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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Attorney General's Reference No. 8 of 2011 [2011] EWCA Crim 1461 (16 June 2011) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2011/1461.html Cite as: [2011] EWCA Crim 1461

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IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT CHELMSFORD
Mr Justice Nichol
T20107164

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/06/2011

Lord Justice Leveson:

1. On 18 January 2011, in the Crown Court at Chelmsford before Nicol J and a jury, Ronald Edwards (who is 66 years of age) was acquitted of murder but convicted (effectively upon his own admission) of the manslaughter of his partner, Sylvia Rowley-Bailey ("the deceased"), who was aged 66 at the time of her death and who had been in a relationship with him for approximately 8 years. The basis for the conviction for manslaughter was by reason of provocation. Nicol J imposed a sentence of five years' imprisonment. Her Majesty's Solicitor General now seeks to refer the sentence to this court as unduly lenient pursuant to s. 36 of the Criminal Justice Act1988. We indicated at the hearing that we granted leave.

The Facts

2. The background can be summarised quite shortly. The parties had met in 2002 and, two years later, bought a house together. In 2004 the offender suffered a heart attack and, two years later, underwent a heart bypass operation. The deceased cared for him throughout this period but, at the same time, was overbearing, demanding and very hurtful. By 2009, the relationship had come to an end. Although it seems that they still occupied the same bed and study, they lived in separate sitting rooms and had discussed using separate beds. It was also suggested by the offender that he should buy his partner's one third share of the house.
3. As the relationship deteriorated, neighbours heard the deceased constantly nag and belittle the offender. They heard arguments between the two but noted that those arguments were one sided (the deceased as the principal voice). The son and daughter of the deceased also gave evidence that they had experienced the deceased berating the offender and spoke of how their own childhood and their father's life had been made a misery by the deceased. As to the offender, witnesses spoke of his usual unflappable and non-violent nature.
4. On 11 June 2010, following as a culmination of a long period of criticism and belittling conduct, matters came to a head. The deceased said that the offender could not use the bed that they shared and that he should buy a separate bed. She also said that she hated the building that he had bought and built for her in the garden, as she did the jewellery he had given to her as a birthday present: she said that she had sold it. She said that she could not wait for his mother to die so that he could inherit her money and buy her out of the bungalow. It was in these moments that the offender also felt his chest tighten and led him to fear that he was about to suffer a further heart attack. He went to the kitchen for a drink of water but was followed by the deceased who continued to be critical of him. He then picked up a knife.   
5. The offender said in evidence that he could not remember the attack but it is clear that, having picked up a knife with a 13 cm blade, he followed the deceased to the study and attacked her whilst she sat at a desk. He slashed her several times with it and stabbed her 12 times, mainly to the head, neck and upper body. Some of the wounds went to the full depth of the blade; one blow caused the blade of the knife to buckle. The knife was left imbedded in the neck of the deceased neck. There was a defence wound to the forearm that indicated that the deceased had tried to ward off the attack; the deceased also suffered bruises and abrasions. The attack was described by the judge as "ferocious".
6. The reaction of the offender is important. First, he telephoned a firm of (conveyancing) solicitors and spoke to them for 7 minutes and 48 seconds. That firm gave him the number of another firm. The offender spoke to a solicitor from that firm for 7 minutes and 4 seconds, before contacting the emergency services. The offender gave evidence that he spoke to the solicitor because he was worried about his position and that of his mother and daughters. In the telephone call to the emergency services he said, amongst other things, that she had gone "on and on and on at me for ages" and "we've had a row and I've just flipped out…..I just saw red."  The judge found that the offender expressed genuine remorse on the telephone to the emergency services, to the police and whilst giving evidence. Having offered to plead guilty to manslaughter, it was for that offence that he fell to be sentenced after the jury acquitted him of murder.
7. When passing sentence, Nicol J referred to the different level of sentences characterised by the Sentencing Guidelines Council for manslaughter based upon provocation and the distinction between immediate provocative conduct and the duration for which it lasted. He concluded that this case was one of low level provocation by words not deeds although it had been lasting for months and, on 11 June, was "the straw that broke the camel's back". In the circumstances, he concluded that he would have imposed a sentence of 8 years imprisonment, had it not been for the early stage at which the offer to plead guilty to manslaughter was made: thus, he imposed the term of 5 years imprisonment to which we have referred.
8. On behalf of the Solicitor General, Mr Edward Brown Q.C. placed the following aggravating features before the court. First, the offender used a knife in the attack. Secondly, the degree of provocation was low (by words and without violence) albeit having continued for months. The deceased did not present a threat to the offender who acted out of anger and frustration rather than desperation or fear. It was not suggested that the ferocity of the attack (which went to the issue of loss of control) should aggravate the offence.  At the same time, Mr Brown accepted mitigating features in the form of the offender's age, positive good character and poor health. Secondly, the attack was the spontaneous and his actions lacked premeditation. Third, the offender denied that he deliberately targeted the chest and neck of the deceased or that he had intended to kill her. Finally, the offender had expressed remorse for his actions (albeit that he did not call the emergencies services immediately) and, on 11 October 2010, had offered to plead guilty to manslaughter by reason of provocation, although this was never in fact tendered before the court.
9. Essentially, Mr Brown submitted that, in accordance with the guideline on Manslaughter by reason of Provocation issued by the Sentencing Guidelines Council, the learned judge should have started at a term of 12 years imprisonment (low degree of provocation over a short period) which it was then appropriate for him to reduce balancing the use of a knife against the lengthier provocation to which the offender was subject. He also argued that the discount from 8 years to 5 years by reason of the plea (amounting to over 37%) was excessive not least because he did not, in fact, enter a plea to manslaughter and, in any event, never had any defence to that charge. In the circumstances, these errors led to a sentence that was below the bottom of the range.
10. Mr Fitzgibbon (who appeared for the offender as he had before Nicol J) took issue with this analysis and argued that the sentence was not unduly lenient. He submitted that the degree of remorse was very high: the offender had broken down on several occasions when giving evidence. Further, the offender was generally a kind, phlegmatic man and the critical feature of the case was that there was no cooling off period: he had felt a heart attack coming on yet the deceased had continued to abuse him. The use of the knife was not an aggravating feature because the knife was to hand and he had lost his self control. As for the fact of the admission, it was clear from the transcript of the 999 call that the offender had admitted what he had done. Mr Fitzgibbon also referred to the contribution that the offender had made while in prison as well as his medical condition and his concern for the welfare of his mother and daughters.

Analysis

11. The guideline on Manslaughter by Reason of Provocation applied to offenders being sentenced after 28 November 2005. Work began on the guideline before the Criminal Justice Act 2003 came into force but although the legislation is referred to, the guideline does not include any analysis of (or make reference to) the potential impact on sentences for manslaughter of s. 269(2) and Schedule 21 of the Act which provides the framework within which the court must approach sentences for murder. In R v. Porter [2007] 1 Cr App R (S) 115, May LJ (as he then was) noted the disparity between the effect of a life sentence for murder and determinate terms imposed for those convicted of manslaughter and expressed the court "not satisfied" that the higher starting points prescribed by Parliament were of relevance to the issue of sentencing for manslaughter. In Attorney General's Reference Nos 90 and 91 of 2006 (R v Richards & Botchett) [2007] 2 Cr App R (S) 31, the court considered a sentence for manslaughter in the course of a burglary (which, if the conviction had been for murder would have led to a 30 year starting point for the minimum term). Latham LJ observed (at para. 17) that the extent to which sentencing for manslaughter should in any way be equated with the sentence appropriate for murder was one which "calls for some caution".
12. On the other hand, more recently, there has been a greater recognition that the significance of loss of life which, at least in part, is reflected in the approach prescribed by Schedule 21, should be matched by a recognition of that fact in sentences passed in manslaughter cases albeit that the lack of intent, diminished responsibility or provocation was also of critical significance. Thus, in relation to manslaughter by reason of diminished responsibility, in R v. Wood [2010] 1 Cr App R (S) 2, [2009] EWCA Crim 651, a court of five judges, in which the Lord Chief Justice presided, considered how to determine the minimum term when imposing an indeterminate sentence. Lord Judge said (at para. 21):

"There is no express statutory link between the guidance in schedule 21 of the 2003 Act and the principles to be applied to sentencing decisions in diminished responsibility manslaughter. Where diminished responsibility is established it serves to reduce the defendant's culpability for his actions when doing the killing, but the remaining circumstances of the homicide are unchanged. Specific features of the seriousness of the homicide, for example a double rather than a single killing, or the sadistic killing of a child may be common both to murder and diminished responsibility manslaughter. At the same time the mitigating features expressly identified in schedule 21 extend to what may approximate but not amount to the defence of diminished responsibility and provide an additional connection between the schedule and the defence. Finally, the culpability of the defendant in diminished responsibility manslaughter may sometimes be reduced almost to extinction, while in others, it may remain very high. Accordingly when the sentencing court is assessing the seriousness of the offence with a view to fixing the minimum term, we can discern no logical reason why, subject to the specific element of reduced culpability inherent in the defence, the assessment of the seriousness of the instant offence of diminished responsibility manslaughter should ignore the guidance. Indeed we suggest that the link is plain."

13. Similarly, in cases of involuntary manslaughter, the same point has been made. In Attorney General's Reference No 60 of 2009 (R v. Appleby and others) [2010] 2 Cr App R (S) 311, [2009] EWCA Crim 2693, the Lord Chief Justice presided over another five judge court. Noting (at para. 3) the same "catastrophic result for the deceased and his family", namely "the loss of a precious life", he said (at para. 22):

"If it is necessary to examine any sentencing decisions prior to Furby, and indeed prior to this judgment, they should be examined with the clear understanding that none of the decisions we have seen, … has proceeded on the basis which we have now addressed, that crimes which result in death should be treated more seriously, not so as to equate the sentencing in unlawful act manslaughter with the sentence levels suggested in schedule 21 of the 2003 Act, but so as to ensure that the increased focus on the fact that a victim has died in consequence of an unlawful act of violence, even where the conviction is for manslaughter, should, in accordance with the legislative intention, be given greater weight."

14. A similar approach has been adopted in other cases (see, for example, involuntary manslaughter in a baby shaking, R v Burridge [2010] EWCA Crim 2847 and Attorney General's Reference No 125 of 2010 (R v. Draper), [2011] EWCA Crim 640). Finally, we refer to R v Thornley [2011] EWCA Crim 153. In relation to manslaughter by reason of provocation, where death was caused with a knife, Lord Judge referred not only to this greater recognition of the relevance of Schedule 21 but also other changes since the guideline relating to the significance of knife crime by a generally and the impact of para. 5A of Schedule 21 (introducing a starting point of a minimum term of 25 years where a knife or other weapon is taken to the scene by a defendant intending to commit an offence or to have it available for use as a weapon). He said (at para 15):

"It is clear to us from the developments analysed by Calvert-Smith J that the use of a knife, even in cases of manslaughter by provocation shall now be regarded as a more significant feature of aggravation than it was when the guideline was published. In the end everything depends upon the individual circumstances of each case: why and how the knife came to be picked up and eventually used."

15. Lord Judge noted that even with a starting point (as in this case) of a determinate term of 12 years imprisonment, the range was from ten years to life which provided "an ample bracket which makes allowance for the changes and developments indicated by this court in its judgments or indeed by the legislation". Such legislation obviously includes ss 54-55 of the Coroners and Justice Act 2009 which introduces new provisions relating to loss of control to replace the defence of provocation and which came into force for offences committed after 4 October 2010. Although by s. 54(2) of the Act, loss of control does not have to be sudden, there must be a qualifying trigger: see s. 54(1)(b). These consist of fear of serious violence from the victim or another and things said and/ or done constituting circumstances of an extremely grave character and causing the defendant to have a justifiable sense of being seriously wronged: s. 55. Thus, what appears to be a higher (and certainly a different) threshold than the common law has been created and will have to be taken fully into account in its impact on the culpability of the offence while, at the same time, the greater focus on the death of the victim as represented by the authorities to which we have referred equally falls to be considered. Just as important will be the adjustment to minimum terms in sentences for murder (a mitigating factor being provocative conduct albeit not sufficient to provide a partial defence in circumstances such as sexual infidelity), which might have generated a partial defence under the old law. At this stage, it is inappropriate to seek to elaborate upon the likely impact of these changes by reference to hypothetical situations although we anticipate that they will shortly fall for consideration.
16. Turning to the facts of this case, although we recognise the impact of prolonged, albeit low level provocation, it cannot be gainsaid that the deceased did not present a threat of any sort to the offender who could have left the house and then sought some other way of resolving the continuing tension that existed between him and the deceased. While we entirely accept that he did not bring the knife to the scene (as to which see the judgment in R v. Kelly; R v Bowers; R v Singh;R v Harding; R v Robinson; R v R; R v Roberts and R v Barr [2011] EWCA Crim 1462), he did take it from the kitchen and followed the deceased into the nearby study; his actions albeit spontaneous were not instantaneous. Because he was in the kitchen, the knife may well have been close to hand but he chose to pick it up, follow the deceased into the study and then attack her with it. For every offences of violence, the use of any weapon (in particular, a knife) will always be an aggravating feature and will serve to increase sentence.
17. In the circumstances, we agree with Mr Brown that the learned judge did not adequately bear these aggravating features in mind and, additionally, allowed too much credit for the guilty plea which was not formally entered at the first reasonable opportunity. Making every allowance for the offender's remorse, his offer to plead guilty to manslaughter and the personal circumstances of which Mr Fitzgibbon so eloquently spoke and which are also contained in the letter from the offender placed before the court, in our judgment this sentence was clearly unduly lenient. After a trial, the sentence could not have been less than 10 years and the least sentence that can now be imposed on this reference is 7½ years. That is the change to the sentence which we now impose and, to that extent, this reference succeeds.