Manslaughter Sentencing: competing considerations

Practitioners will find useful the Court of Appeal’s recent consideration of the Manslaughter Definitive Guidelines in a case in which, as the court noted, there were “complicated and competing” considerations.

By way of background, the definitive guidelines were drawn up for serious and difficult manslaughter cases and because of the significant variation in cases. The guidelines came into effect in November 2018. The Sentencing Council said the fact such cases do not come before individual judges very frequently, means the guidelines will be particularly useful in promoting consistency in sentencing - and transparency as to how sentencing decisions are reached.

What happened?
In R v Harris [2019] EWCA Crim 2008, the appellant (A) was convicted of the manslaughter of her partner who had died hours after she stabbed him. The trial judge sentenced her to eight years’ imprisonment.

The pair had been living together although the relationship was, for all accounts, volatile with a number of domestic incidences to which the police were called at least 14 times.

One Saturday in February 2018, they visited various bars and later met up with others who all went back to their house. All were drunk. A left the party and went to bed. Around 4.30am she saw her partner outside in/near the hot tub in his boxer shorts and other guests were either naked or partially dressed. She went out and confronted him.

An argument ensued and when they were in the bedroom, P attacked A. She said she defended herself by reaching for a knife P apparently kept handy in their bedroom for personal protection. She stabbed him twice and he died later in hospital.

Sentencing issues
It’s worth noting, at this point, that the Court of Appeal said the sentencing exercise carried out by the judge was sensitive and complicated with competing considerations.

The judge had considered the Manslaughter Definitive Guidelines which had only been implemented a month earlier, and he had expressed the need “to avoid a mechanistic application of them”. He then reflected on the difficulty in determining A’s level of culpability.

Taking the guidelines into account, he took the view that the fact that death was caused in the course of an unlawful act which carried a high risk of death or really serious injury which was, or should have been, obvious to the offender put the offence potentially within culpability B.

He then noted that culpability D reflected incidents where death was caused during the course of an unlawful act committed in defence of self or others, but not such as to amount to a defence.

On balance, he then noted that “between B and D is C” and that the particular factors referenced for that category in the guideline did not apply in this case. Therefore, he rejected the submission that he should sentence as if this was a case of excessive self-defence (ie. a category D case) and concluded there must be a sentence of immediate imprisonment.

Furthermore, he said the one statutory aggravating factor was the use of the knife as a weapon. He said the starting point for a category C offence was six years (with a range of 3-9 years), while for category B the starting point was 12 years (with a range of 8-16 years). He passed a sentence on A of eight years.

The appeal
A appealed saying the sentence was manifestly excessive because the sentencing judge was wrong in failing to identify in which category the offence should be placed within the definitive guidelines on manslaughter; and he was also wrong in appearing to select category C for culpability.

The Court of Appeal concluded that the judge had been wrong to take the approach that this was a category B case (to be adjusted for category D elements), taking into account the use of a knife. It was wrong in principle to count the use of the knife as an aggravating factor because this was contrary to the express warning in the definitive guideline.

That warning states:

"Having determined the category at step one, the court should use the corresponding starting point to reach a

sentence within the category range below. The starting point applies to all offenders irrespective of plea

or previous convictions.

Where a case does not fall squarely within a category, adjustment from the starting point may be required before adjustment for aggravating or mitigating features."

It also states, relation to the list of aggravating factors: “Care should be taken to avoid double counting factors already taken into account in assessing culpability.”

Correct approach
In his judgment, Cockerill J pointed out that the guidelines acknowledge the possibility of situations which will encompass factors within more than one category; and provides guidance as to the correct approach in such cases.

He made clear that the judge’s conclusions and reasoning were carefully considered but the sentence he imposed was too long. He appeared not to reach a conclusion on category and starting point before considering aggravating and mitigating factors, as the guidelines indicate is the right approach.

The correct approach was that once having reached the starting point of eight years before any aggravating and mitigating factors, to then add no aggravating factors – and simply reduce the figure by two years to reflect the mitigation accepted. A’s sentence of 8 years was therefore reduced to 6 years.

Cockerill J made this observation: “As the authors of the Guideline have anticipated – complex considerations may arise in cases where more than one category is engaged. One approach may be for a sentencer to conduct something of an iterative exercise in this sense; if two categories are engaged, logically the appropriate sentence should be capable of being reached either from the starting point of adjusting downwards from the higher category or adjusting upwards from the lower category.”

He said it may be preferable for sentencers to balance the competing considerations in terms of an overall culpability band; make plain the band from which they are starting; and then weigh aggravation and mitigation from that starting point.

In this case (as the judge noted and the appeal court concluded) the appropriate overall band, reflecting a fair assessment of culpability, was category C. A starting point of six years in Category C (intending some harm, but without counting the knife) “allows for upwards adjustment for the knife and downwards adjustment for mitigation”.



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