Machin, R v

The defendant, Ian Machin, born 12 December 1968, was convicted of the murder of Simon Dawson at the Crown Court in Manchester on 20 October 2003. He was sentenced to life imprisonment. On 5 November 2003 the trial judge, H.H. Judge Clement Goldstone Q.C. recommended that he should not be considered by the Parole Board for release on licence until he had served a period of 16 years imprisonment. By the date of that recommendation the provisions of Schedule 22 of the Criminal Justice Act 2003 ("the Act") were about to come into force and the Lord Chief Justice did not comment on the recommendation and the Secretary of State has not fixed a minimum term in respect of the defendant. The matter comes before me pursuant to Schedule 22 for the determination of a minimum term.

The relevant facts, as described by the judge, were these:

The legal issues before the court concerned the admissibility of certain evidence. Certain telephone evidence was excluded but the finding of a bloodstained motorbike was admitted. The other issue before the court was the sufficiency of the evidence for the jury. The question for the jury was whether the defendant was involved in what was accepted to be a case of murder. There were no medical considerations before the court.

In making his recommendation the judge observed:

In representations on behalf of the defendant the court is asked to revise the 16 year minimum term to a lower period less the time spent on remand. No application has been made for an oral hearing. I received no representations from the victim's family. I am told they have not been in touch with the relevant branch of the Home Office.

It is conceded that the defendant's premeditation and lack of remorse were aggravating features. It is, as it has to be, accepted that the defendant did not have the benefit of a guilty plea since he had contested the charge. The approach of the representations to aggravating and mitigating factors, however, do not reflect the approach taken either by Lord Bingham CJ in his letter of 10 February 1997 (on which see below) or in the provisions of schedule 21 to the 2003 Act. Thus, the first seven factors and the last factor relied on as mitigation are in fact simply the absence of factors listed in paragraph 10 of schedule 21 as aggravating factors. It is said that there was no "obvious premeditation" and no "significant degree of planning". The only factor relied on in relation to this submission was that the first call was made at 10.06am, and another call was made at 10.25am but by 11am the victim had been stabbed. This is, however, consistent with premeditation and a degree of planning. It does not provide support for a submission which in effect invites this court to reject the conclusion of the trial judge. Similarly, no material has been advanced on which it would be open to this court to depart from the trial judge's conclusion that the motive for the killing was to gain control of the deceased's drug business. The judge, who had presided at a trial lasting almost a month, concluded that the defendant "killed a young man for the right to operate his drug-dealing business": see sentencing remarks, page 1 E-F.

In determining the seriousness of this offence I have played close regard not only to section 269(5) of the 2003 Act which came into force on 18 December 2003, but also to the trial judge's recommendation. Furthermore, I have been careful not to impose a term which is greater than that which, under the practice followed by the Secretary of State before December 2002, the Secretary of State would have been likely to have set. This murder was committed on 19 June 2002, i.e. before 31 May 2002. As a result the best guide is Lord Bingham C.J's letter of 10 February 1997.

In summary, under that 14 years is the starting point for an "average" unexceptional offence. I have weighed the mitigating and aggravating factors set out in that document, as well as the general principle set out in schedule 21 of the Act. I have had regard to paragraph 29 of the Court of Appeal's decision in Sullivan 2004 EWCA Crim.1762. The court stated that the fact that Lord Bingham listed an absence of intention to kill and lack of premeditation as mitigating factors showed that the 14 year period was intended to cover more serious murders. The representations on behalf of the defendant are, however, incorrect in stating that the 14 year period applied where a weapon was used. Lord Bingham referred to the use of dangerous weapons, whether carried for defensive or offensive reasons, as a factor likely to call for a sentence more severe than the 14 year norm. In this defendant's case his use of a weapon -a knife-, his luring of his victim to the scene by telephone and his premeditation to that extent, and the fact that this was a killing for gain are all factors justifying a higher minimum term than the 14 year average.

In my view the judge's recommendation of 16 years appropriately reflects the mitigating and aggravating factors rehearsed above, in particular on the mitigating side, the absence of an intention to kill. Moreover, this recommended term was appropriate at the time of this offence and is no greater than that which the Secretary of State before December 2002 would have been likely to have set. Accordingly I set the minimum term at 16 years. From that term the period of the defendant's remand in custody, namely 7 months and 8 days is to be deducted.