Banaszek v R.

For sentencing manslaughter by provocation, the gravity of the provocation must be assessed on the factual basis of the jury’s verdict. A genuine belief that the deceased had committed a grave sexual assault, followed by confirmation and belittlement of it, could amount to substantial rather than low provocation despite an intervening period.

A conviction for manslaughter by provocation does not prevent an offender from being dangerous. Dangerousness remains to be assessed under section 229 of the Criminal Justice Act 2003, by reference to all relevant material, including overseas convictions, the circumstances of the offence and risk evidence.

The appellant was convicted at the Central Criminal Court of manslaughter, having been indicted for murder. The jury accepted provocation. He had killed the deceased during a sustained knife attack after believing that the deceased had sexually assaulted him and then referred to that assault while touching him.

The sentencing judge imposed imprisonment for public protection under section 225 of the Criminal Justice Act 2003, with a six-year minimum term. The appellant challenged findings about his preparation for the confrontation, remorse and the level of provocation. He also contended that a person who killed under provocation could not be a dangerous offender.

1. The appeal was allowed in part. The sentence of imprisonment for public protection was upheld, but the minimum term was reduced from six years to four and a half years, less time spent on remand.

2. The Court rejected the contention that the sentencing judge had impermissibly departed from the jury’s verdict by finding that the appellant went to the squat intending to confront the deceased. An intention to confront a person did not entail an intention to kill or cause serious injury. The jury could consistently have accepted that the appellant lost self-control only when the deceased spoke and acted as alleged.

3. The Court did not interfere with the judge’s assessment of remorse. The judge had seen and heard the appellant, and the appellant’s conduct immediately after the attack was capable of supporting the finding.

4. The judge had, however, erred in categorising the provocation as low. On the jury’s factual basis, the appellant genuinely believed that the deceased had raped him and that, on the night of the killing, the deceased confirmed and belittled that assault. That was substantial provocation, notwithstanding the time that had passed. The error made the notional determinate sentence excessive. Applying the Sentencing Guidelines Council guideline, and allowing for the knives, ferocity of the attack and subsequent conduct, the appropriate determinate sentence was nine years.

5. A person who kills under provocation may nevertheless be dangerous. Dangerousness fell to be determined under section 229 of the Criminal Justice Act 2003. The facts of the killing, the appellant’s conduct afterwards, his convictions in Poland and the pre-sentence report provided compelling support for the finding of significant risk of serious harm.

• Court of Appeal (Criminal Division) — allowed the sentence appeal only to reduce the minimum term, while upholding imprisonment for public protection ([2010] EWCA Crim 1076).
• Central Criminal Court — convicted the appellant of manslaughter on 11 March 2009 and, on 4 June 2009, imposed imprisonment for public protection under section 225 of the Criminal Justice Act 2003, with a six-year minimum term less 321 days on remand.