King, R. v

Following a jury trial, the sentencing judge must sentence on the only factual interpretation consistent with the verdict if there is one. If several interpretations are possible, the judge must determine the factual basis to the criminal standard. Only where the judge cannot make a positive finding to that standard must sentence proceed on the interpretation, or relevant part of it, most favourable to the defendant.

The former Stosiek approach is not a freestanding qualification to that rule. Appellate intervention in factual findings is unwarranted where the judge applied the criminal standard and the evidence permitted a properly directed jury to reach the findings.

The appellant was acquitted of murder but convicted by a jury of manslaughter after fatally stabbing a man during a dispute at garage premises. The sentencing judge found that the appellant had acted in anger after the deceased produced a multi-tool, rather than in self-defence, and imposed twelve years’ imprisonment less time already credited.

The appellant appealed against sentence. He challenged the judge’s factual findings and contended that, where several factual accounts were consistent with the verdict, the judge had to adopt the account most favourable to him. He also submitted that the sentence was manifestly excessive.

1. Appeal dismissed. The judge was entitled to make the challenged findings of fact, and the twelve-year sentence was within the appropriate range for this manslaughter.

2. The proper approach to a factual basis for sentence after a jury trial is as follows. If the verdict has only one possible interpretation, the judge must sentence on that basis. If it permits more than one interpretation, the judge must decide the factual basis to the criminal standard. If the judge cannot be sure of any interpretation, basic fairness requires sentence on the basis, wholly or in the relevant part, most favourable to the defendant.

3. The line of authority beginning with Stosiek 4 Cr.App.R. (S.) 205 is subsumed within that approach. It does not create a separate rule requiring the defendant-favourable basis merely because alternative positive cases were advanced at trial. The court approved the explanation in Bertram [2004] 1 Cr.App.R. (S.) 27.

4. The trial judge had recognised that he had to determine the factual basis. His sentencing remarks showed careful identification of matters that were uncertain and matters of which he was satisfied. He was properly taken to have applied the criminal standard. There was evidence upon which a properly directed jury could have made each disputed finding, so this court would not interfere.

5. On those findings, the judge had properly balanced the aggravating and mitigating features. The use of severe force with a kitchen knife, despite the absence of premeditation and the available mitigation, justified the sentence imposed.

• Court of Appeal (Criminal Division) — in [2017] EWCA Crim 128, dismissed the appeal against sentence.
• Central Criminal Court — the jury acquitted the appellant of murder but convicted him of manslaughter; HHJ Morris QC sentenced him to twelve years’ imprisonment less 140 days.