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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Fretwell, Re [2008] EWHC 155 (Admin) (01 February 2008) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2008/155.html Cite as: [2008] EWHC 155 (Admin)

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IN THE HIGH COURT OF JUSTICE
ADMIN

		Royal Courts of Justice Strand, London, WC2A 2LL
		01/02/2008

Mr Justice Silber :

1. On 1 May 1998 at the Leeds Crown Court Andrew Michael Fretwell ("the defendant") was convicted of murdering Natvarlal Parmar ("the deceased") on 4 January 1997. A sentence of life imprisonment was imposed. The trial Judge (His Honour Judge Walsh QC, the Recorder of Leeds) fixed a term of 16 years as being the period necessary to meet the requirements of retribution and general deterrence. Lord Bingham CJ agreed with a tariff of 16 years while the Secretary of State for the Home Department ("the Secretary of State") notified the defendant that he had fixed 15 years as the minimum period to be served.
2. The defendant has applied for review of the minimum term pursuant to schedule 22 of the Criminal Justice Act 2003 ("the 2003 Act"). I have received written submissions on behalf of the defendant but have not received anything from the victim's family. The defendant has not requested an oral hearing and I do not consider one to be appropriate.
3. The defendant, who was born on 8 April 1978, together with his co-accused Mark Gamble killed the deceased while he was sleeping in a sleeping bag in the doorway of the DSS Benefit office in Leeds. The motive for the attack was robbery and it was committed by the two defendants who had been riding past on pedal cycles. The deceased suffered severe damage to his brain and heavy blows mainly as a result of kicking and he never regained consciousness. One of his injuries was a series of criss-cross slash marks to his left cheek forming a "nought and crosses" pattern which had been inflicted with the blade of the deceased's own nail clippers by the defendant.
4. The defendant, who had previous convictions for robbery and theft, denied all involvement when interviewed by the police. He did not give evidence at his trial but he contended that there was "lack of intent" on his part or alternatively that he suffered from diminished responsibility. Both of these defences were rejected by the jury.
5. The view of the trial judge was that the defendant was of the two defendants "very much the major player in this offence and he inflicted the vast majority of the violence". In his report to the Secretary of State, the sentencing judge made those points and he stated of the defendant that "this sadistic aspect of the case and his record suggest that he presents a risk in the future".
6. The defendant has written a letter explaining his remorse for what he did and that he has learnt his lesson with the result that his minimum term should be reduced. Solicitors acting on behalf of the defendant contend there was a starting point of 15 years in accordance with paragraph 6 of schedule 21 of the 2003 Act and there were aggravating factors because (a) the victim was particularly vulnerable because of his age and (b) the physical suffering inflicted on the victim before his death.
7. It was also submitted on behalf of the defendant's solicitors that there were mitigating factors because (a) the defendant suffered from learning difficulties since his bicycle accident at the age of 10; (b) there was a lack of pre-meditation; and (c ) he was only 19 at the time of the offence. It is also said that the defendant has made much progress in prison but the defendant's progress does not reach the threshold for obtaining a reduction in the term in the light of the decision in Caines [2006] EWCA Crim 2915.
8. In setting the minimum term, I am not permitted to specify a period which is greater than (a) a term notified by the Secretary of State and (b) "the proposed term is no greater than the term which the Secretary of State would probably have notified under the practice followed by the Secretary of State before December 2002".
9. In this case the practice which would have been followed by the Secretary of State was that in the letter sent to Judges by Lord Bingham CJ on 10 February 1997 which was to take 14 years as the period to be served for the "average murder" and that is the period which I would take. There are then mitigating factors because of (a) the youth of the defendant and (b) the lack of pre-meditation. Against that there were aggravating features because this was (a) the killing of the very old or otherwise vulnerable victim; (b) this was an unprovoked attack on a defenceless man; (c) a case of sadism and gratuitous violence, humiliation before the killing in the form of scratching the noughts and crosses on the left cheek of the deceased and (d) a killing for gain because as the learned Recorder explained, robbery was the motive for this attack.
10. In my view the aggravating factors outweigh the mitigating factors and that the appropriate term would be one of 15 years. The next step I have to take is what would be to consider the position under the 2003 Act. In that case, the starting point would be 30 years because the motive for the killing was a robbery. The same aggravating and mitigating factors apply as I have set out in paragraph 9 above and this would likely lead to a final figure of in the region of 25 to 30 years.
11. As I have explained the term to be imposed cannot be greater than the term which the Secretary of State would probably have notified under the practice followed by him at the time of the offence and which for the reasons set out above was 15 years. The defendant is entitled to credit for 15 months and 22 days spent in custody on remand and thus his minimum term is with effect from 1 May 1998 a period of 13 years 8 months and 8 days.