Ben Oliver v R

In manslaughter by reason of diminished responsibility, retained responsibility requires careful analysis of all relevant factors and precise calibration within the sentencing guideline. It is not a mathematical exercise. The sentencing court may weigh aggravating and mitigating factors as a matter of judgment, and appellate intervention requires more than disagreement with that assessment. A dangerousness finding under s 285 of the Sentencing Act 2020 requires a separate decision on whether the offence is sufficiently serious for life imprisonment. That decision must address the offence, previous convictions, public danger, the reliability of estimating its duration and available alternatives.

The appellant pleaded guilty to manslaughter following a murder trial in which he was acquitted by reason of diminished responsibility. The Central Criminal Court imposed life imprisonment under s 285 of the Sentencing Act 2020, after finding him dangerous, and fixed a minimum term ultimately corrected to 9 years and 124 days.

He appealed by leave, arguing that the sentence was manifestly excessive because insufficient weight had been given to personal mitigation and his mental health, and that the finding of dangerousness was erroneous. The central issues were the assessment of retained responsibility, the balancing of aggravating and mitigating factors, and the statutory requirements for dangerousness and a life sentence.

Appeal dismissed. The sentencing judge had adopted a correct approach, and the sentence was not manifestly excessive.

1. Retained responsibility. The assessment in manslaughter by reason of diminished responsibility is not mathematical. It requires careful analysis of the relevant factors and precise calibration within the sentencing guideline, first by selecting the high, medium or low category and then by fixing the sentence within the applicable range. The appellant’s lack of psychosis, deliberate conduct and awareness that he was killing his grandfather supported the judge’s assessment. His autism, upbringing and recent disclosures reduced responsibility but did not remove it.
2. Aggravating and mitigating factors. The weight given to such factors is a matter of judgment for the sentencing judge, based on the evidence and submissions. The judge had heard the trial and considered the psychiatric evidence. She was entitled to conclude that the relevant aggravating and mitigating factors balanced each other.
3. Dangerousness. Under the Sentencing Act 2020, s 308, the court must consider information about the offence and may consider previous convictions, patterns of behaviour and information about the offender. The ferocity and suddenness of the attack, the appellant’s inability to form a rational decision in response to what he had learned, and his previous offending supported the finding of a significant risk of serious harm.
4. Life sentence. A finding of dangerousness was followed by the separate question whether the offence was sufficiently serious to justify life imprisonment. The court applied the guidance in Attorney General’s Reference No 27 of 2013 (R v Burinskas) [2014] EWCA Crim 334. The relevant matters were the seriousness of the offence, previous convictions, the level and likely duration of danger, and available alternative sentences. The judge had followed that guidance and given a carefully reasoned decision. The minimum term therefore remained 9 years and 124 days.

• Court of Appeal (Criminal Division): The appeal against sentence was dismissed on 30 March 2023. [2023] EWCA Crim 336.
• Central Criminal Court: On 2 August 2022, Her Honour Judge Munro KC imposed life imprisonment under s 285 of the Sentencing Act 2020, with a minimum term ultimately corrected to 9 years and 124 days.