Akgun, R v [2014] EWHC 2849 (QB)

Case No MTS/4/2014[2014] EWHC 2849 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of JusticeDate Date: 26 /11/2014
Strand
LONDON WC2 A 2LL
Sitting in the Crown Court at Winchester
Before
THE HONOURABLE MR JUSTICE GRIFFITH WILLIAMS
Between
THE QUEENCrownHASAN AKĞUNDefendant
The Decision on Review of the tariff in the case of:
JUDGMENTMr Justice Griffith Williams :Introduction
[1]On 8 November 2010, in the Regional Court, Augsburg, Germany, Hasan Akgűn (“the defendant”) and Nese Baser were convicted of the murder of Baris Baser. Both were sentenced to life imprisonment with a determination in the case of the defendant of “a severe gravity of guilt”. The consequence of that determination to the defendant, if he had had to serve his sentence in Germany, would have been that the first date for a review of the life sentence in accordance with the provisions of section 57(1) and(2) of the German Criminal Code would have been 28 October 2024, that is 15 years after conviction less the 496 days he had spent awaiting extradition and in pre-trial custody. Further, he could have expected both to serve more than 15 years and that an early release before completing 20 years imprisonment would have been highly improbable. The judgment has been final since 9 March 2011.[2]On 22 March 2013, the defendant was transferred to the United Kingdom from Germany pursuant to a warrant dated 4 March 2013 issued in accordance with the provisions of the Repatriation of Prisoners Act 1984. The Secretary of State has now referred the defendant’s case to the High Court pursuant to the provisions of section 273(1) of the Criminal Justice Act 2003 (“the Act”) for the making of an order under sub-section (2) or (4) of section 269 of the Act which provide: “(2) the court must, unless it makes an order under sub-section (4), order that the provisions of section 28 (5) to (8) of the Crime (Sentences) Act 1997 (referred to in this Chapter as “the early release provisions”) are to apply to the offender as soon as he has served the part of his sentence which is specified in the order… (4) if the offender was 21 or over when he committed the offence and the court is of the opinion that, because of the seriousness of the offence, or of the combination of the offence and one or more offences associated with it, no order should be made under sub-section (2), the court must order that the early release provisions are not to apply to the offender”.[3]I do not consider an oral hearing is necessary, the defendant not having requested one or made any representations The Administrative Court Office provided the defendant with a copy of this judgment in draft before 19 August 2014, the date the judgment was to be handed down at the Cardiff Civil Justice Centre. On 19 August, Guven Ates of Morgan HAS, Solicitors, requested an adjournment stating that the firm were instructed in the matter, that they had attended upon the defendant on various occasions and taken his instructions in respect of the Court’s determination pursuant to the provisions of section 273 (1) of the Act, that they wanted to make representations on his behalf and were surprised the case was listed that day. In the circumstances, the judgment was not handed down and the case was adjourned generally. By an email dated 21 August, Mr Ates confirmed the above and asked for an adjournment of 2-3 weeks. Subsequently Mr Ates failed repeatedly to respond to telephone messages. There is a note of a telephone call by Mr Ates to the Listing Officer in Cardiff Civil Justice Centre on 12 September when he said he had only received a copy of the draft judgment that day from the defendant, that he would look at it as soon as possible and get back within a few days. He made no further contact. By an email dated 1 October, the Administrative Court Listing Office manager informed Mr Ates there is no record on the court file of him representing the defendant. He was told the adjourned hearing had been listed on the 11 November in the Crown Court at Winchester and any written representations on his behalf had to be filed a fortnight before the hearing date. By a later email dated 22 October, he was told that any representations filed by him should be emailed to the judge’s clerk and to the Listing Office manager by no later than close of business (5pm) on 28 October 2014. None were received. By an email dated 29 October, Mr Ates was told that if a response was not received by the end of that week (31 October) the judgment would be handed down. As no representations have been received, the assumption must be that the defendant does not seek to make any. .[4]This is not a case in which there should be an order under section 269 (4) of the Act and so I must determine the minimum part of his sentence the defendant must serve before the Parole Board will consider his release on licence. Section 269 (3) and (5) of the Act provide:
“(3) The part of his sentence is to be such as the court considers appropriate taking into account – (a) the seriousness of the offence … and (b) the effect of section 240ZA (crediting periods of remand in custody) … (5) In considering under subsection (3) … the seriousness of an offence … the court must have regard to – (a) the general principles set out in Schedule 21 ..” (b) the effect of section 240ZA (crediting periods of remand in custody) … (a) the general principles set out in Schedule 21 ..”

The Facts

[5]The defendant who was born in Turkey on 1 January 1969 and so is now 45 years old, moved to London in January 1989. Following his marriage in 1992, he acquired British citizenship. He has known Nese Baser since childhood as they come from the same village in Turkey and are distantly related.[6]Nese Baser married her cousin, Baris Baser (“the deceased”) whom she did not love. Despite his love for her, she was unable to develop any genuine affection for him. The birth of their son in 2006 did not change matters. They lived in a flat in Augsburg but she spent several months of the year in Turkey without her husband staying at her mother’s home in Ankara. The defendant and the deceased had been known to each other for a long time, meeting occasional at family gatherings in Augsburg and also in Turkey. The defendant had stayed at the Baser flat in August 2009 when Nese Baser was in Turkey (see below).[7]The defendant and Nese Baser began a love affair in 2005. The defendant travelled to Germany for secret meetings with her and they met frequently in Turkey. They were in regular phone and SMS contact. They talked regularly of being together and of a shared future, but Nese Baser refused to divorce her husband fearing she would blemish her family’s honour by so doing. And so it was that the defendant often talked of killing him. On an unknown date before 8 September 2009, they decided jointly that the defendant would kill him.[8]On 7 July 2009, Nese Baser and her son went to Turkey, the arrangement being that her husband would join them there on 19 September and they would return together to Augsburg on 8 October 2009. On 11 August 2009, the defendant flew to Turkey with his return flight booked for 10 October. The plan was to create the impression that they were both in Turkey at the time of the murder.[9]On 6 September, the defendant booked a return flight from Ankara to Munich leaving on 8 September at 0825 hours to return at 0135 hours on 9 September. Nese Baser gave him the key to the flat so that he could enter it before the deceased returned later that evening from work and lie in wait for him. This he did, telephoning her from the flat once he was there. In the flat, he armed himself with two knives and a marble vase from the kitchen and put on disposable gloves.[10]The deceased arrived home at about 2230 hours and, as was his usual practice, took off his shoes at the entrance door, unlocked the door, and entered the flat in his stockinged feet. As he was about to put on his slippers, the defendant stepped out from his hiding place and hit him with the vase on the back of the head. The two men started to fight in the corridor, moving towards the bedroom where the defendant hit the deceased’s head again. He fell to the bedroom floor where the defendant continued to attack him with the vase until the base of the vase broke off. He then stabbed him repeatedly with both knives. When they were bent out of shape, he went to the kitchen to fetch another knife which he used in his continued attack using the vase also until it broke into pieces. Whilst the deceased was lying almost motionless on the floor, he inflicted further injuries with the knife, finally stabbing him twice to the back of the neck severing the spinal cord. He then wrapped a red shirt around his head fixing it with a torn cable and hit the head violently with a fragment of the vase. Finally he draped a blanket completely over the body.[11]After removing the disposable gloves, and washing his face and hands, he took off his bloodstained clothes, putting on a pair of tracksuit trousers and a shirt belonging to the deceased. After deleting from the memory of the landline the phone call he had made to Nese Baser, he left the flat taking the gloves and his blood stained clothes with him.[12]In all the deceased suffered at least 26 stab wounds with depths of penetration of up to 5 centimetres or more. There were several stab wounds to the lungs, the diaphragm and the liver. The notable wound was the one which severed the spinal cord.[13]After leaving the flat, the defendant disposed of the clothes and gloves in a dustbin and travelled to Munich Airport where he bought a pair of trousers, a shirt and shoes and after having a shower dressed in his new clothes. Between 2351 hours on 8 September and 1332 hours on 9 September, the defendant and Nese Baser exchanged 50 SMS messages and made 1 phone call. The body was found at 0415 hours by which time the defendant was en route to Turkey.[14]The defendant remained in Turkey until 29 October when he flew back to London. When he arrived at Heathrow Airport, he was arrested pursuant to an arrest warrant issued on 18 September 2009. He was extradited to Germany on 1 December 2009 and following the trial on various dates between 16 September and 8 November 2010, he was convicted of murder.[15]While the defendant admitted that he had killed the deceased, he denied that there had been a joint plan and stated that he had just flown to Germany to collect money from the deceased, who owed him €30,000. He claimed that in the flat, a ferocious argument developed with mutual punching and that the deceased had attacked him with a knife and so he had acted in self-defence. He claimed that Nese Baser had given him the keys because the deceased had said that he didn’t want him to stand in front of a locked door waiting for his arrival. There was evidence that the defendant had financial problems, owing some £20/25,000 to banks and other institutions, £4,000 in tax and €50,000 to a private lender in Turkey. He had sold his freehold flat in Ankara for €35,000 before he flew back to the United Kingdom on 29 October 2009.[16]The relevant provisions in the German Penal Code are:
“§211 German Penal Code. (i) a murderer should be punished with imprisonment for life; (ii) a murderer is any person who kills a human being out of murderous lust, for sexual gratification, out of greed or other base motives, treacherously or cruelly or with means dangerous to the public or in order to make another crime possible or cover it up. § 25 German Penal Code. (i) any person who commits the crime himself or through another, shall be punished as a perpetrator. (ii) if one or more than one person commits the crime jointly, each shall be punished as a perpetrator (co-perpetrator).”
[17]In its Judgment the Regional Court determined that in the defendant’s case “a severe gravity of guilt exists”. It found there is no doubt that the defendant intended to kill Baris Baser. It found also that the “treacherousness” and “other base motives” criteria applied. The judgment stated:
“According to prevailing opinion, a person acts treacherously, if he exploits with evil intentions the unsuspecting state of mind and defencelessness of his victim for the purpose of killing. “Unsuspecting state of mind” means that at the moment of an unforeseeable attack the victim is taken by surprise, reducing in this way any chances of self-defence. In this connection it is sufficient that a victim has no reason to reckon with an attack against his person and has no concrete suspicion at the moment of the first blow inflicted with the intention to kill. In order to apply the murder criterion “treacherous”, the victim must have been defenceless on account of his unsuspecting state of mind, depriving him of his ability to defend himself or greatly reducing his chances for defence. It is also necessary that the murderer was aware of the circumstances qualifying the killing as treacherous. He must have understood the effects of these circumstances facilitating the commission of his crime and must have realised that he was unexpectedly attacking an unsuspecting and thus defenceless victim. The proven facts show that the defendant Akgűn exploited intentionally the unsuspecting state of mind and defencelessness of his victim. The deceased had no reason to expect that the defendant would be in his flat and lying in wait for him there. Furthermore he did not open the door for the defendant. There was no verbal argument before the attack. The murder criterion “treacherous” applies because the defendant committed this murder with evil intentions based on hostile feelings… The question of whether a motive is base, that is to say at the lowest level of moral standards, must be examined in the context of an overall assessment including the circumstances of the crime, the personality of the perpetrator and the conditions of his life. This crime is not only out of all proportion to the reason given in justification, it was also determined by crass egotism. With the killing of Baris Baser, the defendants, wanted to improve their own situation, eliminating a husband who stood in the way of their love affair. It was not possible to ascertain as an additional decisive motive whether the defendants connected financial expectations with the murder of Baris Baser, since the co-defendant Nase Baser would have come into an inheritance. On the basis of its overall assessment the court regards the motivation of this crime, committed for gratification of personal desires, not only as reprehensible, but also as absolutely despicable and on the lowest level of moral standards.”

The minimum term

[18]Applying the provisions of Schedule 21 of the Act, the decision of the Regional Court (see above) that there was no financial motive, precludes a starting point of 30 years: paragraph 5(2)(c). The fact that the weapons used in the killing were not taken to the flat, precludes, on a strict construction of paragraph 5A(2), a starting point of 25 years but in my judgment, a starting point of 15 years is too low. The defendant clearly intended to kill the deceased and to do so needed to be armed. He knew he could obtain any necessary weapons in the flat and so he did not need to go there armed. It follows there was a highly significant degree of planning and pre-meditation; there were additionally the following aggravating factors: i) The assault was prolonged and savage in its intensity. ii) The killing was carried out as part of the joint enterprise.[19]The only mitigating factor is the defendant’s previous good character.[20]Applying the provisions of Schedule 21, the starting point should be 25 years less the 33 days in custody awaiting extradition and the 463 days in prer-trial custody, a total of 496 days.[21]The provisions for the issue of the warrant to transfer the defendant to the United Kingdom required his understanding that his detention would be subject to the law of England & Wales: see section 1(4) of the Repatriation of Prisoners Act 1984. While he was informed in a letter dated 26 February 2014 that the court, when considering the appropriate term to be set under section 269 (see paragraph 4 above), will take into account the relevant paragraphs of Schedules 22 and 21 of the Act, Schedule 22 has no application on the facts of this case, the murder having been committed after the commencement date of 18 December 2003.[22]However, I observe that Schedule 22 makes specific provision for the circumstances when a judge determined a minimum term of longer length than that which would have been notified by the Secretary of State in respect of murders committed before the commencement date, in which event the minimum term must not be greater than that which, under the practice followed by the Secretary of State, the Secretary of State would have been likely to notify: see paragraph 10(a). This is a relevant consideration because the minimum term which I consider is appropriate would be longer than the minimum term which the defendant could have expected to have served in Germany (see paragraph 1 above).[23]The United Kingdom and Germany are signatories to the Transfer of Sentenced Persons’ Convention 1983. Articles 9 and 10, as ratified by the United Kingdom, provide: “Article 9 – effect of transfer for the administering State 1. The competent authorities of the administering State shall: (a) Continue the enforcement of the sentence immediately or through a court or administrative order, under the conditions set out in Article 10. 2. The administering State, if requested, shall inform the sentencing state before the transfer of the sentence person as to which of these procedures it will follow. 3. The enforcement of the sentence shall be governed by the law of the administering State and that State alone shall be competent to take all appropriate decisions… Article 10 – continued enforcement. 1. In the case of continued enforcement, the administering state shall be bound by the legal nature and duration of the sentence as determined by the sentencing state. 2. … As to its nature, the punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing state (emphasis added), nor exceed the maximum prescribed by the law of the administering State.” (a) Continue the enforcement of the sentence immediately or through a court or administrative order, under the conditions set out in Article 10.[24]In NORMAN HULL –v- REGINA [2011] EWCA Crim 1261, the Court of Appeal Criminal Division was concerned with an application by a mandatory life prisoner transferred from the Republic of Ireland to serve the remainder of his sentence in the United Kingdom, for leave to appeal the order of Kenneth Parker J who had set his minimum term at 18 years to be served pursuant to a sentence of life imprisonment imposed by the Central Criminal Court in Dublin. Giving the judgment of the Court, Pitchford LJ said (paragraph 48):
“The task of the administering state under Article 10.2 is, when adapting a sentence, as far as possible to bring correspondence between the “punishment” which would have been imposed in the sentencing state and (the remainder of) the sentence to be served in the administering state. That will require a reasoned judgment as to the likely duration of the custodial element of the sentence had the sentence been served in the sentencing state. To do otherwise would require us to ignore the reality that in both countries a sentence of life imprisonment does not usually mean custody for life”
. See also R –v- SECRETARY OF STATE FOR THE HOME DEPARTMENT Ex parte READ [1989] 1 WLR 1014 at 1052D-1053E per Lord Bridge of Harwich.[25]As the evidence is that the defendant’s release in Germany before serving 20 years (to include the time spent on remand or in pre-trial custody) would have been highly improbable, it must be that he would have had the expectation of release on probation after he had served 20 years. In the circumstances, and to achieve correspondence, I have concluded that the appropriate minimum term is one of 20 years less the 496 days he spent on remand in pre-trial custody and awaiting extradition. His release will of course depend upon the views of the Parole Board. Decision The minimum term which the defendant must serve pursuant to the sentence of life imprisonment imposed by the Regional Court in Augsburg on 8 November 2011 is 20 years less the 496 total of days he spent on remand in pre-trial custody and awaiting extradition.

Cited in 1 later judgment