AWAITING MUG SHOT PHOTO
1. On the 20 December 1989, following his conviction for murder before Mr Justice Ian Kennedy, after a trial at the Central Criminal Court, Donald Mackay was sentenced to the mandatory term of life imprisonment. Following the practice of the time, the judge recommended that he serve 18 – 19 years before being considered for release by the Parole Board (the judge thought that fully 30 years might elapse before the defendant could safely be released, but that is another matter). In due course, Lord Lane CJ recommended that the minimum term should be only 16 years. The Secretary of State fixed the minimum term which he must serve as 20 years. Under paragraph 3 of Schedule 22 of the Criminal Justice Act 2003, the defendant has now asked the High Court to review the minimum term fixed.
2. I base this factual narrative entirely upon the report of the trial judge. The victim, Ann Petherick, was aged 26; she was a prostitute. The defendant was then aged 41; he was one of her regular clients. She was last seen alive on 2nd January 1989. On 19th February her naked, decomposing body was found bundled in a black plastic bag in the defendant's flat in north London after Rosemarie Saunders had gone to the police, following the defendant’s assault upon her.
3. Rosemarie Saunders was another prostitute. On the night of 17th /18th February, the defendant had picked her up. He had taken her to his flat. The agreement between them was for "straight sex". When they arrived at his flat, the defendant asked for bondage. Saunders refused. The defendant then walked naked into the room, with a rope, one end of which he fashioned into a noose, which he put around her neck; he then trussed her up. He then sexually and physically abused her for several hours. He threatened to kill her. He threatened to hang her from a hook, which he placed in the door frame. He threatened to put her body in a black plastic bag and to dump it on Hampstead Heath. He gagged her. He pulled the noose tight so that Saunders lost consciousness for a while. He attempted to bugger her and submitted her to various other indignities. So terrified had she been that she became incontinent of faeces and urine. These outrages only ended when he fell asleep from tiredness and drink. She then escaped. She was, by then, hysterical. She raised the alarm. The rope marks on her body could clearly still be seen.
4. The offences upon Rosemary Sauders gave rise to convictions, after a trial, for offences of making threats to kill, assault with intent to commit buggery, indecent assault and assault occasioning actual bodily harm. For these offences, the trial judge imposed determinate sentences totalling seven years, to run concurrently with the life sentence. In my judgement any minimum term which the defendant is ordered to serve for the murder must take account of the scale of offending against Rosemary Saunders, otherwise he will escape punishment for these ‘bestial’ offences, as the trial judge vividly described them. To put it another way: the minimum term must reflect his overall criminality, that is to say the offences committed against both victims.
5. Following her complaint, the police went to the defendant’s flat to arrest him. He was arrested while still asleep in the chair, still drunk. When they searched the flat, they found Ann Petherick’s body. Because of the decomposition, no precise mechanism of death could be established but her facial bones had been driven in by 3 or 4 heavy blows; it is probable that she died from asphyxia consequential upon those injuries. She also had a broken bone in a foot and a bruise over one shoulder blade. Although it seems to me that the inference could readily have been drawn that she had been subjected to the same kind of sexual and sadistic indignities as was suffered by Rosemarie Saunders, the trial judge was unwilling so to conclude; he heard the evidence and it would be wrong for me to make any different finding.
6. It should be noted that the defendant had a previous conviction for manslaughter in 1984, when he received 5 years for stabbing a man to death with a sword. This is plainly an aggravating factor to be considered when fixing the minimum term. I might add that it is likely to be a highly relevant consideration when the Parole come to consider whether he can safely be released.
7. I have read the Victim Personal Statement of Mrs Petherick, Ann’s mother. She speaks with bitterness of the dark shadow which her daughter’s murder has cast over her life.
8. The defendant still maintains his innocence; he has shown no remorse. I have seen the reports on the defendant’s progress in prison. He has achieved considerable academic success. However, there is nothing in this case which is so exceptional as to justify a reduction in the minimum term otherwise appropriate. In short, I see no mitigating features whatsoever.
9. The defendant has requested an oral hearing. I have read the detailed submissions in writing made on his behalf (and indeed the manuscript observations which the defendant made at the time before the tariff was first set). I am unable to see that anything could be gained from further oral argument. I decline to hold such a hearing.
10. Section 276 and Schedule 22 of the Act ensure when a minimum term has been fixed by the Secretary of Sate, on a review the High Court can only confirm the term fixed or reduce it; it cannot increase a minimum term already fixed.
11. Before Lord Bingham CJ wrote his letter to the judges on 10 February 1997 (conveniently set out in paragraphs IV.49.18 – 21 of the Consolidated Criminal Practice Direction, as amended) there was no guidance as to how minimum should be set. In the absence of any other guidance, the best guide to practice is probably Lord Bingham’s letter, so which I have already referred, which suggested a starting point of 14 years.
12. This was a most terrible murder. The particularly aggravating factors here were the concealment of the body, his previous conviction for manslaughter and the subsequent offending against Rosemary Saunders. These plainly justify a substantial increase upon the starting point. I think that the minimum term fixed by the Secretary of State properly reflects the grave features of this case. Accordingly, I confirm the minimum term to be 20 years. Had this murder been committed now, I do not doubt that this sentence would be longer but I must loyally apply what I take to be the conventional tariff of the time.
13. I order, as I am required to do, that the term of 20 years is reduced by the period of 10 months and 6 days which he spent in custody before being sentenced.
14. I am anxious that this sentence is not misunderstood or mis-reported. The sentence is – and remains – a sentence of imprisonment for life. The defendant may not even be considered for release until he has served at least 20 years. That is not to say that he will then be released; indeed he will be detained unless and until the Parole Board is satisfied that he no longer resents a risk to the public. Even if the Parole Board decides then or at some time in the future to authorise his release, he will be upon licence which will extend for the rest of his life. It is as well that the public knows that many prisoners are in fact detained long after their tariff has expired.
From Daily Mail
Before me is a newspaper cutting with the headline: "Bestial killer jailed for 40 years for sex attacks." It is dated December 21, 1989, and tells of the gruesome murder of a 27-year-old woman by one Donald Mackay.
The killer was described by an Old Bailey judge as a grave danger to the public and, in particular, women. The injuries inflicted upon Ann Petherick were appalling. Her body was hidden for weeks in a cupboard and discovered only when another woman narrowly escaped a similar end after a vicious sexual assault.
Mackay had killed before, and the intention in passing one of the longest jail sentences seen for many years was that the 41-year-old should never be free to strike again.
The murder of Ann Petherick naturally devastated her parents. Their daughter had lived a wayward existence and during the trial there were suggestions of prostitution. But her parents loved her deeply, not least because they had already lost a Down's syndrome son at the age of nine.
The murder particularly affected her father. He retired from work as a civil engineer with ill health and died a year ago at the age of 66. Her mother Ida, for much of her life a nurse in Essex, now lives alone, still haunted by the terrible fate of her daughter.
Nevertheless, she believed that the length of the sentence handed down to Mackay meant she would never ever hear his name again.
That was until she recently received a letter from the probation service asking for a meeting to discuss the case. She agreed and was told that the murderer's sentence was due for a "lifer review". To her horror Mrs Petherick learned that this would take place in a few weeks' time.
I have seen a copy of the confidential document reporting on the meeting with Mrs Petherick. In it, the probation service's victim contact officer, Debbie Anderson, says Mrs Petherick was "shocked" when told that what she believed to be a 40-year sentence was in fact a 20-year tariff.
To her superiors, Ms Anderson acknowledges that time has not healed the mother's hurt. Whether she is fully aware of the distress this new development has caused or is simply adhering to a form of words she has learned from some manual, she uses bloodless language: "It is hoped by Mrs Petherick this offender is not released back into the community at the end of his tariff, if ever."
Limply, she opines that in the event of release being considered, her unit would "request" that Mackay is never permitted to make any attempt to contact or approach the family of the victim. This, while a laudable sentiment, is something of an insult to Mrs Petherick. A glance at the figures relating to crimes of violence shows the majority are committed by reoffenders who have been released without thought as to how they will roam free and cause further misery. Unsurprisingly, Mrs Petherick tells me the interview with the probation service has left her "devastated".
Nor do other areas of the judicial system come out of this episode with much credit. The Home Office Minister responsible for sentencing, Fiona Mactaggart, has explained to Mrs Petherick that, while in open court the judge deemed the crimes worth 40 years, this represented his assessment of future risk. In fact, the tariff he recommended to the Home Secretary after the trial was nearer half this amount.
Hence this dreadful killer's sentence is now due for review. If, as the Minister puts it, he is thought to have made "sufficient progress", he could be transferred to an open prison and be released when the tariff expires early in 2009.
One must question why, after such a high-profile public trial, the sentence was then reduced so drastically in private. At the time, the public were led to believe that this man would never be seen on our streets again. Yet, behind closed doors, the most senior political and judicial figures decided otherwise.
One must ask how many other times such a sleight of judicial hand has been practised in this way. How many other victims or relatives will receive, or have received, similar news?
The decision to keep all this a secret for so long is scandalous. No one was told that the killer of Ann Petherick had, in effect, had his sentence halved. No one at the time of this crime thought about the loved ones of the victim. No one bothered to pick up the telephone and explain to Mrs Petherick that justice as promised in 1989 would not be done.
Only when Debbie Anderson from the probation service popped around did a mother realise that no one had told her the truth. That the "bestial" killer of her beloved daughter could be freed. It is a shameful story.
