Calvert, R v

MR JUSTICE HICKINBOTTOM: The appellant was born on 12 May 1993. His friend, Luke Howard, was about a year older. The two young men were in each other's company a good deal, and much of that time was spent bickering and winding each other up.

On the evening of 29 August 2008 they were part of a group of about twelve youths who gathered at the home of one of their number, Thomas Chiocchi. They spent the evening consuming large amounts of alcohol and some of them, including the appellant and Luke, also took drugs, including cocaine. By about 1 o'clock the following morning there were only four of them left there, including the appellant, Luke and Thomas. During the course of the evening, there had been the customary needling between Luke and the appellant. Luke had a screwdriver in his possession with which he poked and stabbed the appellant in the legs, superficially but with enough force to draw blood, goading him to stab him in return. At one point, the appellant did indeed pick up a knife and said he would use it if Luke did not desist. Their friends removed both the screwdriver and the knife at that stage, but Luke recovered the screwdriver during the course of the evening. Although this needling conduct appears to have continued on and off throughout the night, the appellant and Luke Howard at one point left the house together to purchase vodka and cigarettes without anything adverse happening.

The final incident broke out just before 7am when Luke’s behaviour became more aggressive and volatile, after he had asked the appellant, who was lying on his back on the bed, to move his legs out of the way. The appellant was reluctant to do so. Luke suddenly and without warning jumped up on to him, straddling him and trapping his arms down by his sides. He gripped the appellant with one hand round the throat and began thrusting the screwdriver towards the appellant's face, trying to poke him with it. The appellant managed to free one arm and he felt around for something with which to strike Luke to get him off. What he picked up was a knife - not the knife with which he had previously threatened Luke, but another knife - and he struck out at Luke to fend him off.

He proceeded to stab Luke twelve times in a frenetic manner. The Home Office pathologist confirmed that the distribution of wounds was such as to be consistent with the appellant's account that he was striking out in panic and at random. The pathologist also confirmed the appellant's version of events that, despite the number and nature of the wounds, Luke was still able to act purposefully throughout the incident, which lasted for 5 to 15 seconds. He continued to try to attack the appellant with the screwdriver.

Eleven of those twelve blows with the knife would not have been life threatening, either individually or in combination. Unfortunately, one of the two blows with the knife to Luke's front struck an artery, causing catastrophic loss of blood and his death.

The appellant left the scene without appreciating how serious the wounds to Luke were. He went home. When later that day he was told that Luke's condition was critical, he was extremely upset. He wrapped up the clothes he had been wearing and immediately took them to the police station where he admitted his part in the incident. Later that day, he was told that Luke had died, and he was charged with his murder.

He was tried in the Crown Court at Liverpool, where he was found not guilty of murder but convicted of manslaughter on the basis of provocation. On 19 February 2009 he was sentenced to 7 years' detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000, with a direction under section 240 of the Criminal Justice Act 2003 that 172 days on remand should count towards that sentence. It is against that sentence that the appellant now appeals, with the leave of the single judge.

Although put in a number of ways, there is essentially one ground of appeal relied upon by the appellant, namely that the judge failed properly to take into account the degree of provocation suffered by the appellant, particularly given his young age, with the result that the sentence of 7 years is wrong in principle and manifestly excessive.

We find that submission compelling. The sentencing judge was referred to, and expressly took into account, the Sentencing Guidelines Council's Definitive Guideline on Manslaughter by reason of provocation as he was, and we are, bound to do. It categorises the offence of manslaughter for the purposes of sentencing by reference to three identified levels of provocation to which the offender was subject, namely “low”, “substantial” and “high” - although of course in reality there is a range of provocation which is a continuum without any hard line between the identified levels and, as the guideline makes clear, factors other than the degree of provocation may also aggravate or mitigate a particular offence.

The judge considered that the provocation suffered by the appellant fell within the middle category (that is, “substantial”) which has a guideline starting point of 8 years' custody and a range of 4 to 9 years. Expressly referring to the appellant's age (15 years at the time of the offence, conviction and sentence), he imposed the sentence of 7 years.

The primary submission of Miss Santamera for the appellant was that the judge erred in not considering that there was a high degree of provocation in this case, which category has a starting point of 3 years' custody and a range of up to 4 years. Alternatively, if the judge was correct in categorising this offence in the middle category, then he erred in not placing it towards the bottom of the sentencing range of 4 to 9 years.

As we have said, the range of provocation is on a continuous scale, but in this case we consider that there was certainly a very significant degree of provocation. The sentencing judge accepted that the appellant felt reasonably and justifiably in substantial fear when he was pinned down by Luke on the bed and Luke attempted to stab him in the face with a screwdriver. The judge found that he had grabbed the knife simply because it was the nearest thing to hand but, having picked it up, he knew it was a knife and he knew he was stabbing Luke. Although he began with the wish and purpose of defending himself from the screwdriver attack, his action in stabbing Luke twelve times was, in the judge's words, "totally and utterly out of all proportion to the violence that he faced from the deceased". All of those findings the judge was entitled to make on the evidence before him. They are the findings upon which we must base our consideration of this appeal.

The provocation was therefore very significant and acute, and the appellant's attack on his friend (although within seconds going grossly too far) started as one of self-defence, beginning spontaneously and without premeditation. He did not take the knife to the scene. It had apparently been brought to the room by Thomas to open wine and, in the face of the threat from Luke, the appellant had grabbed it defensively as the first thing to hand, as we have described. Luke was a year older than the appellant and three stones heavier. In the circumstances, the appellant's fear was reasonable and understandable. Furthermore, the appellant was only 15 years old at the time, and consequently could not have been expected to have reacted to the provocation or assess reasonable steps to defend himself as someone older may have done. In respect of his conduct after the offence, his remorse was substantial, immediate and patent: it is evidenced by the fact that he went to the police station with his mother as soon as he understood how serious Luke's wounds were. The Pre-Sentence Report and the more recent report from the young offender institution indicate that this remorse has continued. Many of these mitigating factors are expressly referred to in the guideline. All are relevant to the appropriateness of the appellant's sentence.

This was, without doubt, a crime with awful consequences, in which a young man with good prospects ahead of him died. We have read the letters and other documents from his friends and family, and understand and appreciate the devastating effect that his death has had, particularly on his family. However, as well as those consequences, we have to take into account the circumstances and the criminality of the appellant's actions.

In addition to the nature of the attack on Luke Howard, which was properly described as "frenzied", it was an aggravating feature referred to by the judge that the appellant had a previous conviction for actual bodily harm following an assault on not another friend but someone else he knew, in respect of which he had pleaded guilty shortly before this offence; although that was, as the sentencing judge remarked, an offence of an entirely different level of seriousness from this. On the other side of the scale, there were the substantial mitigating factors to which we have referred. At the time of the offence he was only 15 years old. He was subject to gross provocation, as we have described. He was in genuine and substantial fear for himself, and his attack on his friend, although patently and grossly excessive in the force he eventually used, was initially self-defensive and self-preservative. He was and is remorseful.

Whilst we do not consider that the judge erred in placing this case within the middle category of provocation in the guidelines - because one can imagine provocation of a much higher degree - we consider that the provocation in this case was at the top end of that category and, given the appellant's age and other mitigating factors to which we have referred, that this case fell within the lower regions of that range. In all the circumstances, we do consider that a 7-year sentence was manifestly too high.

For those reasons we will allow the appeal and impose a sentence of 4½ years' detention with the same section 240 direction.

LADY JUSTICE HALLETT: Mr Pratt, I do not know if members of the deceased family have come to court but I hope they will understand the comments that my Lord made in his judgment. We do understand their loss but you do appreciate, and I am sure you will explain to them, that we have to act in accordance with the law.

MR PRATT: Of course. His grandfather was present in court and, if I may say so, in my discussions with him his response has always been a very measured one.