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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Alker, R v [2007] EWHC 1068 (QB) (16 May 2007) URL: http://www.bailii.org/ew/cases/EWHC/QB/2007/1068.html Cite as: [2007] EWHC 1068 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London WC2A 2LL (Sitting at Bristol Crown Court)
		16/05/2007

Mr Justice Beatson :

Background

1. On 14 October 2003 Christopher Alker (born 1 March 1960) pleaded guilty at the Crown Court at Snaresbrook to an indictment containing one count of murder and one count of perverting the course of public justice. H.H. Judge Radford sentenced him to life imprisonment for the murder and to four years imprisonment for the count of perverting the course of justice.
2. The defendant is an "existing" prisoner who had not, before the commencement of the relevant provisions of the act, been notified by the Secretary of State as to the minimum term he should serve before the Parole Board can first consider his case. His case now comes before the court pursuant to schedule 22 of the Criminal Justice Act 2003 ("the 2003 Act") for the determination of the period of imprisonment to meet the requirements of retribution and deterrence ("the minimum term") in respect of the mandatory life sentence imposed on him.

The Facts

3. The defendant and his wife sub-let rooms from the deceased, Alaric Zerdzinski. Mr Zerdinski was a somewhat eccentric man living a mildly Bohemian lifestyle. The defendant's wife and he had fallen out and had not spoken for a number of years prior to his death. The last day on which any of Mr Zerdzinski's friends or family heard from him was 16 July 1998. The police had investigated his disappearance from 8 November 1998. The defendant maintained to the police and all other enquirers that Mr Zerdzinski was still alive. In fact, within 12 days of Mr Zerdzinski's death on 16 July 1998 he had taken steps fraudulently to obtain Mr Zerdzinski's shares which he sold. He utilised the proceeds of the shares and other assets to buy Premium Bonds in Mr Zerdzinski's name and to discharge his wife's debts. the defendant's dishonesty led to him being charged and tried for dishonesty and forgery of a power of attorney. At his trial in February 2001 he maintained that Mr Zerdzinski was alive and had given him authority to act and to dispose of his assets. He was convicted by the jury and sentenced to eighteen months imprisonment.
4. In July 2002 a new technique for the analysis of DNA was used to retest a white substance which had been recovered from Mr Zerdzinski's garden pond in 1999. This analysis provided moderately strong evidence that the white substance originated from Mr Zerdzinski or another person maternally related to his sister.
5. The defendant was arrested for murder on 11 December 2002. On 19 February 2003 in an interview he admitted to having killed Mr Zerdzinski on 16 July 1998. He stated that they had argued, that Mr Zerdzinski had attacked him with a hammer, and that he had stabbed and killed him in self-defence. He said that when the body started to decompose he had dismembered it with a machete in an old bath and buried the bits in dustbin bags under the pond area of the garden. After the police visited the property on 8 November 1998 he dug up the body parts and moved them to Kent where he left them at different places not far from the M2. Following this interview the defendant took the police to a site near the M2 in Kent where a torso in a bin bag was recovered. The torso was badly decomposed and the post-mortem did not reveal how Mr Zerdzinski had died.
6. The defendant, who had indicated that he would be pleading not guilty to murder, was arraigned at the Central Criminal Court on 6 October 2003. He pleaded guilty to the charges of murder and perverting the course of justice.

The approach of the trial judge

7. In his report to the Home Secretary, the trial judge wrote

"There was no forensic evidence or post-mortem evidence as to how the victim met his death due to the defendant's concealment of the death from 16 July 1998 until 19 February 2003 and his dismemberment of the body and disposal of the body parts. There was no account of his death save for that given in interview on 19 February 2003 by the defendant. However, in my view, that account must be treated with great caution as it would appear to give rise to issues of self-defence and provocation and was the basis upon which the case was contested and set down for trial on 3 November 2003. Upon arraignment the defendant pleaded guilty to the indictment. I sentenced him on the basis that in the course of a confrontation with the victim at their home the defendant killed him - he said by stabbing him with a knife he picked up in the kitchen and without an intent to kill. In making my recommendation, I gave him credit for his plea of guilty to murder pre-trial which I accept showed, albeit belatedly, remorse for his criminality. The principle aggravating factor which I took account of (as charged in count 2 as perverting the course of public justice) was his concealment of the death, his dismemberment and thereafter disposal of the body and his protracted mendacity (even on oath as a witness at his trial in February 2001) about whether the victim of his offence was still alive."

8. The judge stated that while a psychiatric report was submitted in mitigation, there was no evidence of mental illnesses. The judge recommended a tariff of 12 years. By the date of the judge's recommendation (16 October 2003), the provisions of the 2003 Act were about to come into force. No doubt because of this, the recommendation was not put before the Lord Chief Justice for comment.

These proceedings

9. I have received representations on behalf of the defendant, from Steele and Shamash, his solicitors. They have not requested an oral hearing. I have also considered the transcript of mitigation put forward following the defendant's plea, and the psychiatric and psychological reports prepared on behalf of the defendant. His solicitors state these constitute the representations on tariff now made on his behalf. In summary, their representations are that the defendant had a complex and difficult friendship with the deceased. They would often sit and talk for hours. During the eight years that the defendant and deceased lived in the same house there were less than five raised voice arguments and none of the deceased's friends suggested that they were aware of any violence or threats against the deceased. In relation to the defendant's fraudulent acquisition of Mr Zerdzinski's assets, it is said that there is nothing in the defendant's background to show that he had ever been motivated by money. It is also said that at the time of Mr Zerdzinski's death neither the defendant nor anyone else was aware of his savings and investments. In the light of the evidence there was no suggestion that this was a killing for money. It is further said that the killing was not premeditated and the defendant's subsequent conduct was the conduct of a weak as opposed to a wicked man. Having decided not to call the police and to lie, first to his wife, then to the deceased's friends, and then to the police, it became increasingly difficult to turn back.
10. It is submitted that as time went on the defendant retreated into the fantasy he had created. By the time of his initial arrest in February 1999, he had come to believe the lies that he had told and had disassociated himself from reality. It is suggested that the defendant's action after his arrest for the second time was the strongest piece of mitigation. It is said that at that time the evidence against him was arguably weak, given the fact that the DNA evidence was as a result of a new technique, and gave only moderately strong support for the prosecution case. It is submitted that his decision to provide a voluntary interview, to assist in the recovery of the body, and to plead guilty to murder were brave decisions. A more cynical and unscrupulous person may have sought to rely on documents suggesting that Mr Zerdzinski was capable of irrational behaviour in support of a defence of self-defence or provocation. It is also said that the defendant tried to do what little he could to help the deceased's family in particular by giving an account of how the deceased met his death and doing what he could to assist the recovery of the body.
11. I have carefully considered all the reports that were before H.H. Judge Radford. Dr. Boast's report states that it is difficult to give an opinion on the defendant's mental state because that depends on whether he was telling the truth about the circumstances of Mr Zerdzinski's death and whether he was accurately reporting his mental condition. Dr. Boast also sounded a note of caution about the defendant's statement that he was not stressed by being in debt in the months before Mr Zerdzinskis death. He stated that it could not be said that the defendant was suffering from a mental abnormality at the time of the alleged offence but thought that it was possible that he helped to cut himself off from the seriousness of his actions by constructing in his own mind a fictional account. Dr. Boast stated that the defendant at that time, 29 July 2003, presented with some anxiety symptoms and that he maintained psychological balance by living some of his life in the fantasy world of his writings. Jackie Craissati, a forensic and clinical psychologist, stated that the defendant's account of the killing is one of self-defence in the face of a determined violent assault and she was not able to comment on the truth of this account. She also referred to a tendency towards retreating into a fantasy life, cutting off from uncomfortable reality, indifference to friendships and inability to express affection and warmth. She stated that he presented a predominantly anxious profile which, however, probably did not meet the full criteria for personality disorder. She did not consider him to have been suffering from an abnormality of mind at the time.
12. In determining the seriousness of this offence I have paid careful regard not only to section 269(5), 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 set. This murder was committed on 16 July 1998, i.e. before 31 May 2002, and as a result the best guide is Lord Bingham CJ's letter of 10 February 1997. In summary, under that indication, 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.
13. Applying these principles I consider that the defendant's conduct in concealing the death, dismembering the body and thereafter moving and disposing of it, and his protracted lies about what happened are significant aggravating factors. What he did may have been affected by the personality traits described in the reports of the psychiatrist and the psychologist and he did give an account of the death, assist in the discovery of the body and eventually plead guilty. But he only did these things after the new DNA evidence became available. Apart from his personality traits and his plea of guilty, the appropriate starting point would have been higher than the 14 years to which Lord Bingham's letter refers, I have concluded that the judge's recommendation of 12 years appropriately reflects all the mitigating factors relied on in the submissions and is no greater than that which the Secretary of State before December 2002 would have been likely to have set.
14. Accordingly, I am of the view that the appropriate period to fix is 12 years. From that term the period of his remand in custody, namely 10 months is to be deducted.