Attorney General Reference No 90 & 91 of 2006

Sentencing for unlawful-act manslaughter committed during a burglary must reflect the criminal venture and the totality of associated offending. It must not, however, be equated with the statutory murder tariff, because the absence of an intention to kill or cause really serious harm remains a critical sentencing feature.

A sentencing judge’s assessment of dangerousness may be disturbed where it is clearly wrong. Extreme violence during acquisitive offending can establish a significant risk of serious harm despite a prior record predominantly of dishonesty. Full guilty-plea credit is not justified where responsibility was not accepted at the first reasonable opportunity.

The Attorney-General obtained leave under section 36 of the Criminal Justice Act 1988 to refer sentences imposed by the Recorder of Bristol on 11 August 2006 as unduly lenient.

Botchett and Richards had pleaded guilty to manslaughter arising from a fatal attack on Hart after both had entered premises during a burglary venture. Botchett also pleaded guilty to grievous bodily harm inflicted on Jordan, theft, attempted burglary and burglary. Richards pleaded guilty to attempted burglary and burglary. Botchett received a concurrent five years and four months for manslaughter, while Richards received a concurrent four years.

The central questions were the proper sentencing range, whether Botchett was dangerous so that imprisonment for public protection was required, and the proper credit for the late guilty pleas.

1. The reference was allowed. The sentences were unduly lenient and were increased.

2. The court accepted that the manslaughter occurred in the course of a criminal venture and that this materially aggravated its seriousness. Schedule 20 to the Criminal Justice Act 2003, which identifies a 30-year starting point for murder committed in the course of burglary, supported the need to reflect that context. It did not justify equating manslaughter with murder. The absence of an intention to kill or cause really serious harm remained a critical feature. The court treated a sentence of 10 to 12 years before plea credit as appropriate for Botchett’s manslaughter, and 12 years before credit for his offending taken as a whole.

3. The Recorder’s conclusion that Botchett was not dangerous was clearly wrong. Although his previous specified offences had not involved serious violence, the present attacks were extreme and savage. In light of that violence and his burglary record, he posed a significant risk of serious harm through future specified offences. The statutory presumption was not displaced. Botchett was therefore sentenced to imprisonment for public protection, based on a notional determinate term of 10 years after reduced plea credit, with a five-year period before parole consideration less time already served. A two-year extended sentence, with an extension period of one day, was imposed for grievous bodily harm and ran concurrently.

4. A full one-third plea reduction was inappropriate. Neither offender accepted presence and responsibility until a late defence statement, after missed time limits. Botchett’s other concurrent sentences were left undisturbed.

5. Richards had a materially lower personal responsibility because he did not take part in the violence. His presence, inaction and participation in the criminal venture nonetheless required a substantial deterrent sentence. His manslaughter sentence was increased to six years’ imprisonment, with the burglary sentences unchanged and concurrent.

• Court of Appeal (Criminal Division): Leave was granted on the Attorney-General’s reference under section 36 of the Criminal Justice Act 1988. The court found the sentences unduly lenient and increased them, including by imposing imprisonment for public protection on Botchett.
• Crown Court at Bristol: On 11 August 2006, the Recorder imposed concurrent determinate sentences, including five years and four months’ imprisonment for Botchett’s manslaughter and four years’ imprisonment for Richards’s manslaughter.