Sullivan, R v

For a mandatory life sentence, the minimum term is the period the court considers appropriate for seriousness, namely punishment and deterrence. Public protection is secured by the life sentence and is considered by the Parole Board after expiry of the term.

The court must have regard to the starting points and factors in Schedule 21 to the Criminal Justice Act 2003, but retains a lawful discretion to depart from them with reasons. For pre-commencement offences, the Schedule 22 cap requires a two-stage assessment and protects the offender from a heavier minimum term than the former practice would likely have produced. For offences committed after the May 2002 Practice Direction came into force, that Direction should be used in applying the cap.

Four conjoined appeals challenged minimum terms imposed on mandatory life sentences for murder under section 269 of the Criminal Justice Act 2003. Each murder pre-dated the commencement of the new statutory regime on 18 December 2003.

Sullivan received a term of 13 years and 88 days after a neighbour was fatally stabbed during a late-night confrontation. Gibbs received 17 years after fatally stabbing a passenger whom he had followed from a bus. Barry Elener received 27 years and his father Derek Elener 25 years following armed cash-in-transit robberies culminating in a fatal shooting.

The central issues were the effect of Schedule 21, the transitional cap in Schedule 22 paragraph 10, and whether the individual minimum terms were manifestly excessive.

1. The Gibbs appeal was allowed. His minimum term was reduced from 17 years to 14 years, subject to credit for time spent on remand. The appeals of Sullivan, Barry Elener and Derek Elener were dismissed.

2. Under section 269 of the Criminal Justice Act 2003, the sentencing judge must determine the period appropriate to reflect the seriousness of the murder. The judge must have regard to the Schedule 21 principles, but they are guidance rather than inflexible rules. A departure is permissible where required for an appropriate term, provided reasons are given.

3. The court reaffirmed the distinction explained by R (Anderson) v Secretary of State [2003] 1 AC 837. The minimum term addresses punishment and deterrence. The life sentence protects the public, and the Parole Board decides whether continued detention is necessary once the minimum term has expired. Accordingly, risk-based matters should not increase the punitive term. Mental disorder may nevertheless mitigate culpability and reduce that term.

4. For offences committed before 18 December 2003, Schedule 22 paragraph 10 requires the judge first to assess the term under Schedule 21 and then reduce it if necessary so that it does not exceed the term the Secretary of State would probably have notified under the former practice. To avoid prejudice under Articles 5 and 7.1 of the European Convention, offences committed after the May 2002 Practice Direction came into force should be assessed by reference to that Direction. It provides the best evidence of the former practice during its period of operation and produces a term no longer than that under Schedule 21.

5. Applying those principles, Sullivan’s term of about 14 years was appropriate under either body of guidance. Gibbs’s 17-year term did not sufficiently reflect his mental disability, and 14 years was appropriate. The Eleners’ armed, professional robberies and fatal shooting justified 30-year starting points; the reductions to 25 and 27 years respectively properly reflected the available mitigation.

• Court of Appeal (Criminal Division) Conjoined sentencing appeals. The court allowed Gibbs’s appeal and substituted a 14-year minimum term. It dismissed the appeals of Sullivan and Barry and Derek Elener.
• Crown Court at Norwich On 9 March 2004, Aikens J convicted Sullivan of murder and imposed life imprisonment with a minimum term of 13 years and 88 days.
• Central Criminal Court On 22 December 2003, HHJ Morris QC convicted Gibbs of murder after a retrial and imposed life imprisonment with a 17-year minimum term. His earlier conviction had been quashed and a retrial ordered on 7 May 2003.
• Crown Court at Leeds On 12 March 2004, Wakerley J imposed mandatory life sentences with minimum terms of 27 years on Barry Elener and 25 years on Derek Elener.