R v Sylwester Kawalec

On an appeal against sentence, a defendant cannot reopen the factual basis of a jury’s verdict or rely on a defence the jury rejected. A sentencing judge may reflect lesser culpability, including the absence of an intention to kill, by adjusting the statutory starting point. The judge must still sentence on the verdict and assess all aggravating and mitigating features. A sentence below the starting point is not manifestly excessive where those matters have been properly considered. A minimum term must be calculated with credit for qualifying time spent on remand. An incorrect pronouncement that makes the sentence longer than intended may be corrected on a late appeal where the interests of justice require it.

The applicant was convicted of murder and conspiracy to pervert the course of justice in the Crown Court at Carlisle. He received a life sentence with a minimum term of 22 years and a concurrent seven-year sentence. Almost ten years later, he renewed his application for leave to appeal against sentence and sought an extension of time. He argued that his role supported manslaughter rather than murder, and relied on further mitigation. The Court also identified that the sentencing judge had failed to credit 217 days spent on remand. The central issues were whether the sentence was manifestly excessive and whether the minimum term had been lawfully calculated under the Criminal Justice Act 2003.

1. Disposition. The application for an extension of time was granted on the limited issue concerning credit for time spent on remand. The grounds alleging that the sentence was manifestly excessive were not reasonably arguable.
2. Basis of sentence. The applicant could not go behind the jury’s rejection of his case that he had acted in defence of his co-defendant. The sentencing judge was entitled, and required, to sentence on the basis of the jury’s verdict. The judge correctly found that the applicant had played a full and active part in a planned attack, knew that his co-defendant had a knife, and intended really serious harm, although he did not intend to kill or wield the knife himself.
3. Starting point and mitigation. Paragraph 5A of Schedule 21 to the Criminal Justice Act 2003 provided a 25-year starting point. The judge considered the planning, premeditation, violence and conspiracy to pervert the course of justice, together with the applicant’s lack of intention to kill, age, good character, employment record and the history of violence involving the deceased. The three-year reduction to 22 years was therefore not manifestly excessive.
4. Calculation of the minimum term. Section 269 of the Criminal Justice Act 2003 required credit for the 217 days spent on remand. The Court noted that R v Cookson and R v Sesay had affirmed that the calculation could not lawfully be left to administrative correction. Because the omission made the sentence 217 days longer than intended, the Court allowed the appeal to the limited extent of declaring the minimum term to be 21 years and 148 days.

• Court of Appeal (Criminal Division) — In [2024] EWCA Crim 939, the renewed application for leave and extension of time was granted on a limited ground. The appeal was allowed only to correct the minimum term to 21 years and 148 days.
• Crown Court at Carlisle — The applicant was convicted of murder and conspiracy to pervert the course of justice and sentenced on 24 May 2013 to life imprisonment with a 22-year minimum term, together with a concurrent seven-year sentence.