Rogers, R v

When fixing a minimum term under the transitional provisions for a mandatory life sentence, the court must apply the statutory starting-point and take account of aggravating and mitigating factors. The court may not exceed the relevant tariff ceiling where the earlier recommendation has not been reviewed and there is no reason to believe it would have been increased. Alcohol consumption and youth may mitigate culpability, but do not excuse a violent killing. The absence of evidence of attempted intercourse may also be relevant where sexual purpose aggravates the offence. Time spent on remand must be deducted. Release after the minimum term remains a matter for the Parole Board, subject to continuing detention where necessary for public protection.

The defendant was convicted unanimously of murder at Lewes Crown Court in 2000 and received a recommended tariff of 14 years, endorsed by the Lord Chief Justice. His extended appeal was unsuccessful before the Court of Appeal Criminal Division on 8 June 2006. The recommendation had not been considered by the Secretary of State because of legislative changes. The High Court therefore had to determine the minimum term under paragraphs 3, 6 and 10(a) of Schedule 22 to the Criminal Justice Act 2003, applying the principles in Schedule 21. The central issues were the applicable ceiling, the appropriate starting-point, the weight of aggravating and mitigating factors, and the deduction for remand custody.

1. The court was required to impose a minimum term under Schedule 22 to the Criminal Justice Act 2003. The earlier recommendations of 14 years were the ceiling under paragraph 10(a), since they had not been considered by the Secretary of State and there was no reason to believe that they would have been increased. The court relied on Sullivan, Gibbs, Elener and Elener [2005] 1 CAR(S) 67 (308) in reaching that conclusion.

2. The case did not fall within paragraphs 4(1) or 5(1) of Schedule 21. A starting-point of 15 years was therefore adopted. The aggravating features included a violent attack and an evident sexual purpose. The mitigating features included the defendant’s age, previous good character, alcohol consumption and the absence of premeditation. The absence of DNA or other evidence of attempted sexual intercourse was also relevant. These mitigating factors outweighed the aggravating factors.

3. The appropriate minimum term was 12½ years. After deducting 12 months and 11 days spent on remand, the minimum term was fixed at 11 years, 5 months and 19 days.

4. The minimum term was the period before which the Parole Board could not direct early release. It did not guarantee release at that point. If continued detention remained necessary for public protection, detention could continue. If released, the defendant would remain on licence for life and could be recalled to prison.

• Court of Appeal Criminal Division: the defendant’s extended appeal was unsuccessful on 8 June 2006.
• High Court (Queen’s Bench Division): the court imposed a minimum term of 11 years, 5 months and 19 days after deducting remand custody.