Attorney General Reference Nos 38, 39, 40 of 2007

Melvin Baldwin and William Hague lived together in a one bedroom flat in Shipley. Mr Baldwin knew the 1st offender, having met him while both were serving prison sentences. Mr Baldwin had a number of convictions involving sexual offences against male children.

On 7th September 2006 the offenders went to the victim's flat, together with a 4th man who was never charged. The 3rd offender drove the group to the flat. The 1st offender was able to gain entry because Mr Baldwin knew him. The 2nd offender took with him an iron bar and the 3rd offender had a rolling pin. Having gained entry to the flat, the 3rd offender stood in front of Mr Baldwin, tapping the rolling pin on his hand in a threatening manner. The 2nd offender stood behind Mr Baldwin, holding the iron bar.

The 1st offender ransacked the bedroom. The 2nd offender started demanding money. Mr Baldwin refused and the 3rd offender said 'Do him'. The 2nd offender struck Mr Baldwin with his fist, causing Mr Baldwin to fall backwards into his chair. It was this blow which was to prove fatal.

The 3rd offender then pinned Mr Hague into this chair by holding the rolling pin against his throat. The offenders demanded the keys to a small locked metal box, but, when the keys were handed over, they discovered that it was empty.

The incident ended when Mr Baldwin stood up and brandished a sherry bottle. The offenders left, taking a quantity of electrical items including DVD players and mobile telephones. On leaving the premises the 2nd offender punched Mr Hague twice on top of his head. Mr Hague thought that it was in frustration at the lack of goods.

On Friday 15th September Mr Baldwin complained of pain in his head. He was taken to hospital by ambulance. A scan showed that blood had collected within his skull and was compressing his brain. He was declared dead at 9.17 p.m. on the same evening. Mr Baldwin had had a heart complaint in respect of which he was taking warfarin which exacerbated the subdural bleeding. (The sentencing Judge said that the 2nd offender had been unaware of this).

The 1st offender was arrested on 16th September. The 2nd and 3rd offenders were arrested on 19th September. The offenders were interviewed.

The 1st offender said that they had gone to the victims' flat, at the suggestion of the 3rd offender, to scare Mr Baldwin and take some property. He had not intended that there should be any violence and he had not seen any weapons. He had agreed to go because on one occasion in the past Mr Baldwin had made an indecent approach to him while he was asleep.

The 2nd offender initially made no comment but then said that the others had suggested the idea to him and that the intention had been to scare the victims. He asserted that he had had no weapon and denied having punched Mr Baldwin. He indicated that he disliked paedophiles because his father had abused his sister.

The 3rd offender said that he had been the lookout. He admitted that he had had the rolling pin but said that it had been handed to him by the 2nd offender.

Some of the stolen property was recovered but some had already been sold.

The 1st offender had 34 previous convictions for 122 offences, starting in 1988 when the offender was 11 years old. Most of these were offences of theft and burglary. He had one conviction for attempted robbery and had been sentenced to 33 months' detention. His longest sentences was one of 4 1/2 years' imprisonment for burglary of a dwelling and assault occasioning actual bodily harm.

The 2nd offender had no previous convictions and one caution for an offence of criminal damage.

The 3rd offender had 7 previous convictions for 14 offences. These included an offence of burglary and an offence of possession of an offensive weapon in respect of which he served a short custodial sentence. The remaining offences were mainly motoring matters."

"No guideline is provided for categories 4 and 5. Violent personal robberies are often accompanied by other serious offences which affect sentencing decisions. For professionally planned commercial robberies, existing case authority is still valid and this is summarised in Part 2."

At page 15 the Council said of robberies in that fourth category, namely violent personal robberies in the home:

The decided cases to which we have been referred indicate, in our view, that sentences in cases such as this, where there is a single offence and the offender has pleaded guilty, range between four and seven years' imprisonment. Where in that bracket the appropriate sentence comes must depend on all the relevant circumstances, among which the offender's record and character will be important, as will be the timing of the guilty plea: an early plea or an early indication of a guilty plea removing a cause of anxiety to the victim.

Here the offender's record and the act of gratuitous violence would have led the members of the Court to have imposed a sentence greater than the four-year term passed by the judge. We consider that the sentence passed was lenient but in the light of the comparable cases brought to our attention we cannot conclude that it was unduly lenient. The sentence falls at the bottom end of the range of sentences which are permissible, as disclosed by the cases we have read. This was a case where the guilty plea was indicated at a very early stage and there were indications of remorse on the part of the offender, and of a desire to reform which appeared in the reports and which the judge accepted and took into account. We observe that the up-to-date report from prison supports those parts of the pre-sentence report."

The victim of the offence, David Small, lives in a two bedroomed detached bungalow in Locking, Weston Super-Mare. At about 6.30 pm on Saturday 25th January 2003 he was alone in his lounge watching television when his doorbell rang. He opened the door and saw a white male who turned out to be the offender smiling at him and a black male standing behind him. The black male squirted liquid into his face. Fortunately this had no lasting effect on him. The offender then barged the victim backwards and punched him several times to the face. He pointed a pistol-type gun at him. The gun had a 6 to 7 inch long barrel. The victim however appreciated that it was not a real gun. It was in fact a gun capable of discharging pellets if it was in working order, but it was not even in working order.

Having entered the flat the offender demanded that the victim should tell them where the safe was and that way he would avoid getting hurt. The victim responded that he had no safe. That response was indeed true because in May 2002 he had been the victim of another burglary in which his safe, containing a substantial amount of money, had been stolen and he had never replaced it.

The two men then pushed the victim into his kitchen and tied his arms up with zip ties. The accomplice switched off the victim's mobile telephone and put it in his pocket. They repeatedly asked where the safe and money were. He was dragged to the hallway and then into his bedroom and forced face down on the bed. The two men continued to repeat their demand that he should reveal where the safe was. Eventually the victim told them that there was some money in the chest of drawers by the bed. The accomplice emptied the drawer and took some £2,000 from it and also loose change from some jars.

The offender then tied up the victim's knees and feet using his own belt and ties which he took from the wardrobe. They stole his camcorder and then put his vest over his face. The victim heard the offender say, "Go and get a knife, we'll have to cut him". The victim could then hear his house being ransacked and eventually heard them say that there was no safe. Then the offender went back to check the victim and noticed that some of the ties had come off. His response was to punch him again several times to the head. He told the victim that he should not leave until an hour after they had left. He threatened to harm his son if they did not do as they said. The offender then took the victim's wallet from his back pocket, which contained cash, his driving licence and bank cards, and they then left the premises.

Once they had gone Mr Small looked round his house and saw that both his and his son's bedroom had been ransacked and were a mess. He telephoned the police. When the police arrived they found inside the front door of the porch entrance the remains of the firearm (the one not in working order) that had been carried. They also noticed that Mr Small's face was bleeding and swollen.

...

On behalf of the Attorney General it is submitted that there were a number of aggravating features to this case. The first is that the attack was clearly planned. The second is that the offence involved two individuals attacking a single victim. The third is that the attack took place in the evening. The fourth is that actual violence was used involving the victim being tied up, his face covered and his being punched on more than one occasion. The fifth is that the offender was carrying an imitation firearm. The sixth is that a significant amount of property was stolen. A further aggravating feature was present, in that the offence had been committed fifteen days after the offender had been made the subject of a community rehabilitation order. That list of aggravating features identified by the Attorney General omits the factor that we view as being very serious that this attack took place in the victim's own home, a place where above all others he ought to be entitled to feel safe.

It is recognised on behalf of the Attorney General that there are mitigating features in the case. The first is that the offender pleaded guilty, although it has to be recognised that the evidence against him was overwhelming. The next is one to which the sentencing judge attached importance, and that was that the victim appreciated that he was not being confronted with a real firearm. In all the circumstances, it is submitted that the sentence of three years' imprisonment did not adequately reflect the gravity of the offence."

In deciding what was the appropriate sentence, the court said this:

The offender is 32 years of age. He has not served a previous custodial sentence. On 29 January 2003, together with two others, the offender went to a block of flats in Sutton. They rang the door bell. One of the men inside the flat went to answer. When he opened the door he was confronted by the three men, two of whom were armed with knives; one of those was the offender. They demanded money. The person who opened the door was pushed against the wall. When he denied having any money, he was pushed to one side as the intruders entered the flat and went upstairs.

The offender then confronted the other occupant of the flat, grabbed him by the throat, pushed him down onto the bed, threatened him with a knife and ordered him to remove his watch. He demanded money and when the man denied that he had any, the offender attempted to slash at his face, threatening to stab his eye out. He terrified him. One of the other intruders ripped a gold chain from the man's neck. There were further threats, in particular in relation to the cannabis which it was apparent the two occupants of the flat were smoking. When it had been identified one of the three intruders took it. There were persistent demands for money.

The offender then turned his attention to the other occupant of the flat whom he pushed against the wall and pressed a knife to the side of his face towards his mouth. The intruders then picked up a set of keys, took a portable television set, an electronic game machine, mobile telephones, jewellery and the cannabis. They then left. They had clearly terrified both occupants of that flat.

Fortunately the offender and those with him were seen escaping from the flat and getting into a car. The registration number was taken by a local shopkeeper which enabled the police to go to the offender's home address where he was arrested. He was identified later by both occupants at an identification parade.

At the trial he sought to blame those in the flat for burglary, saying that all he had intended to do was to obtain items which had been stolen from him. The offender had 13 previous convictions, but had never received a custodial sentence. In a pre-sentence report he denied having carried a knife. The probation officer assessed him as posing a risk of harm to known adults but not to the public at large.

This was clearly a planned offence by three men who went armed to the premises in question. The use of the knife did cause injury although it was a relatively superficial injury. The offence took place during the hours of darkness."

"That the offence was not sophisticated. In that

• One of the offenders was well known to the victim.

• No attempt was made to cover their faces.

• Whilst weapons were used to intimidate the victim, they were not used to inflict any violence.

• As soon as the victim fought back by raising the sherry bottle the offenders fled the premises.

• The actual violence used was very limited in nature as well as duration.

• In addition to the single punch to the deceased, the offender hit William Hague twice on the top of the head. No injury was caused, and the victim described the blow as being more in frustration than anger."

The judge was right to say that cases such as this present a difficult sentencing exercise. A sentence must reflect the seriousness of the offence. The seriousness depends on the culpability of the offending conduct and on the harm that has resulted from it. Difficulty arises where there is a wide disparity between the culpability of the offender and the harm that he has caused. In the crime of manslaughter the harm caused is an element of the offence. No harm can be more serious than the death of a victim. Its impact usually extends, as it does in this case, to the relatives who have lost a loved one. They may, understandably, feel that no sentence can properly reflect the harm that has been caused. Because of the harm caused, the offence of manslaughter will usually, though not inevitably, attract a custodial sentence, regardless of the nature of the wrongdoing that has caused the death.

It is right, however, that the length of the sentence must reflect the culpability of the offender. This can vary widely in the case of manslaughter from violent or reckless behaviour that foreseeably carries the risk of causing death, to a case where death results from an unlawful act as a consequence of a fortuity which the offender could not reasonably have foreseen. Death resulting from a single punch usually falls into this category.

The circumstances in which the punch was delivered will have a significant effect on the length of the sentence; but where the consequences of the punch were not reasonably foreseeable, care must be taken to see that the effect is not disproportionate."

At paragraph 28 the Lord Chief Justice said that the sentence range was between 12 months, where there is a guilty plea and no aggravating circumstances, through to four years, where there are aggravating circumstances, depending on the particular facts. In that case a sentence of two and a half years' imprisonment was reduced to one of 12 months' imprisonment. That case is a useful guide, but does not deal with the situation where the manslaughter takes place during the course of a robbery in someone's home.

The attempted burglary was the first in point in time of the offences which those offenders committed. They had driven together to the village of Painswick in Gloucestershire in 14 August 2005 and found themselves at the Painswick Hotel at about 8.30 that evening. The hotel receptionist was alerted to the fact that there might be some intruders and eventually found, it would appear, the offender Botchett in the process of climbing into a ground floor guest room. The offender Richards was behind him. On realising that they had been seen, both men ran off. They were seen running from the hotel by a couple walking their dog and moments later the same couple saw the offenders in a motorcar. It would appear that during the course of the evening (it is not known precisely when) a Siemens mobile phone was stolen from a car in Painswick. That in fact was ultimately used to place - because it was used by the one of the offenders - the offenders in the area later that evening at Hawkwood College. That is an institution providing residential courses situated some two miles south of Painswick, with accommodation attached to it. It also has in it accommodation for a caretaker, who was a Mr Jordan, and also a flat which was occupied by the deceased, Mr Hart.

The college site is very secluded. At about 9.00 pm, some half an hour after the incident at the Painswick Hotel, Mr Jordan, who is 53 years old, heard muffled voices downstairs, and then followed footsteps coming up the stairs to where he was, which was in his flat. He stepped out onto the top of the staircase. He saw somebody, said "Hello", at which point the two men were seen going back down the stairs and going out of the building. Mr Jordan followed and was met by the offenders at the porch. Mr Jordan asked what they were doing there. Richards claimed that they had run out petrol. Mr Jordan was unconvinced by this explanation and as they turned to walk away from the building he decided to follow. As he passed the flat of Mr Hart he attracted his attention and asked him to accompany him. They followed the offenders to the car park area, which is some distance from the main building. When the offenders got to the car park the offender Botchett got into the passenger seat of the car and closed the door. The offender Richards opened the driver's door. Mr Jordan, who was thoroughly suspicious of both of these men, thought that Richards had produced a screwdriver but it may well have been the key of the car. At this stage Mr Hart decided, unhappily, to intervene, and took up, as Mr Jordan described it, a typical fisticuffs attitude to the offender Richards, who said to Mr Hart, "Don't be aggressive", at which the deceased said he was not being aggressive. The offender Botchett then decided to take matters into his own hands. He leapt out of the car and went for Mr Hart. In the basis of plea which was submitted to the judge in the first instance, he admitted that he struck Mr Hart on at least two occasions, one of those blows causing Mr Hart to fall to the ground. That was explained to the judge as being "hand-offs", but it was accepted that both were powerful blows. The result was that Mr Hart fell to the ground, struck his ahead, and sustained what proved to be, as a result, a fatal injury to the brain. The offender Botchett was not content to leave the matter there. He then proceeded to attack Mr Jordan. He struck Mr Jordan a number of blows. We have seen the results in photographs which were taken of Mr Jordan later that evening. His eyes were severely swollen. They were purple. The severity of the injuries sustained by Mr Jordan was such that the paramedic who attended thought that the injuries had been sustained by his having been stamped on, there was so much swelling. The description of the injuries at the hospital where he was taken for treatment were that he was suffering from gross bruising of both orbital regions, bilateral subconjunctival haemorrhaging. He also had a chipped tooth.

The offender Botchett, meanwhile, whilst Mr Jordan was on the ground, stole £50 from Mr Jordan's pocket. Those were the facts which gave rise to the indictment.

In the circumstances that we have described, the Attorney-General submits that the sentences on both offenders were unduly lenient. He points to the fact that the offence of manslaughter was committed effectively in the course of a burglary, albeit that the two premises which were entered by these offenders could be described as institutions rather than domestic houses, nevertheless they were both occupied: a hotel on the one hand, and the college on the other, where there were the residential flats.

The attack on Mr Hart was in order to escape. The attack on Mr Jordan would appear to have had the same motive but would also appear to have been entirely gratuitous, as Mr Jordan from the evidence before us does not appear to have been attempting to play any part in the proceedings.

The offender Botchett has nine previous offences of burglary, one of previous assault on police, a conviction for robbery and a conviction for affray. Further, he has been sentenced to a two-year community order for theft, criminal damage and obstructing an officer the day before the commission of these offences. As far as the offender Richards was concerned, the killing was effected during the course of committing a burglary and the same comments as to the nature of the burglaries apply to him as to the offender Botchett. His criminal record includes 20 previous convictions for burglary of both dwelling houses and non-dwelling buildings. He was at the time on licence from a sentence of 33 months' imprisonment which had been imposed for offences of burglary.

As far as the mitigating features were concerned both offenders had ultimately pleaded guilty. Both expressed remorse. Neither had set out that evening with violence in mind and, as far as the offender Richards was concerned, he played an entirely passive role in the incident which resulted in the death of Mr Hart and the injuries to Mr Jordan."

"But nonetheless, at the end of the day one of the critical features of sentencing in manslaughter cases is that the court must take into account the fact that there is or was no intent to cause really serious harm or to kill, and that is inherent in the offence with which the court is concerned. Nonetheless, looking overall at the facts presented in this case, this court is of the view that the appropriate sentence for manslaughter should have been in the region of 10 to 12 years before any discount for plea. That is substantially in excess of the 8 years which this sentencing judge considered was appropriate and which he proceeded to use as the base for the sentence of 5 years and 4 months on the offender Botchett, that discount being reached by reason of the plea of guilty."

"This is a case involving one punch to the victim's cheek, which caused him to sit back down in his chair. The offender could not have foreseen at the time that he administered the blow that it may result in death. In addition even after the blow was struck the offender could not have foreseen that death may follow. This is not a case where offenders flee the scene leaving the victim in a very bad state of health. When the offender fled, the victim was conscious and not displaying the physical signs of one who had been badly injured. The victim himself did not realise the damage that the punch had caused him, and accordingly did not seek medical attention at the time. It was not until eight days later that he showed signs of becoming ill."