Attorney-General's Reference No 64 & 65 Of 2009

On an Attorney General’s reference, the Court of Appeal will not increase a sentence merely because it is lenient. Intervention is justified only where the sentence falls outside the permissible range and involves gross error.

Sentencing remains an individual assessment. A court may properly give substantial mitigation for an offender’s positive good character, genuine remorse, and exceptional personal circumstances, while recognising the gravity of drunken violence causing death. A deliberately merciful sentence is lawful if it remains within the proper range.

Two young defendants were convicted of manslaughter after, during a drunken confrontation following a Nepalese New Year celebration, they and others put the deceased over an embankment into the River Thames. He drowned. Each received three years’ custody.

The Attorney General obtained leave to refer the sentences under Criminal Justice Act 1988, section 36. The reference contended that the sentences were unduly lenient. The defendants had not initiated the altercation; one had suffered a serious bottle injury, and both had previous good character and profound remorse.

The central issue was whether the sentencing judge’s merciful approach placed the three-year terms outside the permissible range.

1. The court gave leave for the reference but declined to interfere with the three-year sentences. They were lenient, but not unduly lenient in the sense required for appellate intervention.

2. Under section 36 of the Criminal Justice Act 1988, the court intervenes only where a sentence is not merely lenient but outside the range of proper sentencing decisions and involves gross error. The trial judge’s task is to balance the gravity of the offence against the particular mitigation available to the offenders.

3. The court rejected close comparison with single-punch manslaughters. The decisive conduct was the obviously dangerous act of putting an unresisting and incapacitated person into a major river. It also distinguished Attorney General’s Reference Nos 27 and 28 of 2008 (Lewis and Walker), [2009] 1 Cr.App.R (S) 87, which involved a planned revenge attack, sustained violence and prevention of the victim’s escape.

4. The killing was an instant, unjustified retaliation marked by recklessness, rather than a planned revenge attack or an intention to cause harm. The defendants’ failure to help the deceased aggravated the offending. Conversely, the judge could properly treat as substantial mitigation that the defendants had not started the confrontation, that Thakali had suffered a serious injury, and that both defendants had exceptional good character, genuine remorse and had already suffered serious personal consequences.

5. Some judges might have imposed four or five years, but the sentencing judge had heard the trial and his deliberately merciful assessment remained within the available range. In Thakali’s case alone, the court allowed a technical appeal to substitute detention in a young offender institution for custody because he was under 21 when convicted. The term remained unchanged.

• Court of Appeal (Criminal Division): On the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court declined to increase the three-year sentences. It allowed a technical appeal in Thakali’s case only to correct the form of sentence.

• Trial court: The defendants were convicted of manslaughter and each received three years’ custody. The trial court and any citation for its decision were not stated in the judgment.