Nicholles, R v

In sentencing for unlawful act manslaughter involving a knife, the court must apply the modern, more severe approach which gives substantial weight to the death caused, the public-safety risk created by carrying weapons, and current statutory sentencing policy. Earlier guidance which predates the approach identified in R v Appleby and Others [2009] EWCA Crim 2693 does not provide current guidance on sentence level.

High culpability may arise where an offender unlawfully carries a lethal knife, chooses to use it in a confrontation, and exposes an unarmed person to an obvious risk of serious injury. The absence of premeditation or an anticipated confrontation remains relevant, but does not remove that culpability.

The Solicitor General sought leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient a nine-year sentence for manslaughter imposed at the Crown Court at Southwark.

The offender had been acquitted of murder after relying on self-defence, but was convicted of manslaughter on the basis that he lacked an intention to kill or cause serious bodily harm. During an unanticipated confrontation, a knife which he had been carrying fell from his pocket. He picked it up and inflicted a fatal neck wound on an unarmed man.

The issue was whether the sentence properly reflected the current sentencing approach to knife-related unlawful act manslaughter and the offender’s culpability.

1. The court granted leave, allowed the Attorney General’s Reference, and substituted a sentence of 14 years’ imprisonment for the nine-year sentence.

2. R v Appleby and Others [2009] EWCA Crim 2693 established a materially changed approach to unlawful act manslaughter. Sentencing must give greater weight to the harm caused under section 143 of the Criminal Justice Act 2003, the murder sentencing regime in Schedule 21, and the need for stern sentences where knives or weapons are carried. Earlier sentencing authorities, including R v Carter [2003] EWCA Crim 707, were not current guidance on sentence level.

3. The offender’s case lay between planned weapon-carrying for an anticipated confrontation and the spontaneous use of a knife picked up during an argument. He had not expected a confrontation, but he unlawfully carried a lethal knife, chose to retrieve and use it, and knew that the victim was unarmed. Those facts created an obvious risk of serious injury and justified the judge’s characterisation of high culpability.

4. The court also treated the offender’s serious record for violence and weapons, his aggression in starting the confrontation, the public setting, and his departure and disposal of evidence as aggravating. There was no guilty-plea credit or remorse. Although the offence was not premeditated, that mitigation could not justify the sentence imposed.

5. Nine years was not merely lenient but unduly lenient. The least appropriate term was 14 years’ imprisonment.

• Court of Appeal (Criminal Division) Granted leave under section 36 of the Criminal Justice Act 1988, allowed the Attorney General’s Reference, and substituted a 14-year sentence for manslaughter.
• Crown Court at Southwark On 24 April 2015, sentenced the offender to nine years’ imprisonment for manslaughter after his acquittal of murder.