Fletcher, R. v

In sentencing for manslaughter following the violent shaking of a young child, the court must give proper weight to all mitigating features, including the absence of prior violence or animosity, the lack of premeditation, the offender’s age and limited intellectual ability, and prompt efforts to obtain help. A failure to plead guilty, particularly where a murder charge was maintained until the close of the prosecution case, does not itself show an absence of remorse. A sentence is manifestly excessive where it does not fairly reflect those features, despite the grave harm caused by the offence.

The appellant was convicted by a jury of manslaughter after shaking to death his two-year-old partner’s child. He had initially been charged with murder, but Owen J ruled at the close of the prosecution case that there was insufficient evidence of murderous intent.

In July 2005, Owen J sentenced the 23-year-old appellant to seven years’ imprisonment. The appellant challenged that sentence as manifestly excessive. The central issue was the proper weight to be given to the grave consequences of the offence and to the substantial mitigating circumstances.

1. Appeal allowed. The sentence of seven years’ imprisonment was manifestly excessive. It was replaced by a sentence of five years’ imprisonment.
2. The offence was grave. The deceased was two years old and required protection, and her death had a devastating and continuing effect upon her family.
3. However, the sentencing assessment had to reflect substantial mitigation. The appellant had shown no previous animosity or violence towards the child or her siblings. There was positive evidence that he had cared for and supported them. The killing was unpremeditated and occurred during a very short loss of temper.
4. The court also gave weight to the appellant’s youth, lack of previous offending of this kind, borderline learning disability, and his immediate attempt to obtain help after causing the injury.
5. The appellant’s failure to plead guilty did not demonstrate a lack of remorse. He had faced a murder charge until immediately before he was due to give evidence. The court accepted that it would then have been difficult for him to abandon his earlier denial of responsibility.
6. Yates [2001] Cr App R (S) 428 provided useful comparative guidance. Having regard to that authority and to the mitigating features, five years’ imprisonment was the appropriate sentence.

• Court of Appeal (Criminal Division): allowed the appeal against sentence and substituted five years’ imprisonment for the sentence of seven years.
• Crown Court: following a jury conviction for manslaughter, Owen J sentenced the appellant in July 2005 to seven years’ imprisonment. The murder count had been withdrawn from the jury after the judge ruled that there was insufficient evidence of murderous intent.