Attorney General's Reference No. 125 of 2010

In unlawful act manslaughter, the fact that an act of violence caused death must receive greater weight in sentencing, even where the offender intended neither death nor really serious harm. That approach applies equally to the manslaughter of babies and children in the home and to public violence. It does not permit manslaughter to be sentenced as murder. Earlier sentencing authorities which pre-date the modern approach have no significant continuing weight. A sentence in another case remains fact-specific and is not a guideline. The sentencer must assess the particular aggravating and mitigating features.

The offender pleaded guilty at the Crown Court at Truro to the manslaughter of his four-month-old son. While caring for the child, he lost his temper and forcefully shook and/or threw him, causing fatal brain injuries. The Crown Court imposed three and a half years’ imprisonment.

The Attorney General referred the sentence under section 36 of the Criminal Justice Act 1988, contending that it was unduly lenient. The central issue was whether the sentencing approach in R v Wood [2009] EWCA Crim 651 and R v Appleby [2009] EWCA Crim 2693 applied to the manslaughter of a child in the home, and whether the particular sentence should be increased.

1. The court granted leave for the Attorney General’s reference and held that the sentence of three and a half years’ imprisonment was unduly lenient. It increased the sentence to five years’ imprisonment.

2. The approach in R v Wood [2009] EWCA Crim 651 and R v Appleby [2009] EWCA Crim 2693 required greater sentencing weight to be given to the fact that unlawful violence caused death. The principle applied where the victim was a baby or child in a private home, as well as where manslaughter arose from public disorder. Manslaughter nevertheless had to be sentenced as manslaughter, not as murder.

3. The sentencing judge had erred by treating Appleby as inapplicable because its facts concerned street violence. The factual setting differed, but the governing sentencing approach was common to all manslaughter cases. Earlier sentencing authorities considered by the judge no longer had significant continuing weight.

4. R v Burridge [2010] EWCA Crim 2847 correctly confirmed that the Wood and Appleby approach extended to unlawful act manslaughter of babies and children. Its sentence was not, however, a guideline. It was a fact-specific indication of how the principle might operate, and material differences in aggravation and mitigation had to be respected.

5. The offender’s good character, genuine remorse and full credit for his guilty plea were material mitigation. They did not outweigh the aggravating features: an unjustified loss of temper, a recent warning of the child’s fragility, and repeated false accounts of the incident. The court therefore substituted the increased sentence.

• Court of Appeal (Criminal Division)—on an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, held the Crown Court sentence unduly lenient and increased it to five years’ imprisonment.
• Crown Court at Truro—on 29 November 2010, following a guilty plea to manslaughter, imposed three and a half years’ imprisonment.