a minimum term of 22 years before consideration for early release on licence. On the 16th December 1997 the Lord Chief Justice made a recommendation to the Home Secretary that the minimum term be 18 years. On the 8th of February 2002 the Home Secretary gave notice to the applicant of a minimum term of 18 years.[2]Prior to sentence the applicant had been in custody on remand for 23 months 23 days.[3]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. I have not been asked to hold an oral hearing and I do not consider one to be necessary.[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;(b) the recommendations of the trial Judge and the Lord Chief Justice as to the minimum term. 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 18 years.[5]The minimum term is not concerned with any assessment of the dangerousness of the applicant. That will be a matter for the Parole Board to consider when determining whether to release the applicant on licence once the minimum term has been served. Subject to the matters to which I am obliged to have regard as set out above, in fixing the minimum term the court is concerned with 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 punishment and deterrence.[6]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 18th 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.[7]In this application the court has received submissions on behalf of the applicant but no representations from the Crown other than a copy of the Crown case summary. The Applicant is now some 58 years of age, his date of birth being the 5th of September 1951. At the time of the offence he was 35 years of age and of previous good character. I have read a psychiatric report upon him from Dr Stephen Armott, dated 30 April 1996. No mental or other health issues arise in this case.[8]I turn to the facts of the applicant’s offending which I take from the Judge’s trial report to the Home Secretary. On any view this was a cold blooded murder in which the applicant persuaded his wife to accompany him to the Punjab to visit their respective families and there strangled her to death. He then threw her body in front of a moving vehicle to make her death look like an accident. He plainly committed this murder for gain, having not long before the murder increased the total life cover on their joint lives. There was a history of domestic violence committed by the Applicant upon his wife. He has shown no remorse, maintaining still his innocence.[9]In his trial report

the judge set out the circumstances in which the offence was committed as follows :

“The victim was the defendant’s wife, Ninderjit Kaur Kular. They were marred on 2 March 1983. Soon afterwards the defendant took out insurance n their lives for £250,000. The marriage became unhappy and there was a history of violence by the defendant towards Ninderjit. On a number of occasions she went to stay at a woman’s refuge, and the local Social Services Department became involved. In March and September 1986 the defendant proposed for two further insurance policies, increasing the total cover on their joint lives to £800,000. In October 1986 Ninderjit again went to a womens refuge. After attempting unsuccessfully to abduct her by force, the defendant persuaded her to leave under the terms of a written agreement in which he made promises for her future safety and agreed to pledge money for her security. Nine days later they travelled together to the Punjab where they both had relatives. On 16 January 1987 the defendant with the help of another man or men, strangled Ninderjit with her scarf while they were on a car journey. He reported her death to the local police, saying that she had been the victim of a hit and run road accident. By using an accomplice to impersonate the deceased’s brother and probably by bribery of local officials, the defendant was able to have Ninderjit’s body cremated without a post mortem examination and without her family having seen her. He then returned to England and claimed on the insurance policies.”
[10]In his general comments, the trial

judge said this:

“The defendant has a strong and sometimes violent temper, but the offence was carried out in cold blood. He regarded his wife with dislike and contempt, and planned to profit from her death. He calculated that by persuading her to go to the Punjab and murdering her there, he would achieve his ends. He showed a chilling ruthlessness. I consider him a very dangerous man.”
[11]In his recommendation of 18 years, the Lord Chief Justice, Lord Bingham said this “This was a very deliberate, planned killing, motivated at least in part by avarice. It clearly calls for a term longer than normal. But I think a term of 18 years would meet the requirements of retribution and general deterrence.”[12]I turn to my conclusions on this application.[13]This patently was a cold blooded murder committed for financial gain. In these circumstances on any application of the principles in schedule 21 of the Act, I consider this case would fall under paragraph 5, being a case where the seriousness of the offence is properly to be characterised as one which is particularly high (see paragraph 5(1) and Paragraph 5(2)(c)). The appropriate starting point for the minimum term under those principles is accordingly 30 years. I can find no mitigating factors of any weight but there is an aggravating factor of a significant degree of planning and premeditation. These considerations would lead to a minimum term of at least 30 years, based on the Schedule 21 principles. But of course I am obliged to fix a term no greater than the term notified by the Home Secretary, being one of 18 years and I must also have regard to the like recommendation of the Lord Chief Justice. I can see no justification however despite the submissions made on the applicant’s behalf, for reducing the term below 18 years which itself was significantly less than the 22 years recommended by the trial judge. I am not impressed by citation of other decisions under these transitional arrangements which are inevitably fact specific. I respectfully agree with the assessment of the then Lord Chief Justice that the circumstances of this offending clearly called for a term longer than the normal.[14]I should add I have had regard to the Applicant’s good behaviour and progress in prison referred to in the submissions and matters which the applicant has drawn to my attention in this regard in a typed letter but none of this is of such exceptionality that it enables me to alter what is otherwise in my judgment the appropriate minimum term.[15]I do however 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 he was held on remand for 23 months and 23 days and that the minimum term should be reduced by that period.[16]For these reasons the minimum term in this case is to be specified as 18 years less the period of 23 months and 23 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 minimum term.