Owen, R v

Where a victim dies years after an assault for which the offender has already been sentenced, an immediate custodial sentence for manslaughter may properly be imposed. Rehabilitation during the intervening period does not require suspension of a proper sentence. Custody may be necessary to mark the victim’s death and punish the killing, particularly where the offender was warned at the earlier sentencing that a further sentence could follow if the victim died.

The appellant had received three years’ imprisonment in 2001 after pleading guilty to a section 20 offence arising from a violent assault on an infant. The injuries caused profound and permanent disability.

The child died in 2007 from pneumonia secondary to cerebral palsy caused by the non-accidental head injury. The appellant pleaded guilty to manslaughter at Mold Crown Court and, on 23 January 2009, received one year’s immediate imprisonment.

He accepted that the term was not excessive. His appeal was confined to the judge’s refusal to suspend it, relying on the long interval since his earlier release and his subsequent rehabilitation.

1. Appeal dismissed. The sentencing judge was entitled to impose one year’s immediate imprisonment for manslaughter and was not obliged to suspend it.

2. The appellant accepted that, had the child died when the injuries were inflicted, a total sentence of four to five years’ imprisonment for manslaughter would have been appropriate. Since he had already served three years for the section 20 offence, the additional year did not make the overall punishment excessive.

3. The interval between the earlier sentence and the manslaughter sentence, and the appellant’s largely blameless and rehabilitative conduct during it, did not remove the proper penal purpose of immediate custody. The further sentence marked the child’s death and punished the appellant for killing her, as well as for the suffering and loss of quality of life caused by his assault.

4. The appellant had been expressly warned at the earlier sentencing that he might be returned to prison if the child died from her injuries. He therefore could not properly regard imprisonment as definitively behind him. There was accordingly no error of principle in the immediate custodial sentence.

• Court of Appeal (Criminal Division) — dismissed the appeal against the refusal to suspend the one-year sentence: [2009] EWCA Crim 702.
• Mold Crown Court — following a guilty plea to manslaughter, imposed one year’s immediate imprisonment on 23 January 2009.
• Earlier sentencing — in 2001, following a guilty plea to a section 20 offence arising from the same assault, the appellant received three years’ imprisonment and was warned that further imprisonment might follow if the child died.