Thornley, R. v

The appellant, James Thornley, is now aged 44. There are a number of blemishes recorded against him, some for violence, but they are very old and of a different scale to the events which we now have to consider. Although he is not a man of good character, effectively he is to be treated as such for present purposes.

On 12 October 2010, in the Crown Court at Teesside, before Calvert-Smith J and a jury, the appellant pleaded guilty to manslaughter by reason of provocation. That plea was accepted. He had earlier been indicted for murder. He had offered to plead guilty to manslaughter on the ground of provocation. During his trial for murder he suggested in his evidence, although Mr Martin Bethel QC was not able to advance argument on his behalf, self-defence, accident, or lack of intent. In the result the jury failed to reach a verdict. Accordingly, he fell to be sentenced on his guilty plea for manslaughter by reason of provocation. On 13 October he was sentenced to sixteen years' imprisonment. Appropriate orders were made in relation to the time he had spent in custody on remand and for the forfeiture of the two knives which form part of the narrative of this case. He now appeals against sentence with the leave of the single judge.

The facts may be taken shortly. On the evening of 26 June 2010 the appellant and his wife hosted a barbecue for their friends and neighbours in the garden of their home. One of the reasons why the barbecue was organised was to seek to improve the relationship between the appellant and his neighbour, Mark Sweeney. There had been some friction between them earlier that week following an argument over a practical joke. That had culminated in the appellant calling the police.

At the barbecue both the appellant and Mr Sweeney drank alcohol. Apparently all went well to start with, but something went wrong. As Mr Sweeney left the barbecue he and the appellant exchanged words, which escalated to shouting and finger-pointing. Some of the other guests separated them and the two men went to their respective homes, Mr Sweeney punching a fence in anger on his way. He quarrelled with his partner and then returned to the appellant's property. Mr Sweeney was much more strongly built than the appellant. On this occasion the appellant armed himself with a knife and went outside, but his wife disarmed him. Mr Sweeney left. That should have been that.

Mr Sweeney became very angry and returned to the appellant's home on a second occasion. The appellant's wife tried to intervene. An altercation began between them. The appellant armed himself with a second knife and went out of his kitchen into the garden to confront Mr Sweeney. A struggle followed. The appellant's wife tried to protect him. Mr Sweeney took hold of the appellant and put seized him around his neck. The appellant then deliberately stabbed him once in the right side of the stomach and once in the left side of his back above the kidney. These were severe blows. They caused disastrous bleeding.

Mr Sweeney was taken to hospital. Surgery to remove his spleen and left kidney was organised, but, as a result of extensive bleeding from his liver, he suffered cardiac arrest. He was certified dead the following morning. This was a catastrophe for the people who knew and loved him. We have read the victim impact statements. We have read the statement of his partner. We fully understand the suffering and grief of which she speaks, not only for herself but for her children and for Mr Sweeney's family. She is devastated and heart-broken. We have also read Mr Sweeney's mother's statement. We do not need to describe how she must feel and will undoubtedly feel for the rest of her life.

After the attack the appellant went back into his kitchen and washed the knife. He then called the police. He made a complaint that Mr Sweeney had tried to attack him, but did so without mentioning what had happened to Mr Sweeney. When the police arrived the appellant was arrested. He was under the influence of alcohol to such an extent that the interviews were postponed. When he was eventually interviewed he initially said that Mr Sweeney had attacked him for no apparent reason. He denied having had anything in his hand at the time. He then changed his account to say that he had gone out with a knife in order to threaten Mr Sweeney, but that the actual injuries had been caused by accident when he stumbled as Mr Sweeney threw a punch at him.

At the trial where the jury was unable to reach its verdict the appellant suggested that his wife, who had stood by him throughout, had given evidence which was untrue.

As we have indicated, not long before the retrial was due to start, the Crown accepted the plea to manslaughter on the ground of provocation.

The judge's careful sentencing remarks give a clear indication of the reasons for his conclusion that sixteen years' imprisonment was the appropriate sentence. He noted that when he had returned to the appellant's property Mr Sweeney was unarmed but that on this occasion he (Mr Sweeney) was intent on a fight with the appellant. The judge noted that, notwithstanding the efforts of the appellant's wife, Mr Sweeney had taken hold of the appellant by the throat and that at the time when he picked up the knife the appellant may reasonably have believed that his wife was in some danger. On the other hand, the judge was satisfied that when he picked up the knife the appellant had not at that point lost his self-control. He therefore took the knife into a dangerous situation when in control of himself, thereby risking not only the life of Mr Sweeney, but his own life and indeed that of his wife. The appellant's loss of control must have been temporary and he regained it within a very short time as he had tried to conceal the evidence of what he had done. The judge attached significance to the fact that the appellant had tried to "duck out of" his responsibilities.

The judge analysed the way in which sentencing problems in relation to offences of manslaughter by reason of provocation had been under discussion and subject to developments and changes for fifteen years. He referred to an earlier decision of this court in 1996 which set a guideline of a normal term of ten to twelve years' imprisonment; to the implementation of Schedule 21 to the Criminal Justice Act 2003; to the way in which the release provisions of the 2003 Act worked after that Act was implemented by contrast with the situation before; to the Sentencing Guidelines Council's Definitive Guideline in relation to offences of manslaughter by reason of provocation; and to the fact that more recently Parliament had raised the minimum term for those committing murder, having taken a knife to the scene, from fifteen years to twenty-five years. He also considered the disparity which has emerged between the normal tariff sentences in cases of murder and cases of manslaughter by provocation. Having examined all this material, he concluded that the appropriate sentence was sixteen years' imprisonment.

The analysis of Calvert-Smith J in relation to the developing thinking of the courts, and indeed the legislature on the difficult problem of sentencing in cases of homicide manslaughter by provocation, was examined by Mr Bethel. Our attention was concentrated on the language of section 125 of the Coroners and Justice Act 2009 and on the way in which the statute requires the court to approach sentencing decisions in cases where the crime in question has been subject to a definitive guideline. He suggested that the judge should have focused his attention on the Sentencing Guidelines Council's Definitive Guideline to the exclusion of any other considerations.

We disagree. The "interests of justice" consideration which now, and we assume always has and always will underpin the work of the Sentencing Guidelines Council (now the Sentencing Council), undoubtedly involves consideration of the subsequent thinking of this court and of the legislature on sentencing issues which may impact on every original definitive guidance. Just as the guidelines are not tramlines -- an observation made time and time again -- nor are they ring-fenced. Since the definitive guidance was issued in November 2005 there have been at least four developments relevant to the sentencing decision in cases of this kind. First, this court has addressed the issue of knife crime generally and the need for courts to be alert on appropriate occasions to impose deterrent sentences on those who carry knives. Second, in more recent times the court has come to appreciate and address the impact of Schedule 21 to the 2003 Act on sentencing as it applies to cases of manslaughter, not because Schedule 21 is directly concerned with manslaughter, but because it identifies aggravating and mitigating features which may well be relevant to any cases of homicide, whether manslaughter or murder; but also because of the disparity (as Calvert-Smith J put it) between the practical consequences of sentences imposed for the offences of murder and manslaughter, which, depending on whether the defendant was convicted of murder or manslaughter, was becoming excessive.

The weight to be attached to decisions of this court on sentencing issues or policy is, in our judgment, undiminished by the issue of guidelines, whether by the Sentencing Guidelines Council or the Sentencing Council. If it had been the intention of Parliament to indicate that somehow or other the authority of this court had been reduced in any way, the language would have had to have been express and unequivocal. It is not.

Next we reflect on legislative changes since November 2005. Since then Parliament has introduced into Schedule 21 a specific provision relating to the use of a knife as a murder weapon. And finally, lest we overlook it, only a few months ago the entire law on provocation was changed by legislation. These changes cannot be ignored by sentencing judges on the basis of a guideline issued in November 2005. 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.

In any event, the Sentencing Guidelines Council's Definitive Guideline for Manslaughter by Provocation in circumstances such as the present offers a starting point of twelve years' custody, but a sentencing range from ten years to life imprisonment. That provides an ample bracket, which makes allowance for the changes and developments indicated by this court in its judgments, or indeed by the legislation. Any sentence within that range would be consistent with the proper application of the guideline.

Mr Bethel sought to invite us to consider the decision of this court in R v Douglas [2007] 1 Cr App R(S) 334. However, Douglas was a completely different case to the present. Mr Douglas had been subjected to an attack by a gun and by a knife before he committed the manslaughter of which he was convicted.

We return to the facts of this case. The aggravating features are plain. The appellant armed himself deliberately with a knife on a second occasion. After the stabbing he behaved in an entirely selfish way in order to divert attention away from himself as the individual responsible for Mr Sweeney's injuries and for his death. On the other hand, taking a measured, balanced look at how it came about that the appellant armed himself with a knife for a second time, we have come to the conclusion that insufficient allowance was made for the fact that at the time when the appellant picked up the knife, his wife was engaged in an altercation with the deceased, a powerful man, who was in an angry mood and spoiling for a fight with the appellant, and who had then physically taken hold of him by the throat at the time when the stabbing occurred. The appellant did not act in self-defence; the violence that he used was wildly excessive. But all this took place in his own garden at the end of an afternoon where a lot had gone wrong.

Looking at the circumstances in which the appellant armed himself with, and used, the knife, we think that a sentence of sixteen years' imprisonment was too long. The appropriate sentence that we shall substitute is one of twelve years' imprisonment. To that extent this appeal will be allowed.