Harvey, R. v

In sentencing for unlawful act manslaughter, the court must assess both the offender’s culpability and the harm actually caused, as required by section 143(1) of the Criminal Justice Act 2003. Death is the gravest harm, but the sentence must still reflect the culpability of the unlawful violence.

Where trivial violence causes death because of an exceptional and unforeseeable physical vulnerability, the disparity between culpability and harm may justify a substantial reduction from an otherwise appropriate custodial sentence. The assessment remains fact-specific. Previous violence, intoxication and the circumstances of the assault remain relevant aggravating features.

The appellant pleaded guilty at the Central Criminal Court to unlawful act manslaughter after throwing a television remote control towards his wife during a domestic argument. It struck an exceptionally vulnerable point behind her ear. A trivial injury caused a fatal dissection of her vertebral artery.

He immediately called an ambulance, candidly explained what had happened, attempted resuscitation, showed genuine remorse and pleaded guilty at the first opportunity. He had relevant previous convictions for violence. The sentencing judge imposed three years’ imprisonment and directed that 155 days count towards sentence under section 240 of the Criminal Justice Act 2003.

By leave of the single judge, he appealed against sentence. The central issue was whether the exceptional mismatch between the minor unlawful violence and the fatal result made three years excessive.

1. The appeal was allowed in part. The sentence of three years’ imprisonment was excessive on the singular facts and was reduced to 21 months. The direction that 155 days count towards sentence was left unchanged.

2. For unlawful act manslaughter, sentencing requires an assessment of culpability and harm. Under section 143(1) of the Criminal Justice Act 2003, the court must take account of the harm caused, intended or foreseeably caused. The fact that death has resulted is necessarily grave, but the length of sentence must reflect the offender’s culpability where there is a marked disparity between culpability and outcome.

3. The court treated the victim’s exceptional vulnerability as highly material. The unchallenged medical evidence showed that trivial trauma at the precise point of impact could have caused death, and even an ordinary movement of her head could have been fatal. The assault was nevertheless an unnecessary and dangerous act of domestic violence. It was not an understandable reaction of the kind considered in R v Appleby [2009] EWCA Crim 2693.

4. The appellant’s drinking, cocaine use and previous violent convictions remained aggravating features. They distinguished his position from that in R v Furby [2005] EWCA Crim 3147, but did not justify a three-year sentence when weighed with the extraordinary medical coincidence, immediate attempts to obtain help, remorse and early guilty plea.

5. On the custody-credit issue, the evidence established 139 days in custody. The electronic curfew was for eight hours rather than the qualifying nine hours. No error by the sentencing judge requiring appellate correction was shown.

• Court of Appeal (Criminal Division) — allowed the sentence appeal to the limited extent of substituting 21 months’ imprisonment: [2010] EWCA Crim 1317.
• Central Criminal Court — following a guilty plea to manslaughter, imposed three years’ imprisonment and ordered 155 days to count towards sentence.