Donovan & Anor , R. v

Where a jury verdict permits more than one factual interpretation, the sentencing judge must determine the factual basis to the criminal standard. If the judge cannot be sure which interpretation is correct, sentence must be passed on the basis most favourable to the offender.

A loss-of-control issue left to the jury, including the exclusion for a considered desire for revenge, does not prevent the judge from sentencing on a different basis where the judge is sure of it. A finding that a murder was committed for gain justified the applicable starting point under Criminal Justice Act 2003.

Following a jury trial at the Central Criminal Court, Kerry Donovan was convicted of murdering Leroy Junior Edwards and Aaron Woolcock was convicted of his manslaughter. Donovan received a life sentence with a minimum term of 27 years. Woolcock received 14 years’ imprisonment.

Both appealed their sentences. They contended that the sentencing judge was not entitled to find that the killing was motivated by robbery rather than revenge, and that the resulting sentencing assessments were excessive. The central issue was the proper approach to the factual basis for sentence where a jury verdict may be consistent with more than one account.

1. The appeals were dismissed. The sentencing judge was entitled to be sure that the killing was committed for gain and to sentence both appellants on that basis.
2. Where a jury verdict has only one possible factual interpretation, sentence must be passed on that basis. Where it has more than one possible interpretation, the judge must decide the factual basis to the criminal standard. If the judge cannot be sure of any interpretation, fairness requires sentence on the interpretation most favourable to the defendant. The court adopted and applied the approach in R v King (Dwayne), [2017] EWCA Crim 128.
3. The loss-of-control issue was properly left to the jury because Donovan’s evidence could have been accepted. The direction concerning the exclusion for a considered desire for revenge under section 54(4) of the Coroners and Justice Act 2009 was also necessary. Those directions did not require the judge to sentence on a revenge basis if he could be sure of a different factual basis.
4. The judge had given clear and cogent reasons for rejecting Donovan’s account and for finding robbery to be the true motive. The Court of Appeal held that he had not relied solely on the absence of any earlier complaint of abuse. His finding engaged the 30-year starting point for murder for gain under paragraph 4 of Schedule 21 to the Criminal Justice Act 2003. The reduction to a 27-year minimum term properly reflected the absence of an intention to kill and the limited planning.
5. Woolcock had intentionally encouraged or assisted the use of a large knife in circumstances carrying an obvious high risk of death or really serious injury. The judge was entitled to treat the unlawful-act manslaughter as category B, high culpability, and to impose 14 years’ imprisonment within the guideline range.

• Court of Appeal (Criminal Division) — dismissed both appeals against sentence.
• Central Criminal Court — Donovan was convicted of murder and sentenced to life imprisonment with a 27-year minimum term. Woolcock was convicted of manslaughter and sentenced to 14 years’ imprisonment.