Attorney General's Reference No 49 of 2004

Lord Justice Keene: This is an application under section 36 of the Criminal Justice Act 1988 by HM Attorney General for leave to refer a sentence to this Court because it appears to him to be unduly lenient. We grant leave and we treat this as being the hearing of the reference.

On 12th December 2003 at Liverpool Crown Court this offender pleaded guilty to manslaughter on an indictment charging him with murder. That plea was accepted on the basis that he did not intend to kill or to cause grievous bodily harm. On 7th April 2004 he was sentenced by His Honour Judge Roberts to six years' imprisonment. The offence had been committed during the unexpired part of an earlier custodial sentence and the offender was ordered to serve the outstanding part of that sentence, 137 days, consecutively to the above term.

The offender had provided a written basis of plea which was not accepted by the Crown. There consequently had to be a Newton hearing to resolve a number of factual matters which were in dispute. We set out the facts of the case as determined after that Newton hearing.

The victim, Kelly Reid, was 22 years old at the time. She began a relationship with the offender late in 2002 and shortly afterwards he moved into her home. On 6th July 2003 the two of them attended a barbeque and then went on in the evening to a public house. They were seen there arguing. Both of them were evidently drunk. They left separately with the victim going to her sister's for a time. There was evidence that she was upset and crying. Her sister suggested to her that she left the offender, but the victim said that she could not end the relationship because he would kill her.

Eventually the victim left and went home. There, it seems, there was a drunken fight in which the offender lost his temper and punched her in the face before applying considerable pressure to her chest from which she died. She was found lying almost naked in the living room with nothing but socks below the waist and a bra and T-shirt above the waist, the T-shirt having been pulled up so as to expose the bra.

Paramedics, who eventually came, saw that she was bleeding from the nose and there was bruising to the eyes. They also saw faeces and blood on the floor and around the patient. The house was in disarray with broken pieces of furniture scattered over the room. Kelly Reid was not breathing and it proved impossible to resuscitate her.

During the post-mortem examination the pathologist found bruising and a laceration to the left eye, further areas of bruising to the nose, to the muscles deep to the right shoulder blade, to the right side of the vertebral column and to the tissues above and below the heart. Death had occurred as a result of blunt trauma to the chest, most likely the result of compression such as might occur in a forceful bear hug. There were also fresh tears to the skin around the anus, oozing blood. The rectal lining was reddened and there was damage to the underlining muscle fibres of the anus. There was evidence at the Newton hearing that the cause of those injuries was the introduction with considerable force of an object such as a penis, a finger, a hand, or an inanimate object, tearing the sphincter muscle.

In interview the offender spoke of an argument during which he had punched the victim in the face and she had slumped to the ground. He said that he had sought to resuscitate her by pressing on her chest and had then noticed she had defecated. He said he had tried to clear that up.

In court he provided a written basis of plea in which he claimed that the fatal injury had been as a result of a single blow to the chest because he could not hear her breathing. He denied responsibility for the anal injuries suffered by the victim. His case on that was that she must have had anal sex with someone else before arriving home.

Having heard evidence at the Newton hearing from the paramedic who attended the scene, Two pathologists and the offender, the judge found that the trauma to the chest was as a result of compression and that non-consensual injuries to the anus had been inflicted by the offender. The judge also observed that the victim had been a young woman of 22 and that the offender was a much heavier man.

The Attorney General draws attention to the record of the offender for violence. The offender is now aged 38 and he has a total of 27 previous convictions. Those include repeated offences of violence. He was convicted of section 20 wounding in 1985 and again of the same offence in 1988, together with an assault occasioning actual bodily harm. The following year he was convicted of grievous bodily harm under section 20, of which offence he was again convicted in 1991. In 1992 he was convicted of a further offence of assault occasioning actual bodily harm. In 1992 he was also sentenced to 30 months' imprisonment for aggravated burglary. There was another conviction for occasioning actual bodily harm in 1997, as there was in 1998 along with one for common assault. In 2002 he was again convicted of assault occasioning actual bodily harm, as well as a public order offence. We add for completeness that he also has convictions for criminal damage.

In those circumstances the Attorney General makes two submissions. First, it is contended that, as a commensurate sentence, six years' imprisonment was unduly lenient for this offence. It failed, it is said, to reflect adequately the aggravating features present in this case and, in particular, the sexual aspect of the attack and the offender's appalling criminal record for committing offences of violence. It is also said on behalf of the Attorney General that that sentence fails adequately to punish this offender sufficiently, or to deter others from committing similar offences, or to reflect public concern about such cases.

On behalf of the Attorney General Mr Laidlaw argues that the sentence here imposed would be appropriate for an ordinary case of no intent manslaughter, but simply does not properly take account of the very serious sexual assault, the very bad record of this offender for violence and the fact that this offence occurred soon after his release from prison for an offence of violence.

Secondly, the Attorney General submits that the judge should have passed here a longer than commensurate term of imprisonment pursuant to the provisions of section 80(2)(b) of the Powers of Criminal Courts (Sentencing) Act 2000 ("the 2000 Act") in order to protect the public from serious harm from this offender. Mr Laidlaw particularly emphasises the fact that this manslaughter was the latest in a long series of violent offences, and it is contended that this was clearly an appropriate case where the need to protect the public required a longer sentence than a commensurate one.

As aggravating features Mr Laidlaw relies upon the following matters. First, the fact that this was a deliberate and drunken attack carried out by a physically superior offender upon a victim who would have been unable to defend herself. Secondly, that whilst the offender's plea of guilty was on the basis that he had not intended to cause really serious harm, the nature of the act that led to the victim's death demonstrates the offender to have been indifferent to the consequences of what was obviously a very dangerous act. Thirdly, emphasis is placed upon the subjecting of the victim to a gratuitous extremely serious and degrading sexual attack, so that she suffered the indignity and pain of penetration and damage to anus and rectum. Fourthly, reference is, of course, made to this offender's bad record and his record, in particular, for violent offending. Finally, emphasis is placed on the fact that this offence occurred after his release from prison in respect of an offence of violence while there was still an unexpired part of that term.

The Attorney accepts that some discount had to be given for the plea of guilty, but it is argued that the degree of credit had to be reduced by the disputing by the offender of some of the factual features of the offence. Reliance is placed by the Attorney General on three authorities, Silver 15 Cr App R(S) 836, Tzambazles [1997] 1 Cr App R(S) 87, and Attorney General's References Nos 74, 95 and 115 of 2002 [2003] 2 Cr App R(S) 42.

For the offender Mr Smith emphasises that this was not a case of premeditated violence. It was violence occurring in the course of a short fight which seems to have been initiated by the victim. He also stresses the fact that the offender here showed remorse immediately after the killing and did indeed seek to obtain an ambulance through a neighbour. The point is made that there was a plea here at the earliest opportunity. Mr Smith draws attention also to the fact that the offender has no record for domestic violence, or for violence against women. His offences in the past of violence have all been ones against men, either through his work as a doorman, or taking place in public houses. In the light of those factors, it is argued that this was not a lenient sentence imposed by the judge below, or, if it was, it was not unduly so.

Mr Smith submits that a sentence of five years is one which should have been the starting point as indicated in Silver as an appropriate sentence unless there are aggravating circumstances present. It is accepted that the sexual assault on the victim is an aggravating feature of the present case which had to be reflected in the sentence. But it is argued that the judge below did properly reflect that by increasing what otherwise would have been the appropriate term of imprisonment to one of six years. That, it is said, reflects all the aggravating circumstances pointed to on behalf of the Attorney General. Mr Smith accepts that section 80(2)(b) could apply here, but he contends that that provision does not need to be applied. In essence his argument is that the public would be adequately protected by the sentence imposed by the judge below.

We bear in mind that the authorities relied on by the Attorney General are inevitably of limited assistance because the facts of manslaughter cases vary so much and the range of sentences has to reflect that. Cases like Silver do indicate that on a plea of guilty to manslaughter because of the absence of the intent necessary for murder, even where great violence was used on the victim, a sentence of five years will often be appropriate where there is no weapon employed. That is, in our view, consistent with the decision in Tzambazles, where six years' imprisonment was upheld by this Court. There, there was no plea of guilty and it seems to us that that is consistent with the decision in Silver.

A term of five years' imprisonment may seem surprisingly low to some observers in cases such as this, but it reflects two factors. First, where a plea is accepted on such a basis to manslaughter the sentencing judge has to proceed on the footing that there was no intent to kill, or even to cause serious injury to the victim. That is a very important consideration and it is something always to be borne in mind by prosecutors and judges before such a plea on a murder indictment is accepted in the first place.

Secondly, a sentence of the order we have indicated also reflects the credit to be given for a plea of guilty on the normal principles. However, it is to be noted that, as was said in Silver, aggravating circumstances can and normally should lead to a longer sentence than five years. In addition, where important factual matters are put in issue by the defence, the credit for a plea of guilty may well have to be reduced and normally will be reduced.

Approaching this matter, first, as a commensurate sentence, it seems to us that with no Newton hearing, but simply a straightforward plea of guilty demonstrating remorse, a term of around five years' imprisonment could have been appropriate as a starting point, despite the offender's record. But the offender here did contest the manner of the victim's death, seeking to reduce his blameworthiness. Of even greater significance is the violent sexual assault by the offender on this victim. Any sentence in this case had to take into account the extent of the violence used by the offender, including that which was not causally connected to her death. The forceful penetration of her anus by some object, which must have caused her great pain and humiliation, is an aggravating feature which needed to be reflected in the length of the term of imprisonment. In our judgment, it was not adequately reflected in the term imposed in the court below. This was a case, which, at first instance, called for a sentence as a commensurate sentence of between seven and eight years.

But the matter does not stop there. All the evidence from his record of previous convictions indicates that this offender is a man who cannot control his violent instincts, especially when he has been drinking. There have been regular convictions for offences of violence against the person as we have already pointed out: four under section 20 of the Offences Against the Person Act for wounding or grievous bodily harm, five of assault occasioning actual bodily harm, plus a common assault and an aggravated burglary. Section 80(2)(b) of the Act of 2001 requires the court as a duty, where the offence is a violent or sexual offence, to impose a longer than commensurate term where that is necessary to protect the public from serious harm from the offender. The term is to be of a length as is, in the court's opinion, necessary to protect the public from such harm. The present offence of manslaughter qualifies as a violent offence under the Act.

We have asked ourselves whether a longer than commensurate term was necessary in this case to protect the public from serious harm from this offender. We are not impressed by the argument that his victims in the past have all been male, sometimes injured in public houses when the offender has been drinking, whereas the present victim was female. They are, all of them, members of the public put at risk of violent attack by this man, who, it seems to us, readily resorts to violence. In our opinion a longer sentence than the commensurate one earlier indicated was and is necessary to protect the public from such harm. Such a sentence should have been imposed here and at first instance it should have been of the order of ten years.

We have to allow for double jeopardy, because this is a reference by the Attorney General and this man is now being sentenced for a second time. Making such allowance, we quash the sentence of six years and in its place we put one of nine years' imprisonment. As that is passed as being of an appropriate length to protect the public, we quash the order under section 116 of the Act of 2000 ordering his return to prison for 137 days. That means that the total sentence we have substituted is one of nine years' imprisonment.