Sheard v R

On an Attorney-General reference for an unduly lenient sentence, an appellate court should not increase sentence by confidently resolving disputed sentencing facts against an offender where a Newton hearing proceeded without oral witnesses. The court must account for the possibility that tested evidence might have supported either side and for the offender’s lost opportunity to give evidence or call witnesses. It would be unfair to impose a harsher sentence where the factual basis cannot now safely be reconsidered on that incomplete process.

Jordan Sheard pleaded guilty to manslaughter after setting the victim alight with a cigarette lighter during a party. The victim died from extensive burns.

At a Newton hearing before the Crown Court sitting at Sheffield, the parties agreed that factual disputes would be resolved on the papers. The judge was not sure that Sheard had subjected a vulnerable victim to cruel bullying, or that he had not been encouraged by others to use the lighter. He sentenced Sheard to three and a half years’ detention in a young offender institution.

The Attorney General sought leave to refer the sentence as unduly lenient. The central issue was whether the Court of Appeal could properly substitute adverse findings on the disputed Newton issues and increase the sentence.

1. Leave was granted, but the reference was dismissed. The court declined to interfere with the sentence of three and a half years’ detention in a young offender institution.
2. The Attorney General’s case was that the sentencing judge had understated the victim’s vulnerability, the progression from horseplay to bullying, the danger inherent in applying flame to oil on skin, and the seriousness of the consequences. The court accepted that oral evidence at the Newton hearing might have affected the factual findings and, in turn, the assessment of the proper loss of liberty.
3. However, the hearing had proceeded without witnesses by agreement of the parties. The Crown accepted responsibility for the failure to call evidence. Although the judge had been surprised by that course and might, on careful examination of the papers, have reconsidered it, the Court of Appeal could not now safely reach a confident conclusion on facts that had not been tested.
4. Oral evidence might have supported the Attorney General’s contention, but it might equally have reinforced the judge’s findings or produced a more sympathetic sentencing outcome. A finding that the sentence was unduly lenient would require the court to make findings adverse to Sheard on the Newton issues. That would unfairly deprive him of the opportunity to present oral evidence in mitigation or explanation.
5. Accordingly, despite the court’s concern about the incomplete factual process, it was neither fair nor right to penalise Sheard by increasing the sentence under CJA 1988, S36.

• Court of Appeal (Criminal Division): In [2013] EWCA Crim 1161, granted the Attorney General leave to refer the sentence but declined to interfere with it.
• Crown Court sitting at Sheffield: On 21 March 2013, following a guilty plea to manslaughter and a Newton hearing conducted on the papers, sentenced Sheard to three and a half years’ detention in a young offender institution.