August 2008

Child killer fails in sentence challenge

A SADISTIC child killer who indecently assaulted a three-year-old before throwing her into a river has failed in a challenge against his 30-year minimum jail term at London’s High Court.

Xavier Themis, 50, then known as Gary Hopkins, was convicted of murdering Leoni Keating in June 1986 at Ipswich Crown Court.

He abducted the girl from a caravan park in Great Yarmouth and her body was found four days later in a river near Mildenhall.

Initially he was told that he would die behind bars but Themis later had his tariff – the minimum time he must spend behind bars before being considered for parole – reduced by then Home Secretary Michael Howard to 30 years in 1994.

At London’s High Court yesterday, Themis attempted to have his tariff slashed even further with his lawyers telling Mr Justice Field that he had made such good progress behind bars it should be cut.

The judge was also told that there was a possibility that Themis – who has a high IQ – was suffering from Asperger’s syndrome at the time of the killing.

But describing the murder as “sheer evil” and “horrific”, Mr Justice Field said Themis was fit to stand trial at the time his case went to court and would have had no defence of diminished responsibility.

He added that the way he had conducted himself in prison had not been “exceptional” enough to justify a cut in his tariff.

On Friday September 13, 1985, Themis took Leoni from a caravan on the Seashore Holiday Camp at Great Yarmouth.

Her body was found four days later in the River Lark at Barton Mills. near Mildenhall. She had been gagged, her hands were tied up with a washing line and she had been sexually assaulted.

A police search was launched and a search of the waterway and nearby picnic site was undertaken for vital missing clothing.

Eight months later unemployed labourer Hopkins, from Bedford, was given four life sentences for abducting and murdering Leoni – and for the kidnap of a 10-year-old girl from an Essex caravan site and kidnap of a 14-year-old girl from a Great Yarmouth caravan site.

Hopkins had admitted kidnapping Leoni but denied murdering her. He claimed he left her alive but with her hands tied in woodland.

Given the time he spent on remand before sentencing, yesterday’s ruling means that Themis -27 at the time of the murder – can seek parole in 2016. He will only be freed once he has convinced the authorities he is no longer a danger to the public.

JUDGEMENT ON REVIEW OF MINIMUM TERM

Mr Justice Field:

1. On 25 June 1986 the applicant, Xavier Themis, was convicted of the murder of Leoni Cornell, a little girl aged 3 years.

During the night of 13 September 1985, Themis took Leoni from the caravan where she had been left by her mother. He masturbated over her and penetrated her vagina with his finger. He then tied her hands behind her back and threw her into the water channel at Barton Mills.

Three days later, she was found dead in the water 200 yards away. The cause of death was drowning. At the time of the murder, Themis was 27 years old.

2. The trial judge, Mann J, recommended that Themis serve a minimum of 25 years before being eligible for parole.

The Lord Chief Justice was of the view that Themis should remain in prison until he died and recommended a tariff of 99 years.

The Home Secretary imposed a tariff of 30 years which was notified to the applicant on 22 November 1994.

3. Themis now applies under s. 276 of the Criminal Justice Act 2003 (“the Act”) to have the notified minimum term of 30 years reviewed.

He has not sought an oral hearing and I am satisfied that his application can be determined justly and in accordance with his rights under the Human Rights Act 1998 on the documents and the written submissions provided to the court.

Included in the documents are numerous psychiatric reports, a Healthcare Report as part of a Category A Review, a CPA/Ram Occupational Therapy Report and a document entitled The Integrated Multi-Disciplinary Treatment Model For the DSPD Unit at HMP Whitemoor.

4. Under paragraph 4 (1) and (2) of Schedule 22 to the Act, when reviewing a notified minimum term the court must have regard to the seriousness of the offence and in doing so must have regard, inter alia, to:

(i) the length of the notified term;

(ii) the general principles set out in Schedule 21; and

(iii) any recommendations to the Home Secretary by the trial judge and the Lord Chief Justice as to the minimum term before the applicant could be released on licence. Further, the court cannot fix a minimum term of a greater duration than the notified minimum term (see para. 3 of Schedule 22).

5. Paragraph 4 (1) of Schedule 22 to the 2003 Act provides that if the court considers the seriousness of the offence is exceptionally high and the offender was aged 21 or over when he committed the offence, the appropriate starting point in setting the minimum term is a whole life order. Paragraph 4 (2) sets out a non-exclusive list of cases that would normally fall within paragraph 4 (1).

Included in that list is “(b) the murder of a child if involving the abduction of the child or sexual or sadistic motivation.” As stated above, the applicant abducted Leoni and masturbated over her and digitally penetrated her vagina before throwing into the water with her hands tied behind her back.

Given these circumstances, if the minimum term were being fixed for first time under the 2003 Act, the appropriate starting point in my judgement would be a whole life order.

6. Even if this were wrong, the lowest starting point would be 30 years under paragraph 5 (1) of Schedule 21 which applies to cases not falling within paragraph 4 (1) but where the court considers that the seriousness of the offence is particularly high, such as a murder involving sexual conduct.

7. The next stage under Schedule 21 is to consider whether the starting point should be increased to take account of aggravating factors and then to see if the term should be reduced in the light of any mitigating factors. A list of mitigating factors that might be relevant is set out in paragraph 11 of Schedule 21.

8. In my opinion, a whole life order or a starting point of 30 years would each take account of the full horrific nature of Leoni’s murder.

Neither of these starting points therefore would be further increased. I am also of the view that there are no mitigating factors.

The applicant raises the argument that at the time of the murder he may have been suffering from Asperger syndrome. But even if he were, this would not mitigate the sheer evil and cruelty of the murder.

The applicant was fit to plead and did not fall within either of the McNaghten Rules.

Further, there is nothing to suggest that Asperger syndrome would have given the applicant a defence based on diminished responsibility.

9. The applicant also prays in aid the progress he has made in prison. After a poor start he has done well educationally. He has a high IQ.

However, in my judgement, his conduct in prison has not been sufficiently exceptional to justify a reduction in what would otherwise be the appropriate minimum term.

10. I bear in mind the recommendation of the trial judge but am firmly of the view that there are no grounds for reducing the notified minimum term of 30 years.

The minimum term that the applicant must serve is therefore 30 years from which the time he spent in custody on remand – 6 months and 22 days—stands to be deducted.