Attorney General's Reference No 49 of 2004

For manslaughter following a guilty plea accepted on the basis of no intent to kill or cause serious injury, about five years’ imprisonment will often be an appropriate starting point where no weapon was used. Serious aggravating features, including a violent sexual assault and disputed facts which reduce credit for the plea, require a materially longer commensurate term.

Under section 80(2)(b) of the Powers of Criminal Courts (Sentencing) Act 2000, the court must impose a longer term where necessary to protect the public from serious harm. Persistent violent offending may establish that necessity, notwithstanding differences between earlier victims and the present victim.

The offender pleaded guilty at Liverpool Crown Court to manslaughter on an indictment for murder. The plea was accepted because he lacked intent to kill or cause grievous bodily harm. Following a Newton hearing, the judge found that the offender had caused the victim’s death by chest compression and had inflicted a non-consensual anal injury. He imposed six years’ imprisonment and ordered 137 days of an earlier sentence to be served consecutively.

The Attorney General referred the sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient. The reference raised whether the commensurate sentence adequately reflected the sexual assault and the offender’s record of violence, and whether a longer public-protection term was required under section 80(2)(b) of the Powers of Criminal Courts (Sentencing) Act 2000.

1. The court granted leave, treated the application as the hearing of the reference, and held that the six-year sentence was unduly lenient. It quashed that sentence and substituted nine years’ imprisonment.

2. Although sentencing authorities were necessarily of limited assistance because manslaughter cases vary widely, Silver 15 Cr App R(S) 836 indicated that five years would often be appropriate after a guilty plea to no-intent manslaughter where no weapon was used. That approach was consistent with Tzambazles [1997] 1 Cr App R(S) 87. The absence of intent to kill or cause serious injury, and ordinary guilty-plea credit, explained that starting point.

3. Aggravating circumstances normally require a higher sentence, and disputes over important facts reduce credit for a plea. Here the offender had disputed the manner of death. More significantly, the forceful, non-consensual penetration causing pain and humiliation was a grave aggravating feature. The sentence also had to reflect violence not causally connected with death. A commensurate sentence at first instance should therefore have been between seven and eight years.

4. Section 80(2)(b) of the Powers of Criminal Courts (Sentencing) Act 2000 required a longer-than-commensurate term if necessary to protect the public from serious harm. Manslaughter was a qualifying violent offence. The offender’s repeated convictions for violent offences showed an inability to control violent instincts, particularly when drinking. The distinction that earlier victims had been male did not lessen the risk to members of the public. A ten-year sentence would initially have been necessary for public protection.

5. Making due allowance for double jeopardy on an Attorney General’s reference, the court substituted nine years. Since that term was imposed for public protection, it also quashed the 137-day return-to-prison order made under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000.

• Court of Appeal (Criminal Division) On the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court quashed the six-year sentence and substituted nine years’ imprisonment.
• Liverpool Crown Court The offender pleaded guilty to manslaughter and, after a Newton hearing, was sentenced to six years’ imprisonment plus 137 consecutive days under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000.