Attorney General v Gordon

In sentencing for unlawful act manslaughter, the public location of violence may aggravate the offence, but its weight depends on the particular facts. The absence of express references to time and location in the sentencing guideline does not make the guideline defective. Its list of contextual factors is non-exhaustive and it reflects prior sentencing practice.

A young adult must be sentenced with proper regard to the continuing relevance of youth. The eighteenth birthday is not a rigid dividing line. On a reference under section 36 of the Criminal Justice Act 1988, the court may increase a sentence only if it is unduly lenient, rather than merely more lenient than the court would itself have imposed.

Ally Gordon was convicted at Newcastle-upon-Tyne Crown Court, before Lavender J, of manslaughter as an alternative to murder and of possessing an article with a blade or point. His co-accused, Leighton Barrass, was convicted of murder after repeatedly stabbing Connor Brown.

Gordon had kicked and stamped on Brown while Brown was grappling with Barrass. The sentencing judge was not sure that Gordon knew Barrass had a knife. Gordon received three years and six months’ detention in a young offenders’ institution, with a concurrent sentence for the bladed-article offence.

The Attorney General sought leave to refer the sentence as unduly lenient. The principal issues were the significance of public city-centre violence, Gordon’s youth and mitigation, and whether the overall sentence adequately reflected the separate lock-knife offence.

1. Leave to refer was refused and the application was dismissed. Although the sentence was lenient, it was not unduly lenient.

2. The Sentencing Council guideline for unlawful act manslaughter was not defective because it did not specifically list the time and location of offending as aggravating factors. The contextual factors listed in the guideline are non-exhaustive. Location is always relevant, but its aggravating force depends on the facts. A night-time city-centre offence was not necessarily more serious than the same offence committed during the day.

3. The court explained that R v Appleby [2010] 2 Cr. App. R(S) 46 had emphasised that the harm in unlawful act manslaughter is always death. That authority had informed the later guideline. A judge who correctly applies the guideline need not separately refer to Appleby.

4. The judge had taken proper account of the public nature of the violence. Barrass’s earlier drug dealing could not aggravate Gordon’s sentence because it had no connection with him. Nor did the facts support the submission that Gordon had used a shod foot as a weapon against a helpless victim. He was a secondary party, did not know of the knife, caused no injury, and kicked Brown while Brown was on top of Barrass.

5. The judge was entitled to move upward from the category C starting point for the public nature of the offence, then substantially downward for the mitigating features. In particular, Gordon was 19. As R v Clarke [2018] EWCA Crim 185 and R v Hobbs [2018] EWCA Crim 1003 confirm, the eighteenth birthday is not a cliff-edge for the principles governing young offenders.

6. It was acceptable to incorporate the lock-knife offence within the manslaughter sentence. The controlling question was whether the overall sentence reflected the total criminality. Applying Attorney-General's Reference No 4 of 1989 [1989] 11 Cr App R (S) 517, the court would not increase a sentence merely because it would itself have imposed a longer one.

• Court of Appeal (Criminal Division): On the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court refused leave to refer Gordon’s sentence as unduly lenient and dismissed the application.

• Crown Court at Newcastle-upon-Tyne: Lavender J convicted Gordon of manslaughter as an alternative to murder and a bladed-article offence, and imposed three years and six months’ detention with a concurrent sentence for the bladed-article offence.