Brehmer v R

A sentencing court must determine the basis of manslaughter left open by a murder acquittal. If sure of a particular basis it must sentence on that basis; if unsure, it must adopt the basis more favourable to the offender.

For manslaughter through loss of control, the court must follow the applicable sentencing guideline. A perceived proximity to murder does not justify substituting the murder framework for the guideline. The court must select the proper category and then assess aggravating and mitigating features. Credit for a plea to manslaughter may be reduced where a full trial remains necessary and the plea yields little practical benefit.

Timothy Brehmer pleaded guilty at the plea and trial preparation hearing to unlawful act manslaughter after being charged with murder. He was tried for murder after advancing the case that he lacked intent to kill or cause really serious harm. The judge left loss of control to the jury, which acquitted him of murder.

The sentencing judge was sure that Brehmer had the intent required for murder but had lost control. He sentenced him for manslaughter by reason of loss of control to 10½ years’ imprisonment. The Attorney General referred the sentence as unduly lenient, while Brehmer sought leave to appeal against it. The issues were the proper application of the loss-of-control guideline and the appropriate credit for the plea.

1. The Attorney General’s reference was allowed. The court quashed the sentence of 10½ years’ imprisonment and substituted 13½ years’ imprisonment. Brehmer’s application for leave to appeal against sentence was dismissed.
2. The judge correctly followed R v King [2017] EWCA Crim 128. The jury’s verdict left open unlawful act manslaughter and manslaughter by reason of loss of control. Since the judge was sure that Brehmer had the intent for murder and had lost control, he was required to sentence on the latter basis.
3. Section 59 of the Sentencing Code required the court to follow the definitive guideline for manslaughter by reason of loss of control. The fact that an offence came close to murder did not permit a judge to focus instead on Schedule 21. The guideline itself accommodates a qualifying trigger which only just meets the statutory criteria. The offence fell squarely within the highest culpability category, with a starting point of 14 years and a range of 10 to 20 years.
4. The sentencing judge gave insufficient weight to the victim’s sustained suffering, the prolonged and violent attack, and Brehmer’s lies intended to shift blame after it. Those factors required a significant upward movement from the starting point before mitigation. Lack of premeditation was inherent in the loss-of-control defence and could not reduce the sentence as separate mitigation. The adverse effects of Covid-related prison restrictions carried less weight for a lengthy sentence. The proper pre-plea sentence was 15 years.
5. The plea to unlawful act manslaughter justified some, but limited, credit. Although the trial was analogous to a Newton hearing because criminal responsibility for the killing had been accepted, it was not one. The plea did not avoid a full trial, spare witnesses from giving evidence, or materially reduce the impact on the victim’s family. A reduction of 15% was excessive; the proper reduction was 10%.

• Court of Appeal (Criminal Division) Granted leave for the Attorney General’s reference, quashed the 10½-year sentence and substituted 13½ years’ imprisonment. It dismissed the offender’s application for leave to appeal against sentence.
• Crown Court Mr Justice Jacobs sentenced Brehmer on 28 October 2020 to 10½ years’ imprisonment for manslaughter by reason of loss of control.