R v Benjamin Richards Parry & Ors

In sentencing for unlawful act manslaughter, objective risk and subjective intent are distinct aspects of culpability. They may overlap, but must be assessed together without a mechanistic approach. A comparatively limited intention to cause harm does not prevent Category A culpability where the offender creates an obvious high risk of death or grievous bodily harm. On a Solicitor General’s reference, the appellate court gives substantial deference to the sentencing judge, but may reassess the objective element where the evidence places it in an equally good position. A jury’s rejection of an overwhelming supervening event does not necessarily establish that secondary participants knew or ought to have known of the risk of death or grievous bodily harm. A sentence that is lenient remains within the permissible range unless it is unduly lenient.

Following a three-week trial at Plymouth Crown Court, the three respondents were convicted of manslaughter and acquitted of murder. On 13 January 2023, Mr Justice Garnham sentenced the first respondent to 12 years’ imprisonment and the other two respondents to four years’ imprisonment each. The Solicitor General sought leave under section 36 of the Criminal Justice Act 1988 to refer the sentences as unduly lenient. The central issues were whether the first respondent’s objective risk and subjective intent placed his offending in Category A rather than Category B, and whether the other respondents’ Category C sentences fell outside the reasonable range.

Outcome. The reference was allowed as to the first respondent and refused as to the second and third respondents.

1. Appellate approach. The court had to give great deference to the trial judge’s assessment of the circumstances, including intent, because the judge had heard the evidence and observed the offender. The dash-cam footage was only one part of the sentencing exercise. However, the Court of Appeal was in as good a position as the trial judge to assess the objective element of the fatal incident.
2. First respondent. The court accepted that driving the van into the motorcycle carried a high risk of death or grievous bodily harm which was, or ought to have been, obvious. The trial judge had correctly identified the aggravating factors and was entitled to temper the objective risk because the subjective intention was comparatively less serious. Nevertheless, objective risk and subjective intent were distinct factors, not two sides of the same coin. Their combination placed the offending in Category A, despite the need to avoid an overly mechanistic approach. The sentence was therefore unduly lenient. The 12-year sentence was quashed and a sentence of 15 years substituted, after applying the accepted 25 per cent reduction for the indication of a guilty plea. No separate penalty was imposed for the regulatory offence. The driving disqualification was increased from 10 to 12 years.
3. Second and third respondents. The jury’s rejection of an overwhelming supervening event did not necessarily mean that they knew or ought to have known of the risk of death or grievous bodily harm. The verdict was consistent with the continuation of the common intent to cause minor harm, which was not eradicated by the first respondent’s unexpected act. The trial judge was entitled to place both offenders in Category C, and their sentences fell within the reasonable range. Although lenient, they were not unduly lenient, so the reference was refused as to them.

• Court of Appeal (Criminal Division) — In [2023] EWCA Crim 421, the reference was allowed as to the first respondent, whose sentence was increased to 15 years’ imprisonment, and refused as to the second and third respondents.
• Plymouth Crown Court — Mr Justice Garnham sentenced the first respondent to 12 years’ imprisonment and the second and third respondents to four years’ imprisonment each on 13 January 2023, following manslaughter convictions.