Thornley, R. v

A definitive sentencing guideline must be applied, but it is not exhaustive or insulated from later developments. Under section 125 of the Coroners and Justice Act 2009, the interests of justice permit account to be taken of subsequent sentencing decisions of the Court of Appeal and relevant legislative change.

In manslaughter by provocation, use of a knife may carry greater aggravating weight than when earlier guidance was issued. The weight depends on why and how the knife was acquired and used, and on all the individual circumstances. A sentence within a guideline range may properly reflect those developments.

The appellant pleaded guilty in the Crown Court at Teesside to manslaughter by reason of provocation after the Crown accepted that plea. He had been indicted for murder, but the jury at his earlier trial had been unable to reach a verdict. He was sentenced to 16 years’ imprisonment.

During an escalating dispute at his home, the appellant armed himself with a knife and deliberately inflicted two fatal wounds on an unarmed neighbour. The deceased had returned angrily to the appellant’s home and had taken hold of him by the throat. The appellant appealed against sentence, contending that the judge should have applied the definitive guideline for manslaughter by provocation to the exclusion of later sentencing and legislative developments.

1. Appeal allowed. The sentence of 16 years’ imprisonment was excessive. It was replaced with a sentence of 12 years’ imprisonment.

2. Section 125 of the Coroners and Justice Act 2009 did not require the sentencing judge to focus exclusively on the Sentencing Guidelines Council’s definitive guideline. The statutory interests-of-justice consideration permitted account to be taken of later Court of Appeal sentencing decisions and of relevant legislative developments.

3. The authority of the Court of Appeal on sentencing policy was not reduced by the issue of guidelines. Parliament would have needed clear and unequivocal language to achieve that result. Guidelines were neither rigid rules nor insulated from subsequent developments.

4. Although Schedule 21 to the Criminal Justice Act 2003 did not directly govern manslaughter, its aggravating and mitigating features could assist in sentencing homicide generally. The subsequent statutory emphasis on murder committed with a knife also meant that knife use in provocation manslaughter should be treated as a more significant aggravating feature than when the 2005 guideline was published.

5. The guideline’s starting point of 12 years and range of 10 years to life imprisonment allowed proper allowance for those developments. The relevant inquiry remained fact-sensitive, including why and how the offender acquired and used the knife.

6. R v Douglas [2007] 1 Cr App R(S) 334 was not a comparable sentencing authority because its offender had first been attacked with both a gun and a knife. Here, the appellant deliberately armed himself and subsequently sought to conceal his responsibility. Nevertheless, insufficient allowance had been made for the deceased’s angry return, the danger to the appellant’s wife, and the deceased’s physical assault on the appellant. The violence was wildly excessive and was not self-defence, but those matters justified reduction to 12 years.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence and substituted 12 years’ imprisonment: [2011] EWCA Crim 153.
• Crown Court at Teesside: Following a guilty plea to manslaughter by reason of provocation, sentenced the appellant to 16 years’ imprisonment on 13 October 2010.