R v Matthew Banks

In sentencing for unlawful act manslaughter, the sentencer must make a fair overall assessment of culpability under the relevant guideline and avoid a mechanistic categorisation. Where conduct falls within medium culpability but comes close to the high-culpability category, an upward adjustment from the medium-category starting point may be required before aggravating and mitigating features are weighed.

In a case involving the forceful shaking of a helpless infant, the prolonged and grave consequences of the injuries may substantially aggravate seriousness. Any assessment of parental responsibility must avoid double counting matters already reflected elsewhere in the sentencing exercise.

The offender pleaded guilty to the manslaughter of his four-week-old son, Leo, after forcefully shaking him while in sole charge. Leo suffered catastrophic injuries, remained seriously ill for more than two years, and died in March 2020.

At the Crown Court at Winchester, Cutts J sentenced the offender on 21 October 2022 to three years and eight months’ imprisonment. The Attorney General referred the sentence under Criminal Justice Act 1988, section 36, as unduly lenient.

The central issue was whether the offence had been correctly assessed under the unlawful act manslaughter guideline and whether the aggravating features justified a higher sentence.

1. The court granted leave to refer the sentence, held that it was unduly lenient, quashed it, and substituted a sentence of five years and four months’ imprisonment.

2. The guideline already treated all manslaughter as involving harm of the utmost seriousness and therefore accounted for the loss of life. Its culpability indicators required an overall, non-mechanistic assessment. The judge was entitled to place this offence in category C, as medium culpability, rather than category B. The degree of force used against a very young and helpless baby nevertheless came close to an obvious high risk of death or grievous bodily harm.

3. That proximity to category B required an initial upward adjustment from the category C starting point before aggravating and mitigating features were considered. The judge had erred by failing to make that adjustment.

4. The offender’s mitigation was substantial, but it did not outweigh the aggravating features. The judge had sufficiently borne in mind the breach of parental responsibility, and care was required to avoid double counting it. However, insufficient weight had been given to the child’s prolonged serious illness, repeated hospital admissions, and deprivation of maternal comfort after the injuries. Those consequences substantially increased the offence’s seriousness.

5. The appropriate sentence could not have been less than eight years’ imprisonment before full credit for the guilty plea. Applying a one-third reduction produced the substituted sentence.

• Court of Appeal (Criminal Division) — On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court granted leave, quashed the sentence as unduly lenient, and substituted five years and four months’ imprisonment: [2023] EWCA Crim 202.
• Crown Court at Winchester — On 21 October 2022, Cutts J sentenced the offender, following his guilty plea to manslaughter, to three years and eight months’ imprisonment.