R v NH

In sentencing manslaughter, intention to cause harm just short of grievous bodily harm and an obvious high risk of death or grievous bodily harm are distinct culpability factors. A sentencing judge may find both, even where recklessness was not an issue for the jury. Their overlap does not amount to double counting. The factors do not automatically place an offence in the highest culpability category. The court must balance them with the circumstances overall and avoid a mechanistic approach. An appellate court need not interfere merely because the youth reduction was not set out with ideal clarity, where the correct principles were applied and the sentence is not manifestly excessive. Where detention is unavailable for one offence in a multiple-offence sentence, no separate penalty should be imposed for that offence.

The applicant, aged 15½ at the time of offending, was convicted at Harrow Crown Court of manslaughter and having a bladed article. He received an extended sentence of 13 years for manslaughter, comprising 10 years’ custody and a three-year extended licence period, together with a concurrent two-year sentence in a young offender institution for the bladed-article offence.

He renewed an application for leave to appeal against sentence, challenging the manslaughter culpability category, the treatment of his youth and mitigation, and the proportionality of the sentences. The Criminal Appeal Office identified a separate technical defect: the detention sentence for the bladed-article offence was unavailable under the Sentencing Act 2020. The central issues were whether the manslaughter categorisation and sentence were lawful and whether the sentence on count 2 should be corrected.

The application was dismissed on all substantive grounds. Leave was granted only to correct the sentence on count 2.

1. Manslaughter culpability. The sentencing judge was entitled to find both category B factors: that death was caused in an unlawful act involving an intention to cause harm falling just short of grievous bodily harm, and that the act carried an obvious high risk of death or grievous bodily harm. The jury’s role in determining the verdict was distinct from the judge’s role in sentencing. The absence of a jury direction on recklessness did not prevent the judge assessing the risk created by the assault ([2023] EWCA Crim 241, paras 18–21).
2. The two factors were logically and conceptually separate. Intention concerned the offender’s state of mind, whereas risk concerned the effects or possible effects of the conduct. Some evidential overlap was permissible and did not constitute double counting. The presence of both factors did not automatically require category A. The court had to balance the culpability characteristics in the circumstances of the offence and avoid an overly mechanistic approach. One factor of an extreme character could suffice; there were no rigid categories ([2023] EWCA Crim 241, paras 22–26).
3. The judge’s reasons would have been clearer had she stated expressly the notional adult starting point, the reduction for youth and immaturity, and her application of the youth guideline. However, she had the correct principles in mind. The aggravating features justified a notional adult sentence of about 20 years, and the reduction to 10 years was consistent with the guidance for a young offender. The sentence was not, even arguably, manifestly excessive ([2023] EWCA Crim 241, paras 28–31).
4. The sentence of two years’ detention in a young offender institution on count 2 was unavailable under sections 249 and 250 of the Sentencing Act 2020. Following R v Carroll [2004] EWCA Crim 1367 and R v Dacus [2020] EWCA Crim 1879, where detention is available for some offences but not others, the proper course is to impose detention for the offences for which the power exists and no separate penalty for the remaining offence. The sentence on count 2 was quashed and no separate penalty substituted ([2023] EWCA Crim 241, paras 33–35).

No representation order was granted because the technical defect could have been corrected on the papers.

1. Court of Appeal (Criminal Division) — [2023] EWCA Crim 241. The application for leave to appeal against sentence was dismissed on all substantive grounds. Leave was granted for the limited purpose of correcting the sentence for having a bladed article. The two-year detention sentence was quashed and no separate penalty substituted.
2. Single judge — Leave to appeal was refused on the papers; the application was renewed before the full court.
3. Harrow Crown Court — The applicant was convicted on 22 July 2022 and sentenced on 12 September 2022 to an extended sentence of 13 years for manslaughter and a concurrent two-year sentence in a young offender institution for having a bladed article.