Bola, R. v

When sentencing for unlawful act manslaughter under the Manslaughter Definitive Guideline, a court must establish any culpability feature relied upon to the criminal standard. A merely arguable allegation that the death occurred in the course of a serious offence cannot justify escalation to Category A. The guideline must be applied evaluatively, rather than by counting features mechanically. A combination of Category B features may, but does not necessarily, amount to very high culpability. A court must also avoid double counting. Features already used to select the culpability category and starting point should not again increase the sentence as aggravating factors.

The appellant was convicted of manslaughter following a retrial at Blackfriars Crown Court. His original trial for murder had resulted in an acquittal on that count, but the jury could not agree on the added manslaughter count.

On 31 January 2019, the judge imposed a 24-year extended sentence, comprising 21 years’ custody and a three-year extension, after finding the appellant dangerous for the purposes of the Criminal Justice Act 2003. The appellant did not challenge that assessment or the use of an extended sentence.

His sentence appeal concerned whether the offence could properly be treated as Category A, or very high culpability, under the Manslaughter Definitive Guideline, and whether aggravating features had been counted twice.

1. Appeal allowed. The 24-year extended sentence was manifestly excessive. It was quashed and replaced by an extended sentence of 20 years, comprising 17 years’ custody and a three-year extended licence.

2. The first and second Category B features under the Manslaughter Definitive Guideline were properly present. The unlawful act involved intended harm falling just short of grievous bodily harm and an obvious high risk of death or grievous bodily harm. However, the judge erred in treating the death as having occurred during the commission of a serious offence by characterising the events as a conspiracy to supply Class A drugs. That proposition had been described only as arguable, whereas the relevant factual finding had to be made to the criminal standard. Nor could the court recast the case as robbery, since it had not been presented on that basis and ownership of the telephone was in issue.

3. The offence was therefore Category B, not Category A. It lay at the top of the Category B range because of the brutal assault and fatal deep stabbing, making a 16-year starting point appropriate. Relevant previous convictions and the fact that the appellant was on licence justified a one-year increase. His age and limited sentencing history were also material.

4. The court added that the guideline requires an evaluative assessment of overall culpability. Even a combination of Category B features does not automatically establish Category A. It was also wrong to increase the sentence again for knife use, a leading role and planning after those matters had already informed the selection of the Category B starting point. That would double count culpability factors.

• Court of Appeal (Criminal Division) Allowed the sentence appeal, quashed the 24-year extended sentence and substituted a 20-year extended sentence.
• Blackfriars Crown Court On 31 January 2019, imposed a 24-year extended sentence following the appellant’s manslaughter conviction at a retrial ending on 21 November 2018.
• Central Criminal Court At the original trial in July 2018, the appellant was acquitted of murder. The jury could not agree on the subsequently added manslaughter count, leading to the retrial.